{"document_id": "1965_3_708_742_EN", "year": 1965, "text": "SREE BANK LID.\n\nSARKAR DUTI ROY AND CO.\n\nApril 9, 1965\n\n(A. K. SARKAR, K. N. WANCHOO AND RAGHUBAR DAYAL, JJ.]\n\nBanking Companies Act (10 of 1949), s. 45-0 and Banking Companies (Amendment) Act (52 of 1953)-Applicabilitl/ to instalment decree.\n\nIn 1949, the Banking Companies Act was passed with a view to protect and secure the interests of depositors. [n 1953 s. 45-0 was enacted by the Banking Companies (Amendment) Act, in pursuance of the recommendations of the Banking Companies Liquidation Proceedings Committee. Section 45-0 (1) provided that in computing the period of limitation prescribed for an application by a banking company which is being wound up, the period commencing from the date of the presentation of the winding up petition shall be excluded; and s. 45-0 (3) provided that sub-s. (1) shall also apply to a banking company in respect of which the winding-up petition was presented before the commencement of the Amendment Act, that is, 30th December 1953.\n\nOn 1st May 1947, a decree for a sum of money had been passed in favour of the appellant-Bank, against the res1xmdents. The decree provided that the amount which was due on 30th May shou.ld be paid in 6 annual instalments each payatle on 30th December ftom 1947 to 1952. The decree also provided that if the respondents failed to pay any instalment within 4 months of its becoming due, the appellant shall be entitled to realise all the amounts then due, ty execution. None of the instalments was paid. On May 11, 1948 a petition for winding up of the appellant was presented and it was ordered to be wound up on August 3, 1948. In August 1956 the liquidator\n\nfiled an execu, tion application on the original side of the High Court, for realising the amounts. The applicatiOn was allowed, but the High Court, in Letters Patent Appeal, held that the application was barred by time.\n\nIn appeal to this Court, the appellant contended that in view of s. 45-0 the application was. within time; while the respondents contended that: (1) all the instalments fell due by 1st May 1948 by operation of the default clause, and therefore, the application was barred by Art. 182 (7) of the Limitation Act, 1908, by the time s. 45-0 was brought _on the statute book; (ii) the section has no retrospective operation so as to revive a debt which had become tarred at the date of its enactment; and (iii) if the default clause gave only an option to the appellant so that it could apply for execution as and when an instalment fell due, then, the instalments which fell due in 1947, 1948 and 1949 had become barred before the enactment of the sectioH; and the instalments which fell due during the years 1948 to 1952 were also not saved from the bar of limitation as the section applied only to those cases where the right to execut~ had arisen before the presentation of the winding-up petition.\n\nSH.J.~E H:\\XK 1\". ltl\"l\"l' HOY '\n\nHELD: (By full Court): Sc.:tion ~5-0 saved the oxccutim1 appli- , ation from the lnH\" of limita)ion imposed by. Art.\"182(7) of the L'mitation Act. [ll~H; 7!9A: 727D: '142A] , (ij Per Sarkar. J: Thc., right to apply for execution in resp-ect ot' the instaln1ents uncle~· the decree arose on the dates on which they respectively fell due. r113Hl .\n\nThe default clause was only intended for the benefit 6f the appellant and gave an option to the apP., llant to sµe for the entire amount or waive thebenefit of the option, and the aµpellant had not taken advantag~ of it. f713D, E, Hl .\n\nRam Culpo Bhattachar; ij, v. Ram Chunder Shame, (18S7) I.L.R. 14 Cal. 352, referred to. ,\n\n(ii) Per Sarkar, J: There 'is no reason why a distinction should have been intended between debtors, the claims against w•hom'might have become barred before the section was\\ enacted and those. the claims against whom, becazi, ie barred thereafter. In fact, the otject of fhe section would be better achieved by applying it to both classe.-.\n\n[715 F-G] ,\n\nOne of the methods by which, the object of the Act which' was lo protect depositors, cQ_uld be achieved is by extending thL period of limitation. for enforceineht--0{ the claims of a bank in liqui<lation, so tha: more money may be collected for payment to the depositors.\n\nThat be'ng so, the largest extension of the period, which the language used is capable of, must have been intended. [715~-Fl'\n\nBesides, s. 45-0(3) expressly makes. sub-s. (1}, applicable to a tanJ>ing company being wo4nd up on a petition pcesented before 30th December 1953 Under s. 45-0(1) and (3) a period which hacl._$tartedto run before that date could be excluded, and, there \\s no-hint that. s'.!!Ch exclusion is confined to cases where the right had' not become barred by that date. Sub-s. (3) must have been intended to give full retrospective effect to sub-s. (1), as otherwise. it 'need not have been enacted, beeause, sub-s. (1) would, by its own terms. apply to cases of \\\\rinding up on a.-petition presented befo:-e the Amending Act, and, considering the intention of the Act, sub-s. (3) could not have been enacted as a surplusage or ex abundanti cautela. Therefore, .s, 45-0(1) applies to applications ty the banking comanv, even when. they had oecome barred before the Amending Act. [716 B-E, H; :zp Cl\n\nPer Wa'nchoo, J: The appellant would be entitled to excbde the entire period from Uth May 1948-the date of presentation• of the winding-up application-upto the dat_e Df the execution application and would thus b<Yl>ntitled to execute the decree ior the toal of the 6 instalments due. f726 El The language bf s. 45-0(1) implies that it was meant to be retrospective and that conclusion becomes inevitable when it 1s read ·.vith sub-s. (3), in the background of the remedy . that the legislature intended to provide for the benefit of deposi, tors, Section 45-0(1) imperatively lavs down that where an application is filed by a banking company which was being wound up on or after 30th December 1953 the CMrt must exclude the .period commencing from the date of presentation of the winding up petition to the date of the application in computing .the period of litnitation. Further by virtue of sub-s (3), sub-s. (1) applies not .<Jnly to those banking companies which were being wound up on petitions pres_ented on or after the section came into force, but also to those banking companies 1where the winding-up petition was made before 30th December 1953 and whether the wind. ing up order was made before or after that date provided the banking company was in the process of being wound up when the appli-- cation was filed; and, there is no scope or the court to consider\n\nSUPREME COURT REPORTS [ 1965] 3 s.c.R.\n\nwhether the application, if filed before 30th December 1953, would be barred by limitation or not: [722H; 723 A-B, D-E; 724 E]\n\nPer Raghubar Dayal J: The appellant's application for execution is maintainable and not barred by time, because, the effect. of s. 45-0(1) is that, in applications made by a banking company which\n\nis being wound up, or for whose winding up a petition has been presented before 30th December 1953, the period of limitation is arrested on the date of the presentation of the winding up petition, and it is not material whether such date is earlier than 30th December 1953 -0r not. Therefore, the sub-section is retrospective, and an application can be made even in regard to matters with respect to which su.ch action could be taken on t'1e date of the presentation of the winding up petition, but could not be taken, because of efflux of time, on 30th December 1953. [731C; 736G. 737E]\n\nOne of the conditions for the application of the sub-section is that a \"tanking company is being wound up\", and this condition would be satisfied by all companies with respect to which winding up orders had been made either before 30th December 1953 or thereafter. There is nothing in the language of the sub-section to limit the expression to those compa11ies which respect to which winding up orders are made subsequent to that date. The provision is not for the benefit of such companies only, but, is for the benefit of all companies which would be in the process of winding up during the enforoement of the Act. This is also apparent when sub-ss. (1) and ~) are read together. So read, the period of exclusion would be available in connection with applications by a banking company which is being wound up or with respect to which a petition for winding up has teen made prior to 30th December 1953. If the provisions of sub-s. (1) can apply to the banking companies with respect to which proceedings on a winding petition were pending on 30th\n\nDeoember 1953, there is no reason why they should not apply to banking companies with respect to which winding up orders had been made prior to that date. Further, if a restricted interpretation is given to sub-s. (1), by confining it to cases where the cause of aotion was not barred on 30th December 1953, then sub-s. (3) will have no utility, because, that sub-section only provides that whatever advantage a banking company can derive from the provisions of sub-s. (1) when it is being wound up, would be available to it even if it is not being wound up, if a petition for its winding up had been presented prior to 3(fth December 1953. The only case in whi.ch the banking company can take advantage of sub-s. (3), then, would be when the cause of action foe the application has not lapsed by that date and the proceedings on a winding up application were pending on that date. But, such cases would be covered by the language of sub-s. (1) itself, foo, the cause of action would be alive on 30th December 1953 and the winding up order would be made subsequent to that date. [734-B-E; 736B, E-H] .\n\nCase law referred to.\n\n(iii) Per Sarkar and Raghubar Dayal, JJ.: Section 4&-0(1) should be read as permitting the exclusion of the entire J>€!\"iod commencing from the date of the presentation of the winding up petition where the debts became due before that date, and, in cases where the debt became due subsequently such part of that period as commences from the date of the accrual of the debt. [718E; 741F]\n\nPer Sarkar, J.: There is no reason why it should have been intended that debts which fell due before the presentation of the winding up etition but were not barred by that date• could be\n\nSRBE BANK V. DUTT ROY 711\n\nrecovered, and not those which became due thereafter. No doubt, if the sub-section is applied to the case of a debt accruing due to a banking company after the presentation of a winding up petition, such a debt would be completely free from the bar of limitation,\n\ntut since it has that effect in the case of debts which accrued due prior to the presentation of the petition and had not become barred on that date, the section must be construed as permitting the whole of the period commencing from the presentation of the petition t<> be excludedwhere in fact it could be done, and a part of that period only where the whole of it could not be excluded. [717F, H; 718C, H]\n\nCortis v. The Kent Water Works Company, 7 B & C 314, referred to.\n\nPer Raghubar Dayal, J: The appellant waived its right under the default clause of the decree and sought execution for the realisation of the various instalments. Even so the execution application was within time, beoause, a banking company is entitled to exclude the period from the date on which the winding up petition was presented upto the date of the institution of the application, from the period of limitation prescribed, and it would be illogical to hold that it is not entitled to ask that a shorter period, as the case would be, when the cause of action arose subsequent to the presentation of the winding up petition, should be excluded. It may be that this means, the entire period of limitation is abrogated with respect to causes of action arising subsequent to the date of the. winding up petition, tut it would be anomalous to hold that action can be taken with the help of the sub-section with respect to causes of action which had arisen much earlier than the date of the presentation of the winding up petition, but action cannot be taken with respect to causes of action arising subsequent to such a date if it had not been taken within the prescribed period of limitation. [740G, 741C\n\nG-H'I ,\n\nPer Wanchoo J.: The present case is governed by s. 45-0(3) because, the winding up petition was presented before s. 45-0(~) came into force, but by virtue of sub-s. (3), sub-s. (1) would apply, As there was default in the payment of the instalment due on 30th December 1947, the right to execute all the remaining instalments arose on 1st May 1948 and since that right was not waived, limitation for all the instalments began even on 1st May 1948, while the wfoding up application was filed on 11th May 1948, and so, the appellant could take advantage of the section and execute the decree for the entire amount. [726A-E; 727C-D]\n\nExclusion of time cannot take place where time has not begun to run before the date from which the exclusion begins. Therefore, in order that s. 45-0(1) should apply, it is necessary that the period of limitation for the application should have begun to run before the date of winding up petition, but should not have run out. [724-Cl\n\nOn this interpretation, in the case of instalment decrees without a default clause, the instalments which became due and were not paid before the winding up petition may be recoverable by execution, v.;+hile in the case of instalments which became due after the presentation of the petition, the exclusion provided by the section would not come into play. But if the sub-section is interpreted as stopping limitation in all cases, after the presentation of the winding up petition, it will result in another anomaly, that there would be no limitation at all in a case where the liquidator files a suit and gets a decree. [724H; 725A 1\n\nSUPREME COURT REPORTS [1965] 3 s.c.R.\n\nav1L APPELLATE JurusmrnoN: Civil Appeal No. 76 of A 1962 . • Appeal from the judgment and order dated September 22, 1959 of the Calcutta High Court in Appeal from original order No. 230/1958.\n\nA. N. Sinha and P. K. Mukherjee, for the appellant.\n\nD. N. Mukherjee, for the respondent.\n\nThe following judgments were delivered:\n\nSarkar, J. On May 1, 1947, a decree was passed in favour of\n\nthe appellant bank against the respondents by consent of parties c\n\nfor payment of Rs. 31,000 /- in the manner specified. The decree provided that if the respondents failed to pay any of the instalments mentioned in it within four months of the date of its becoming due, the appellant bank \"shall deem all . . . instalments in default and shall be entitled to realise all the said amounts by execution\".\n\nThe amounts payable under the decree by May 30, D 1947 were all duly paid.\n\nThat left a sum of Rs. 21,000/- payable by six annual instalments, each payable on the 30th December of a year, the first instalment being payable in 1947 and the last in\n\n1952. None of these instalments was paid and an application for realising them by execution was made on August 26, 1957. In the meantime a petition for \\Yinding up the appellant bank had been E presented on May 11, 1948 and an order for winding up had been made on August 3, 1948.\n\nSin~ then the appellant bank has been in the course of winding up.\n\nThe application for execution was made by the liquidator in the course of the winding up.\n\nUnder Art. 182(7) of the First Schedule to the Limitation Act 1908 an application for execution is barred 'if not made within F three years from the date on which the amount sought to be realised was payable under the decree. On December 30, 1953, s. 45-0 was introduced in the Banking Companies Act, 1949 by the Banking Companies (Amendment) Act, 1953. Sub-section (!) of that :section is in these terms:\n\nS. 45-0. (1) Notwithstanding anything to the contrary con- G\n\ntained in the Indian Limitation Act, 1908 or in any other Jaw for the time being in force, in computing the period of limitation prescribed for a suit or application by a banking coml'llnY which is being wound up, the period commencing from the date of the presentation B of the petition for the winding up of the banking com- pany shall be excluded.\n\nThe appellant bank claims that this section saves its application for execution from the bar of limitation imposed by Art. 182(7).\n\nThe respondents' answer to this contention is first that s. 45-0 has no retrospective operation; it does not revive a debt ·.vhich was already barred at the date of its enactment. Then they say that\n\nSREE BANK v. DUTT ROY (Sarkar, J.) 713\n\nall the instalments fell due on April 29, 1948 by the operation of the default clause and therefore, they were all barred under Art 182(7) by December 30, 1953 when s. 45-0 was brought on the statute book. Thirdly they say that if it is held that the default clause gave the appellant bank an option which it had not exercised and the right to apply for execution in respect of the instalments arose on the dates they respectively fell due, the instalments which fell due on December 30 of the years 1947, 1948 and 1949 had become barred before the date of the enactment of s. 45-0 and that section could not revive them and the instalments which fell due in the years 1948, 1949, 1950, 1951 and 1952 were not saved from the bar of limitation by s. 45-0 as it provided for exclusion C of a period commencing from the presentation of the petition for winding and was, therefore, confined to cases where the right had arisen before such presentation, which the right in regard to these instalments had not.\n\nFirst, as to the effect of the default clause, no real difficulty arises. It obviously gave an option to the appellant. As was said in Ram Cu/po Bhattacharji v. Ram Chunder Shome('), \"The proviso by which the whole amount of the decree becomes due upon default in payment of any one instalment is a proviso which, look at it how you will, is put in for the benefit of the creditor, the decree-holder, and his benefit alone; and when a proviso is put into a contract or security, and in 'security'\" I include 'decree,' for the benefit of one individual party, he can waive it, if he thinks fit.\" There is not the least doubt that the default clause in the case in hand was intended for the benefit of the appellant bank; the clause had no operation till the appellant bank wanted to take advantage of it.\n\nThe High Court took that view and with that I am in full agreement. The High Court further held that the appellant bank had not exercised the option to enforce that clause.\n\nBachawat J. expressly said that the appellant \"in fact has waived the benefit of that option.\" The learned Chief Justice held in view of the option, that \"the starting point of limitation will be the dates\n\n1 on which each instalment became due.\" He could have held this only in the view that the option had not been exercised. None G of the parties appears to have contended to the contrary in the High Court.\n\nThis being a question of fact it cannot be raised for the first time in this Court. On such a question of fact, the High Court's finding is binding on us. Furthermore, undoubtedly if the respondents wished to .contend that the option had been exercised,\n\nH it was for them to have given evidence of such exercise but they did not do so.\n\nNo such evidence has been brought to our notice from the records of the case. It has, therefore, to be held that the right to apply for execution in respect of the instalments under the decree arose on the dates on which they respectively fell due.\n\nThe next question as to whether s. 45-0 (]) has a retrospective operation is of real difficulty.\n\nHaving given the matter my\n\n714 SUPREME COURT REPvRTS [l £65] 3 S.C.R\n\nmost anxious consideration, it seems to me that the better view A would be to hold that it has such an operation. The general rule no doubt is, as was stated by Wright J. in In re. Athlumney,(') \"Perhaps no rule of construction is more firmly established than this-that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided B without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.\" It can no doubt be argued with force that no violence will be done to the language used in sub-s. (1) of s. 45-0 if it is read as applying only to cases where the right to apply has not become bar- C red at the date of its enactments. But there are other considerations.\n\nTwo reasons have operated on my mind to lead me to the conclusion that the general rule should not be applied in the present case. First, it is recognised that the general rule is not invariable and that it is a sound principle in considering whether the D intention was that the general rule should not be applied, to \"look to the general scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former state of the law and what it was that the Legislature contemplated.\": see Pardo v. Bingham('). Again in Craies on Statute Law, 6th ed., it is stated at p. 395, \"If a statute is passed for the purpose of protect- B ing the public against some evil or abuse, it may be allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right.\" To the same effect is the observation in Halsbury's Laws of England, 3rd ed., vol. 36 p.\n\n425. This seems to me to be plain commonsense. I.n ascertaining the intention of the legislature it is certainly relevant to enquire F what the Act aimed to achieve .. In Pardo v. Bingham(') a statute which took away the benefit of a longer period of limitation for a suit provided by an earlier Act was held to have retrospective operation as otherwise it would not have any operation for fifty years or more in the case of .persons who were at the time of its passing residing beyond the seas.\n\nIt was thought that G such an extraordinary result could not have been intended.\n\nIn R. v. Vine(') the words \"Every person convicted of felony shall for ever be disqualified from selling spirits by retail.. .... and if any person shall, after having. been so convicted, take out or have any licence to sell spirits by retail, the same shall be void to all intents and purp6ses\" were applied to a person who B had been convicted of felony before the Act was passed though by doing so vested rights were affected. Mellor J. observed (pp. 200-201). \"It appears to me to be the general object of this statute that there should be restraints as to. the persons who should be.\n\n(') (1898) 2 Q.B.D. 647, 66l~M2.\n\n(1) (1869) L.R. 4 Ch. A. 735, 7~.\n\n(1) (1876) 10 Q.B. 195.\n\nSREE BANK v. DUTT ROY (Sarkar, J.) 7lll\n\nqualified to hold licences, not as a punishment, but for the public good, upon the ground of character ... A man convicted before the Act passed is quite as much tainted as. a man convicted after; and it appears to me not only the possible but the natural interpretation of the section that any one convicted of felony shall be ipso facto disqualified, and the licences, if granted, void.\"\n\nNow the object of the present Act is beyond doubt. It is well known that prior to 1949 in our country a large number of mushroom banks had come into existence and were in the control of persons not very scrupulous or competent. Many banks came to grief and failed with the result that the depositors largely lost their moneys. It was with the object of giving relief to these innocent depositors that the original Act of 1949 and the Acts amending it were .passed. A few of the sections may be referred to by way of illustration. Section 43 of the Act provides that every depositor shall be deemed to have proved his claim for the amount sht>wn in the books of the bank until the liquidator showed reasons for doubting the correctness of the entry. Section 43A gives a right D to preferential payment upto a sum of Rs. 250 /- to such depositors.\n\nIndeed in Joseph Kuruvilla Vellukunnel v. The Reserve Bank of India(') it was observed by this Court at p. 656, \"the whole intend (sic.) and purpose of that Act is lo secure the interests of the depositors.\" There need now be no doubt about the object of the Act.\n\nOne of the methods by which that object can be achieved clearly E is by extending the period of limitation for the enforcement of the claims of a bank in liquidation so that more money may be collected for payment to the depositors. That is whys. 45-0 and its predecessor s. 45-F had been enacted.\n\nBoth extended the existing period of limitation in regard to claims by a bank against its\n\nF debtors. That being so, it would be natural to think that the largest extension which the language used is capable of giving was intended. Then I find no reason why a distinction should have been intended between debtors the claims against whom might have become barred before the section was enacted and those the claims against whom became barred thereafter. The object would be better achieved by applying the section to both classes. I, there- G fore, think that the Act was intended to have a retrospective operation.\n\nThe other reason why I think that sub-s. (]) of s. 45-0 has a retrospective operation is provided by the terms of sub-s. (3) of that section. Retrospective operation is of course a question of. the intention of the legislature and that intention has to be gathered from the whole statute.\n\nThe two sub-sections have, therefore, to be considered together: see Barber v. Pigden(') and Hutchinson v.\n\nJa11ncey ('). How sub-s. (3) is in these terms: The provisions of this section, in so far as they relate to banking. companies being wound up, shall also apply to a banking company in respect of which a petition ----\n\n(1) [In'>?l S11n1.1. :i. Rn.R. 632.\n\n(2) (1937) 1 K.B. 664.\n\n(3) (1950) 1 K.B. 574.\n\nJ,/P(JJ)iS r 7\n\n'116 SUPREME COURT REpOllTS\n\n(1965] 3 S.C.R.\n\nfor the winding up has been presented before the A commencement of the Banking Companies (Amendment) Act, 1953.\n\nIt expressly makes sub-s. (!) applicable to a banking company being wound \\IP on a petition presented before the amendnig Act.\n\nThat would indicate that the first sub-section was intended to B apply to suits and applications by a banking company in liquidation even where the winding up petition had been filed before 1he amending Act. It should, therefore, apply to all such suits or applications even when they had become barred before the amending Act. Again it is indubitable that as a result of ti1e third subsection a period which had started to run before the amending c Act is to be excluded under the first sub-section. The third subsection gives no hint that such exclusion is to be confined to cases where the right had not become barred before that Act. It expressly gives the first sub-sectiOlt a retrospective operation by permitting exclusion of an antecedent period. All this is strong indication that sub-s. (!) is to have a retrospective operation. n If that is not the intention. then it is clear to me that sub-s.\n\n(3) need not have been enacted at all for clearly the first sub-section would by its own terms have applied to cases of winding up on a petition presented before the amending Act. It applies to all banking companies being wound up and, therefore, also to such companies as are being wound up on a petition presented before that Act. It could be said that even then the first sub-section would not have a retrospective operation but would only apply prospectively to a banking company peing wound up on a petition presented before the Act. This may be illustrated by two cases. In R. v. St. Mary, Whitechapel (Inhabitants)(') Lord Denman C. J. said that a statute \"is not properly called a retrospective statute because a part of the requisites for its action is drawn from iime antecedent to its passing.\" Again in Master Ladies Tailors Organisation v. Minister of Labour and National Service(') it was observed, \"The fact that a prospective benefit is in certain cases ID be measured by or depends on antecedent facts does not necessarily ...... make , the provision retrospective.\"\n\nWhy then was sub-s. (3) enacted? It must have been to give sub-s. (!) full retrospective operation, to make it affect vested rights, If it were not so, sub-s. (3) would have been a mere surplusage or enacted ex abundanti cautela. A statute is not to be so read unless that reading is compelled by the words used. There B are no such words and I do not think that that reading is justified by the rule of presumption that a statute is not intended to have a retrospective operation. In this case particularly because of the clear intention of the Act to protect a sizeable section of the public consisting of the depositors, I feel that a reading of sub-s.\n\n(') (1848) 12 Q.B. 120 at p. 127. (\") (1950) 2 All. F.R. 525, 527.\n\n~HF.E BA:\\'K 1'. Dl\"TT ROY (Sarkar, J.) il7\n\n(3) as a surplusage or ex ab1111danti cautela would be unwarranted.\n\nFurthermore, if that sub-section was enacted merely ex abundanti cautela, then why did it not also say that the provisions of s. 45-0 would apply to a case where the winding up order bad been made before the Act'! Why was it not thought that caution was necessary to provide for such a case also? I am not saying that sub-s. (3) does not make the section apply to a case where the winding up order had been made before the amending Act. All that I am saying is that the omission of a reforence to the case of a winding up under such an order shows that sub-s. (3) was not ex abundanti cautela. It must have been intended to give full retro&pective effect to s. 45c0 including sub-s. (I) of that section.\n\nIt remains now to deal with the last point. It is said that since sub-s. (!) allows the period commencing from the date of the presentation of the petition for winding up to be excluded in the computation of the period of limitation, it can only apply to a case where the period of limitation had commenced to run before that date.\n\nThe contention is, unless it did so, the whole of the period cannot be excluded and the section permits exclusion of the whole or none.\n\nIt is, therefore, said that even if the first subsection had a retrospective operation, it could result in saving the bar of limitation only so far as the application concemed the instalment which fell due on December 30, 1947 for the petition for the winding up of the appellant bank had been presented on May 11, 1948 and. hence, before the other instalments became <lue and the period of limitation in respect of them commenced to run.\n\nI am not inclined to accept this contention.\n\nI see no reason why it should have been intended that debts which fell due before the winding up petition was presented but were not barred on that date could be recovered and not those which became due thereafter. It has to be remembered that a liquidator is not always appointed on the presentation of the petition for winding up and it does not infrequently happen that a long time elapses betwe'en the two. It has also to be remembered that liquidator would require quite some time after his appointment to get acquainted with the state of affairs of the company in liquidation and start tl\\king steps for the recovery of its dues.\n\nTherefore, there is no reason to think that it was not intended to give the benefit of the Act to a debt accruing due to a banking company after the presentation of a petition for its winding up.\n\nNo doubt if sub-s. (1) is applied to a case of a debt accruing due after the presentation of the petition for winding up, such a debt would be completely free from the bar of limitation.\n\nBut. is there any reason to thinkthat this was not intended?\n\nI find none apart from a rigid and somewhat technical reading of the words used and this Tam~ unable to accept as it to my mind. manifestly defeats the object of the Act. I here wish to point out that the bar of limitation is ccvnpletely lifted in the case of a debt accruing due before the presentation of t 1e petition for winding up which had not become time barred\n\nSUPREME COUR1' REPORTS I 1965] 3 s.c.1<.\n\nthen, and it is natural tp think that the intention must also have A been to lift the bar completely in the case of debts accruing due subsequently. There is no reason to make a distinction between the two class.es. of _debts.\n\nI may add that the complete lifting of the ban of hm1tat10n would not produce an astounding result or a great hardship. It has to be remembered that the Act is geared up to seeing that the winding up proceedings are concluded a' B quickly as possible. To ensure that, large powers have been given to the Reserve Bank of India. Therefore, the removal of the bar of limitation should not keep a debtor in suspense for an inordinately long time. It is true that the sub-section does not expressly say that the bar of limitation is totally removed in certain cases. That however is no reason for saying that it has not that effect. It C clearly has that effect in the case of debts which accrued due prior to the presentation of the winding up petition and had not become barred on that date, even though the sub-section does not expressly say so. The absence of these words, therefore, is not a reason leading to the view that debts which became due after the presentation of the petition for winding up were not intended to be D protected.\n\nIn my view, the first .sub-section should be read as permitting the exclusion of the entire period commencing from the date of the presentation of the petition for winding up where the debts brcame due before that date and in cases where the debt became E dne 'ubsequently, such part of that period as commences from the date of the accrual of the debt.\n\nI think such a reading has the support of authority. In Cortis v. The Kent Water-works Company(') it was held that a statute which enabled a rate to be made upon certain persons and permitted a person against whom the rate had been made to file an .appeal against the order making F it on his entering into a recognizance, al)owed a corporation which could not enter into a recognizance, to prefer the appeal without doing so.\n\nIt was said that any other reading of the Act would defeat the object of the statute which was to subject corporations to rates.\n\nBailey J. observed, \"But assuming that they cannot enter into a recognizance, yet if they are persons capable of being G aggrieved by and appealing against a rate. I should say that that part of the clause which gives the appeal applies to all persons capable of appealing. and that the other part of the clause which requires a recocrnizance to be entered into applies only to those persons who a~ capable of entering into a recognizance, but is inapplicable to those who are not.\" (p. 331). On the same principle I would H hold that the section permitted the whole of the period commencing from th~ presentation of the petition for winding up to be .excluded where it coulCI in fact be so done and a part of that penod onlv where the whole of it could not be excluded.\n\nAny other reading would. to my mind. defeat the object of the Act and should, therefore. be avoided.\n\n(') 7 1l .t c. 314.\n\nSREE HA!\\K r. JlCTT HOY (lran<lloO, J.) 719\n\nA In the result I would allow the appeal, set aside the judgment of the appellak bench of the High Court, and hold that the decree was fully executable. The appellant will be entitled to take all steps for such execution as arc permitted to it in law. The appellant will g•t th• costs here and below.\n\nB Wancl100, J.\n\nThis appeal on a certificate granted by the Calcutta Hih c,1urt raises a question as lo the intcrpretat10~ of s .\n\n.+5-0 of the B\"n\"ing Companies Act, No. X of 194?, (heremafter 1cekrrd to ; is the Actl.\n\nThe section was enacted 111 the present for111 by the RC1nking Companies (Amendment) Act, No. Lil of\n\n1953. c\n\nIt is necessary to state certain facts which are not in dispute now in order to sec how the question arises.\n\nThe appellant-bank tin liquidation) through its Midnapore branch got a compromise decree against the respondent on May I, 1947, for the sum of Rs. 31.000/- of which Rs. 2,155 were paid by the respondent that very day.\n\nThe decree provided that Rs. 6,885 /- were to be paid by May 9. 1947 and the balance of Rs. 22,000/- in seven instalments as under:-\n\nI. Rs. 1.000 /- on May 30. 1947.\n\n2. Rs. 2,000/- on December 30, 1947.\n\n3. Rs. 4.000/- on December 30. 1948.\n\n4. Rs. 4,000/- on December 30, 1949.\n\n5. Rs. 4,000 /- on December 30. 1950.\n\n6. Rs. 4,000 /- on December 30, 1951.\n\n7. Rs. 3,000/- on December 30, 1952.\n\nThe sum of Rs. 6,885 /- and the first instalment of Rs. 1,000 /- were duly paid, but the respondent did not pay the second instalment due on December 30, 1947, nor did he pay the subsequent instalments. On May 11, 1948, a winding-up petition was presented in consequence of which the appellant-bank was wond-up\n\nby an order dated August 3, 1948. Paragraph 5 of the compromise, which was part of the decree provided that if the judgmentdebtor did not pay any instalment and committed default, then four months after such default, all the instalments shall be deemed to be in default and the decree-holder would be entitled to recover the entire amount of the decree by execution proceedings. It appears that the appellant attempted by applications presented in 1948 and 1950 to execute decree. It is, however, unnecessary to set out the details of those proceedings at this stage. Suffice it to say that nothing was realised in those proceedings and that the proceedings st<irted on the application presented in 1950 were subsequently transferred to the High Court in view of the relevant provisions of the Act. which had come into force meanwhile.\n\nOn August 24. 1957, the appellant presented an application in tabular form for execution of the decree on the ordinary original\n\n7211 SUPREME , COl)R'f REPORTS fl965) 3 8.l', R.\n\ncivil side of the Calcutta High Court. and the present appeal has :arisen out of the proceedings following thereon.\n\nIt was stated in the application that ihe respondent had failed to pay the amount of the decree under execution and that the appellant had been wound up by an order of the court dated August 3, 1948 on a petition for winding-up presented to it on May I 1. 1948. It was B prayed therefore that the High Court liquidator who was the official receiver of the appellant be appointed receiver without security and without remuneration to collect and realise amounts payable to the respondent by the Executive Engineer, Works and Buildings Department. Midnapore Division up to a maximum limit of Rs. 35.000/-. A prayer was also made for the appointment of an c interim receiver and an interim order for appointment of such receiver was made on August 26, 1957, which order was confirmed on June 2. 1958.\n\nThe responden.t thereupon appealed and the main question that was raised then on its behalf was that the execution of the decree was barred .by limitation. The appellant on the other hand contendeq that in view of the provisions contained D in s. 45-0 of the Act, the application was within time.\n\nThe appeal court held on an interpretation of s. 45-0 that the execution was barred by limitation. It is against this order that the present appeal has been filed on a certificate granted by the High Court.\n\nThe contention of the respondent was that the execution application filed in 1957 was a fresh application and was clearly E barred by time.\n\nThe appellant met this objection on the basis of the provisions of s. 45-0 of the Act which reads as under: -\n\n\"(]) Notwithstanding anything to the contrary contained in the Indian Limitation Act. 1908 or in any other law F for the time being in force, in computing the period of limitation prescribed for a suit or application by a banking company, which is being wound up, the period commencing from the date of presentation of the petition for the winding up of the btlnng company shall be excluded.\n\nG (2)\n\n(3) The provisions of this section, insofar _as they relate to banking companies being wound up, shall also apply to a banking company in respect of which a petition for the winding up has been presented before the com- H mencement of the Banking Companies (Amendment> Act, 1953.\" I have already mentioned that the application for winding up the appellant was presented on May II, 1948. The winding up order was made by the High Court on August 3, 1948. The Act came into force on March 16, 1949.\n\nOn March 18, 1950. the Banking Companies (Amendment) Act, No. XX of 19~0\n\nSREB n.<\"K r. nurT ROY ( Wanchoo, J.) 721\n\nA came into force. On October 24. 1953 the Banking CompanieG (Amendment) Ordinance No. l V of 1953 was promulgated and lastly on December 30. 1953, the Banking Companies (Amendme,, i1t) Act. No. Lil of 1953 came into force.\n\nThe case of the appellant throughout has been that the period from May 11. 1948 (when the winding-up petition was made) to August B 26, 1957 twhen the execution application was made> had to be excluded in computing the period of limitation in view of sub-ss.\n\n(I) and (3) of s. 45-0 of the Act.\n\nThis contention was rejected by the High Court. It was held that s. 45-0 did not have retrospective effect in the sense of reviving rights which had become barred on the date it came into force and in this view an applica- C tion for execution of the entire amount was barred by time counting from the first default.\n\nIn the alternative it was held that instalments 2, 3 and 4 had become time barred before the coming into force of s. 45-0 on December 30, 1953 and as there was nothing in s. 45-0 which could revive claims which had become time barred no execution could be taken out in respect of them.\n\nThe High D Court further held that s. 45-0 could not apply to instalments 5, 6 and 7 as the cause of action to execute the decree for realisation of amounts due under those instalments arose subsequent to the date on which the petition for winding up was presented and the language of sub-s. (I) of s. 45-0 indicated that its provisions were to apply only to cases where the period for the presentation of E ;, n application had commenced to run prior to presentation of the winding-up application.\n\nThe High Court consequently held the application for execution to be barred by time.\n\nIt is well-settled that provisions of an enactment operate pr<>ipcctively. and that the right to sue or apply. which has become barred by lapse of time under the previous law, docs not revive F unless the nev.· law. expressly or by neceary implication. so provides.\n\nThe High Court held that there was nothing in s. 45-0 which could lead to the conclusion that its provisions had retrospective effect in the sense that the right to apply which had become time-barred on December 30. 1953 when the Amendment Act came into force, could revive. and consequently enable the appel- G !ant to apply for execution.\n\nThe principal question therefore is whether the language of s. 45-0 (I I read with s. 45-0 (3) is retrospective in operation and revives clai'lls that might ave become barred by limitation on the date when that section camo, into force i.e. December 30. 1953.\n\nNow so far as sub-s. (3) is concerned, that provision is certainly H retrospective in the sense that it applies the provisions of s. 45-0\n\n(I) to all banking companies which were being wound up on December 30. 1953, and thereafter, even though the application for winding up might have been made before December 30, 1953.\n\nThe main purpose of sub-s. (3) obviously is to make it clear that s. 45-0 (I) applies not only to those cases of bankine companies \"here application for winding up is made on or after December 30,\n\nI 'l51 hut also to those where the application for winding-up had\n\nSUPREME COURT REPORTS\n\n[1965] 3 S.C.R.\n\nbeen made before December 30, 1953 so long as the conditions for A. the application of s. 45-0 (l) are fulfilled.\n\nThe effect of this on the construction of sub-s. (l) will be considered presently.\n\nSection 45-0 (!) begins with a non-obstante clause and prescribes a special manner of computing the period of limitation in B cases governed thereby notwithstanding anything to the contrary in the Indian Limitation Act, 1908. The first condition that is necessary for the application of s. 45-0 (l) is that the suit or application should be by a banking company which is being wound up.\n\nThus s. 45·0 (!) will not apply to a banking company which is not being wound up or where the winding up is over. It thus applies c to a banking company beween the date of the winding up petition and the conclusion of the winding up proceedings after a winding up order has been made.\n\nWhere a suit or application is made by a banking company which is being wound up, the sub-section provides for exclusion of a certain period in computing the period of limitation prescribed in the Indian Limitation Act, 1908. The D exclusion is of the time commencing from the date of presentation of the petition for the winding up of a banking company to the date of suit or application. Thus where a banking company which is being wound up files a suit or makes an application on or after December 30, I 953, when s. 45-0 (!) came into force, the subsection directs that in such circumstances the period of limitation E shall be calculated by excluding the period commencing from the date of presentation of the petition for winding-up upto the date of the filing , if the suit or application. These words in my opinion are categorical and lay down what period shall be excluded when a suit or application is filed by a banking company. which is being wound up. I cannot agree with the High Court that in applying s. 45-0 (!) the court has to consider whether the relief claimed in F the suit or application by a banking company which is being wound up had become barred by limitation before December 30, 1953, when s. 45-0 came into. force.\n\nThe condition necessary for the application of s. 45-0 (l) is .that the suit or application should be filed by a banking company which is being wound up. Once it is clear that the suit or application is filed by a banking company 0 which is being wound up. the court must exclude the period of limitation from the date of presentation of the petition for winding upto the date of the filing of the suit or application. In what manner the exclusion can be made will be considered later. But these words leave no scope to the court to consider whether the suit or application, if filed before December 30, 1953, would be B barred by limitation or not.\n\nThey imperatively lay down that where an application or suit is filed by a banking company (which is being wound up) on or after December 30, 195~. when s. 4~-0 (!) came into force, the court must exclude the penod commencmg from the date of presentation of the petition for winding-up to the date of the suit or application in computing the perio.d of limitation.\n\nFurther by virture of sub-s. (3), sub-s. (I) applies not only\n\nSHEE TIAXK 'll, TJUTT UOY (Wanckoo, J.) 123\n\nA to those banking companies which were being wound up on applications presented on or after s. 45-0 (I) came into force, but also to those banking companies where the application for winding-up was made before December 30, 1953, provided the banking company was in the process of being wound up when the suit or application was filed.\n\nThe Act was passed for the benefit of depositors B and to give time to liquidators to familiarise themselves with the affairs of banks. That is why sub-s. (3) applied sub-s. (1) to all banking companies in liquidation even though the petition for winding-up might hve been made before the Act came into force.\n\nIt follows that the legislature intended to help depositors in all c banks in which liquidation proc.eedings were not over. Sub-section (3J would lose a large part of its efficacy if sub-s. (I) and sub-s. (3) read together are not interpreted to provide for retrospective operation of the provisions oi sub-s. (]). It will be giving full effect to the intention of the legislature and advancing the remedy intended tJ be given to depositors if sub-s. (]) and sub-s. (3) are read together to be retrospective in the manner indicated above.\n\nThe D language of sub-s. ( 1) on its plain reading necessarily implies that it was meant to be retrospective and that conclusion becomes inevitable when it is read with sub-s. (3) in the background of the remedy that the legislature intended to provide for the benefit of depositors.\n\nIt may be mentioned that the Banking Companies (Amendment) Act, No. XX of 1950, had also provided a special period of limitation by s. 45-F which was in these terms:-\n\n\"45-F.\n\nSpecial period of /imitation-Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908 (IX of 1908) or in any other law for the time being in force, in computing the period of limitation prescribed for any suit or application by a banking company, the period of one year immediately preceding the date of the order fou the winding up of the banking company shall be excluded.\",\n\nG That provision however only excluded one year immediately preceding the date of the order for the winding-up of the banking company. It seems thereafter the Banking Companies Liquidation Proceedings Committee 1952 was appointed and had recommended that \"provisions may be made by the legislature to the effect that limitation will stop running against a banking company H from the date of the winding-up order.\" This recommendation appears to be the basis of s. 45-0. Even so the words of s. 45-0 have to be interpreted as they stand whatever may have been the recommendation of the committee and on a olain construction of those words it is quite clear that sub-s. (I) oh.-45-0 provides in the case of a suit or a'pplication filed by a banking company which i,. being wound up that the period commenci, ng from the date of presentation of the petition for winding-tip of the banking company\n\n, ' ',\n\n........ / 1~4 l'.l'HEME l'Ol'llT REPORTS\n\n. [1965] :3 8.C.R. . -~ -, . , ·\\ . '~ _'\\~' ~\\ - . \\\n\n- .\n\n- .,_ . , to the uatc of suit or application shall be excluded •. -It will how- A 'evr be, s<en thaJ though the committee recommended that limitation should stop running against a banking company from the date of the winding-up order, the legislature made two changes when it proceeded to enacts. 45-0 (I) of the.Act. In the first place it did not provide for stopping 'of the running of limitation; it provided for exclusion of a certain period. It further provided for exclusion B of the period commencing from the presentation of a winding-up petition and, not from the winding-up order as recommended by the committee.\n\nNow exclusion has been provided in ss. 12 to 16 of the Limitation Act also. It is well settled that exclusion of time cannot.take place where time has not begun to run before the date from which the exclusion begins or the time limited has al C ready expired before such date. There can thus be no question of exclusion where the time has not begun to run and is nor continuing to run.\n\nTherefore, though the committee might have recommen::Ied that limitation should stop running from the date of the winding-up order, the legislature adopteJ the well-known device of exclusion in order to help banking companies in realising their D dues.\n\nI may add that in the earlier provision in Act XX of 1950 also. the Icgis!Jture had only provided for exclusion and the Same device was continued when s.· 45-0 m was introduced by t_he Amendment Act of 1953. It Is therefore clear that when the legislattlre enacted s. 45-0 (I) it made two changes already indicated in the recommendation of the committee and those changes are E ckar from the words i>f s. 45-0. Therefore, in orderthat s. 45-0\n\nti I should apply. it is necessary firstly that the banking company' Should be in the process of being wound up when the suit or application is being tiled. and secondly that the period of limitation for the .suit or application should have begun to iun before the date of the winding-up petition but should not have run out before F such date. Otherwise there can be no question of excluding the period beginning from the date of presentation of-the petition for\n\nwindim~-up of the banking company.\n\nFurther in view of sub-s. (31 of s. 45-0. Sub~. (I I thereof will apply to rill bal)king companies - which are in the process of being wound .up, even if the petition for winding-up was made before s. 45-0 (I) came into force and G even if the _winding-up order was made in such case whether before oro.after the date on which s. 45-0 m came into force i.e.\n\nDecember JO: 1953.\n\nIt is hawever urged that on this interpretation there may be i1:1m<? a11omalies. particularly in the cases of instalment decrees.\n\nH For exa111ple; it is said that where an instalment decree provides for six yearly instalments and does not provide for any default\n\nclas~ it may happen that some instalments may become due and may not he paicl before a winding-up petition while other instalmwtS may become due after the winding-up petition. In such a . situ:ition. the instalments which became due and were not paid\n\nP.:-ft1re i/1e windingup l'etition may be recoverable by execution\n\nSR>; E BANK v. DUT'l' ROY (Wanckoo, J.) 725\n\nunder s. 45-0 (I) for the period of limitation having begun and not having run out the exclusion provided by s. 45-0 (I) comes into play, while in the case of instalments, which became due after the presentation of the winding-up petition, the period of limitation not having begun exclusion could not come into play. It is said that it would be rather anomalous that earlier instalments should be recoverable but not later ones. It is submitted that if the subsection is interpreted to Jay down stoppage of the period of limitation after the presentation of the winding-up petition it will equally cover all instalments. It may be accepted that there would be this anomaly on the interpretation which I have accepted.\n\nBut the language is clear and provides for exclusion which can only take place after the period of limitation has begun and before it has run out. Therefore, whatever the anomaly where the language is clear and unabiguous it has to receive the only construction of which it is capable. As against this I may point out that if the language of s. 45-0 (I) is interpreted as stopping of limitation in all cases after the presentation of the winding-up petition it will result in equal anomalies.\n\nTake a case where a liquidator files a suit and gets a decree.\n\nWas it the fotention of the legislature by this provision to lay down that there would be no limitation in such a case for the execution of the decree?\n\nThat would be the result if the provision in s. 45-0 (I) is. interpreted as meaning stoppage of all limitation from the date of the presentation of winding-up petition.\n\nBut it could hardly be the intention of the legislature that the liquidator in such a case should not execute the decree which he gets within the period of limitation provided hy the Indian Limitation Act. The reason for exclusion provided in s. 45-0 (]) appears to be that after a winding-up order the liquidator takes charge and he will naturally take time to familiarise himself with the affairs of the company. So in all cases where time has begun to run before the winding-up petition and has not run out. the liquidator should get some breathing space and that is why the period from the date of the winding-up petition is excluded.\n\nBut where the time has not begun to run before the windingup petition, the liquidator would have ample time within whid1 to know the true state of affairs and in such a case the legislature did not intend that there should be no limitation as provided in the Indian Limitation Act.\n\nThat is why one finds the language of exclusion ins. 45-0 (]). The benefit of that provision is meant for cases where time has begun to run but has not run out before the presentation of the winding-up petition; it is not meant to provide that there would be no limitation in all cases where banking companies are in the process of liquidation. In any case if the legislature wanted to make such a sweeping provision I should have found appropriate language for that purpose in s. 45-0 (]).\n\nIn the absence of such appropriate language, the provisions of s. 45-0 (!) which appear to be clear and unambiguous. must receive their only proper construction already set out above.\n\n', ~,- '.--~)/.>-~\\ -~ '. \\.\n\n~'\n\n•· I, .._,. ' ' ; -.. .._ 726 -•\\': surR~;-cOURT IIEPORTS --.\n\n- [1965] 3 s.c.11.\n\n~ -. .\n\n- '' ~-\\ \\ \", ' . .\n\n- . -· ':-., . Let me now see. how thiS ronstruction applies to the facts of the - A _present case; The present case is governed by s. 45-0 (3) because the winding-up petition wits presented before s. 45-0 (1) came into _ force,_but by virtue of sub-s. (3) of s. 45-0, sul>-s. (1) would apply to the present case. The question then is whether limitation had begun to run before May 11, 1948 on which date the winding-up petition was presented and if so for which instalments or for the B -whole ofthe amount. If limitation had begun to run before May\n\nII, 1948, the period from May 11, 1948 upto the date of the application for execution on August 26, 1957, would have to be exclud- -e<.l. Now the evidence is tha_t there was default in payment of the instalmentdue on December 30;-1947. So the period of' limitation for that instalment certainly began to run from that date. Fur- C Lher paragraph 5 of the compromise to which I have already referred lays down that if payment was not made of any instalmentwithin after four months of the due date, the entire remaining decretal amount would also become due. These four months expired on April 30, _1948 and from May l; 1948-the appellant~ bank was entitled to execute the entire decretal amount that re- D mained due. Therefore the right to execute 'all the remaining - . instalments arose on May 1, 1948.\n\nThus limitation for all the instalments from second to seventh. began on May I, 1948 while the application for winding up was made on May 11, 1948. - In view of the interpretation of s. 45-0 (1) which I have accepted, the appellant would be entitled to exclusion of the entire period from E\n\nMay II, 1948 upto the .date of the execution application, and would thus be entitled to execute th~ decree for Rs. 12,000/- which iS the total of instalments 2 to 7 \\Vith interest. ·\n\nBut it is said that the appeJlant cnnot' execute the whole decree as it had waived the first default. -- I have already indicated F that the High Court had considered the matter both from the point of view of the whole amount and of each instalment. No question of waiver was raised by the respondent in his objection-petition.\n\nOn the other hand it seems to have been urged before the High Court that limitation started froin the first default i.e., May 1, 1948 and so there was no question of considering the matter of later o instalments at all. This was negatived by the High Court on the authority of Rang/al Aggarwal/a v. Shymlal Tamuli(') and that . is how the High Court came to consider the question of instalments in the alternative. ·\n\nBesides it appears that two. execution applications were made in this case one in February 1948 and the other in July 1950. When H the first execution application was made the default clause had not come into operation and the appellant only wanted execution of the second instalment of Rs. 2,000/- and prayed for attachment for Rs. 2,030/-, including interest. So there could be no waiver then. The second execution application was made not only after\n\n(') (1945-46)60 C.W.N. 735.\n\nSREE BANK v. DUTI' ROY (Dayal, J.) 727\n\nA the first default but after two other defaults also of the instalments of Rs. 4,000/- each due on December 30, 1948 and December 30,\n\n1949. The total of instalments then in default was only Rs. 10,000/-. Though a copy of the second execution application is not printed in the record, it is clear from the particulars in the present tabular form filed in 1957 that the relief sought at the B second execution was by attachment for Rs. 26,070/-. Clearly therefore the appellant was executing the whole decree after the default and there can be no question of waiver in the circumstances: (see also the appellant's statement of case paragraph 20).\n\nBachawat J. (as he then was) who delivered a short separate judgment has certainly said that the present appellant could waive and C had in fact waived the benefit of the default. But that with respect does not appear to be accurate. I am therefore of opinion that there was no waiver of the first default and so the appellant can take advantage of s. 45-0 and execute the decree for the entire amount.\n\nD I would therefore allow the appeal and set aside the order of the High Court, and order that execution should proceed according to law. The appellant will get its costs incurred before the appeal court and this court from the respondent. The remaining costs will abide the result.\n\nE Raghubar Dayal, J_ This appeal, by certificate under art. 133(l)(a) of the Constitution, requires the construction of s. 45-0 of the Banking Companies Act, 1949 (Act X of 1949), hereinafter called the Act.\n\nThis section was enacted in its present form by the Banking Companies (Amendment) Act, 1953 (Act LIT of 1953), hereinafter called the Amending Act.\n\nF The question arises on these facts.\n\nThe appeliant bank, through its Midnapore Branch, obtained a compromise decree against the respondent in 0.S. No. 25 of 1947 of the First Court of the Subordinate Judge, Midnapore, on May l, 1947. The decree was for an amount of Rs. 31,000/- of which Rs. 2,115/- were paid by the respondent that very day. The decree provided G that Rs. 6,885/- were to be paid by May 9, 1947 and the balance of Rs. 22,000 /- in seven instalments as under:\n\n1. Rs. 1,000/- on May 30, 1947.\n\n2. Rs. 2,000/- on December 30, 1947.\n\n3. Rs. 4,000 /- on December 30, 1948.\n\n4. Rs. 4,000 /- on December 30, 1949.\n\n5. Rs. 4,000/- on December 30, 1950.\n\n6. Rs. 4,000/- on December 30, 1951.\n\n7. Rs. 3,000/- on December 30, 1952.\n\nThe judgment-debtor respondent did not pay the second and subsequent instalments. Paragraph 5 of the compromise which formed part of the decree provided that if the plaintiff decree-holder\n\nSUPREME COURT REPORTS [1965] 3 s.u.R.\n\ndid not get the amount due to it on account of the insta!meals within 4 months from the time of default, it was to deem, on the expiry of the said 4 months, all the other instalments to be in default and would be entitled to realise the entire amount of the decree then due through execution proceedings.\n\nThe appellant attempted, by applicatioqs presented in 1948 and in 1950, to execute the decree. The details relating to these applications and the proceedings thereon need not be set out here as they do not affect the question for consideration. Suffice it to say that nothing was realised in these proceedings and that the proceedings started on the application presented in 1950 were subsequently transferred to the High Court in view of the relevant provisions of the Act.\n\nOn August 24, 1957, the appellant presented an application in a Tabular form for execution of the decree, on the ordinary original civil side of the Calcutta High Court.\n\nIt was stated in column lO meant for noting the mode in which the assistance of the Court was required that the defendant judgment debtor had failed to pay any portion of the decretal amount or interest, that the decree-holder Bank was wound up by an order of the Court dated August 3, 1948 on a petition for winding-up presented to it on May 11, 1948 and that the Court Liquidator, High Court, and the Official Liquidator of the decree-holder Bank, be appointed receiver without security and without remuneration, to collect and realise the amount payable to the defendant firm and/or Sukumar Dutta, one of its partners, by the Executive Engineer, Works & Builjing Department, Midnapur Division, upto a maximum limit of Rs. 35.000 /-.\n\nA further prayer was made that an interim receiver be appointed before issue of any notice of the application to the judgment debtor. On this application an interim order for the appointment of a receiver was made on August 26, 1957. This order was confirmed on June 2, 1958. The judgment-debtor respondent appealed against this order contending that the execution of th_e decree wa_s barred by limitation. The High Court agreed with the contention and dismissed the application and also set aside the order for appointment of receiver. It is against this order that this appeal has been presented under a certificate from the High Court.\n\nThe contention for !he judgment-debtor is that the execution to realise intsalments number 2 to 7 had .expired long before August 24. 1957 when the execution application in tabular form had been presented as the date for the payment of the last instalment was December 30, 1952. The period of 4 months after the expiry of December 30. 1952 within which the decree-holder could execute he decree expired on May I. 1953. The execution application was presented after the expiry of 3 years of this date This\n\n\"' SREE RANK t•. DUT1' .H.OY (D .. yal, J.) 729\n\n' A objection on the ground_ of limitation was met by the decree-holdi:J Bank on the basis of the provisions of s. 45-0 of the Act whh; h reads :\n\n- \"]f\"-- -\n\n\"(]) Notwithstanding anything to the contrary contained in the Indian Limitation Act. 1908 or in any other law\n\n1.. for the time being in force. in computing the period of limitation prescribed for a suit or application by a\n\nbankin~ company which is being wcund up, the period commencing frpm the date of presentation of the pelition for the\" winding up of the banking company shall be excluded. / ._\n\n(2) Notwithstanding anything to the contrary contained in the Indian Limitation Act. 1908 or section 543 of the .Companies Act. 1956 or in any other law for the time\n\nbeing in force, there shall be no period of limitation for the recovery o\\ arrears of calls from any director of a. banking company which is being wound up or for the enforcement by the banking company against any 'of its'. directors of any .claim based on a contract, express or implied; and in respect of all other claims by the banking company against its directors, the period of limitation shall be twelve years from tlie date of the accrual of such claims or five years from the date of the tirst appointment of the liquidator. whichever is\n\nlong'r. • (3} The prqvisions of this section, in so far as they relateto banking co112pan.ies being wcund up, shall also apply to a bankingcompany in respect of wbicli a petition for the windingtip has been presented befor~ the commencement of the Banking Companies (Amendment) Act. 19-53.\" To appreiate the contentior(based on t!Jis section it is necessry to mention a few more facts.\n\nOn May 11, 1948. a petition for winding-up by the, Bank was 'presented. The winding-up order G was made by the I:i.igh Court on August 3, 1948. The Act came\n\ninto force on March 16, 1949. On March 18. 1950, the Banking Companies <Amendment) Act. 1950 (Act XX of 1950) came into\n\nforce.\n\nOn Octobr. 24, 1953, the Banking Companies (Amendv menO Ordinance JV of 1953 was promulgated and lastly, on December_ 30, ·-1953, the Amending Act came into f.prce: The H contention for the appellant before the High Court and in this\n\nCourt is that the period between May 11. 1948 when the winding- 1.!P applicationwas filed and August 1957 when the execution. application was presented, is to be excluded from the computation of the period of limitation, in view of sub-ss. (]) and (3) of s. 45-0 of the Act.\n\nThis contention was rejected b¥ the High Court on tlw ground that instalments Nos. 2. 3 and 4 had become tirnebnrred before the coming into foree of s. 45-0 on December 30,\n\n'130\n\nSUPRIWE COURT REPORTS [1965] 3 s.c.R.\n\n1953 and that there was nothing in s. 45-0 to revive the claims A which could not be enforced due to the lapse of time under the provisions of the Limitation Act. Section 45-0 was not held to apply to the case .of instalments 5, 6 and 7 as the cause of action to execute the decre for the realisation of the amounts due under these instalments arose subsequent to the date on which the peti- B tion for winding-up was presented and the language of sub-s. (l) of s. 45-0 indicated that its provisions were to apply only in cases where the period for the presentation of an application had commenced to run prior to the presentation of the winding-up application.\n\nThe High Court, consequently, held the application for execution to be barred by time and dismissed it. ·\n\nThe contentions urged before the High Court by the respective parties have been repeated before us. It is thus that the question of the construction of s. 45-0 of the Act has arisen.\n\nIt is no doubt true that the;: provisions of an enactment operate prospectively and that the consensus of opinion is that unless they expressly or by necessary implication provide otherwise, the right to D sue or apply. which had become barred by lapse of time under a previous enactment is not revived by the succeeding enactment.\n\nThe High Court was of opinion that there is nothing in s. 45-0 which could lead to the conclusion that its provisions had retrospective effect in the sense that the right to apply which had become E time-barred on December 30, 1953, when the Amending Act came into force, could revive and consequently enable the Banking Company to apply for that relief. Lahiri, C. J. said:\n\n\"On this point it is significant to note that sub-section 3 of section 45-0 makes the provisions of the section applicable only to a banking company in respect of which F a petition for winding-up has been presented before the commencement of the Banking Companies (Amendment) Act of 1953; but does not make the provisions of the section applicable to debts due to the banking company which had become barred by lapse of time before the date of such commencement. Then again G sub-section 1 of section 45-0 provides that the period commencing from the date of the presentation of the petition for winding-up of the banking company shall be excluded and does not say that this period shall always be deemed to have been excluded. The use of the future tense in sub-section (I) indicates that the H Legislature did not intend its provisions to operate on decrees which had before the date of its commencement become unenforceable by lapse of time. There is therefore neither any express word nor any necessary implication in section 45-0 to indicate that its provisions were intended by the Legislature to have. retrospective effect.\" .\n\nSREE BANK v. DUTT ROY (Dr, yd, J.) 731\n\nBachawat J., practically took the same view and said that sub-s. (!) of s. 45-0 did not provide that the period from the date of presentation of the petition for winding-up of the banking company would be always deemed to have been excluded and that though sub-s. (3) of s. 45-0 specially provided for the retrospective application of the section to a banking company the Legislature deliberately had not provided that sub-s. (!) of s. 45-0 would have a larger retrospective operation.\n\nI am of opinion that sub-s. (!)-and specially when read with sub-s. (3) of s. 45-0 o; icdte; retrospectively and that the appellant's appl'cation for execution presented to the High Court in 1957 for e;,, ecuting the decree for the rcaiisation of the instal ments in the payment of which the respondent judgment-debtor made default was maintainable and not barred by time.\n\nIt is not necessary for the retrospective operation of the provision of an Act that it must be stated that its provisions would be deemed to have always existed. That is one mode and may be an effective mode of providing that the provisions would have retrospective effect. Retrospective effect of an enactment can also\n\nbe gathered from its language and the object and intent of the legislature in enacting it.\n\nIn The Queen v. Vine(') an enactment which was penal in nature was construed to have retrospective effect despite the rule that when an enactment is penal in nature it is not to be construed retrospectively if the language is capable of having a prospective effect given to it and is not retrospective, as the object of the enactment was not to punish offenders but to protect the public against public-houses in which spirits were retailed being kept by persons of doubtful character.\n\nGovernment had been making laws for exercising control over the Banks since 1936 upto which time the Indian Companies Act, 1913, governed the working of Banking Companies as well.\n\nIn that year, Part !OA was added to the Indian Companies Act.\n\nAmendments were made to this Part subsequently and, ultimately, it was repealed by the Banking Companies Act, 1949.\n\nIn this Act too, Part 3A was added by the Amending Act of 1950. The Amending Act of 1953 substituted the present Part 3A in the Act for the Part originally introduced in 1950.\n\nH Section 45-F which was inserted in the Act by the Amending Act of 1950 may be quoted, as some reference to it would be made subsequently. It reads:\n\n\"45F.\n\nSpecial period of /imitation-Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908 (IX of 1908), or in any other law for\n\n(') L.R. 10 Q.B. 19u, L/P; l•)5SC!r-8\n\nRUPREME COURT REPORTS\n\n[1965) 3 S.O.R ,\n\ntht; time being in force, in computing the period of limi- A talion prescribed for any suit or application by a banking company. the period of one year immediately preceding the date of the order for the winding-up of the banking compny shall be excluded.\"\n\nA scrutiny of the provisions of the Act and especially of Part 3A B clearly indicates that the object of the Legislature in enacting these measures was to protect the interests of the depositors of the banking company and to expedite winding-up proceedings. We need not refer to the provisions which would indicatesuch a purpose of the Legislature. The expeditious disposal of the winding-up proceedings is clear by the provisions by s. 40 C which provides that notwithstanding anything to the contrary contained in s. 466 of the Companies Act, 1956, the High Court shall not make any order staying the proceedings in relation to the winding-up of a banking company, unless the High Court is satisfied that an arrangement has been made whereby the company can pay its depositors in full as their claims accrue.\n\nIn Joseph Kuruvila Vellukunnel v. The Reserve Bank of India('), it was observed:\n\n\"An examination of the Banking Companies Act reveals two things prominently. The first is that the whole E: intent and purpose of that Act is to secure the interests of the depositors ... \"\n\nIt can be presumed that companies which are wound-up had been usually mis-managed. Mismanagement can also account for the failure of the banking company to sue the debtors for the F recovery of the amounts due to the banking company within liinitation. This injures the interes!S of the depositors and others concerned in the proper running of the banking company. It is again within the range of possibility, nay probability, that the liquidator appointed for the banking company when it is ordered to be wound up would require some substantial tiine to acquaint hiinself with G the complete position .about the affairs of the company and that during such period liinitation for instituting suits or making applications in the interests of the banking company may expire. This aspect is fully exJ?laine.d !-n paragraph 57. of the ReJ?ort of the Banking Compames Liqmdat10n Proceedmgs Committee, 1952, which is set out below: K\n\n\"The Committee has also considered the question as to whether the law of limitation should be further relaxed in favour of the Liquidator. The Liquidator has already been granted a year's grace by Section 45F of the\n\n(') [1962] Supp. a S.C.R. 6S2, 6!115.\n\nSREE BANK t'. DUTT ROY (Dayal, J.) 733\n\nBanking Companies Act.\n\nMost of the witnesses examined by us were of opinion that the Liquidator's year was inadequate. They urged that in many cases it takes the Liquidator a long time to ascertain who the debtors are and the amounts due from them, particularly where the records are distributed in different parts of India or are incomplete. Under the procedure envisaged above the debtor is liable to be arraigned in the winding-up proceedings, and is entitled to claim relief in such proceedings.\n\nAs regards creditors, it is settled law that 'the Limitation Act ceases to run as from the winding-up order so that a creditor whose claim is not then barred will not be barred by subsequent delay'.\n\nWe see no reason why limitation should not cease to run against the banking company from the date of the winding-up order. If the procedure envisaged above is adopted, the necessity for the Liquidator to file suits against the debtors of the bank will rarely arise. Further, the Liquidator shall have no scope for unconscionable delay in proceeding against the debtor. He is required to bring the debtor before the Court within 6 months from the date of the winding-up order unless further time is granted by the Court. We therefore recommend that provision may be made by the Legislature to the effect that limitation will stop running against a banking company from the date of the winding-up order.\"\n\nIt appears that the Legislature mostly accepted this view of the Committee and enacted s. 45-0 providing mainly that there would F be no running of limitation against the banking company subsequent to the date of the petition for winding-up with the result that limitation would run in the ordinary course upto the winding-up petition. There is much logic behind it.\n\nNon-action upto the date of the petition for winding--up was on account of the mismanagement of the banking company. The debtor of the banking G company gets advantage of the negligence of the company to sue him or apply against him within the period of limitation. Since the presentation of the petition for winding-up of the company, the Court gets control over the affairs of the company and supervises the acts of the liquidator, in accordance with the provisions of the Act which, to secure necessary action in all matters within a reason- H able time, provide certain periods for certain actions to be taken by the liquidator of the Court. It is to be presumed therefore that any delay in the taking up of any legal action by the Banking Company would be for good reasons. The Legislature seems to have been of the opinion that the interests of the banking companies, especially of its depositors, should not suffer on account of the delay which could not be avoided even when the Court was in charge of the affairs of the banking company. Viewed in this\n\nSUPREME COURT REPORTS [1965] 3 s.c.R.\n\nperspective, _it should appear that the relevant date for considering A whet.her. acon can be taken by the banking company by suit or apphcalion 1s the date of presentation of the winding-up petition.\n\nIf the ~nking co1.11pny had a right to sue or to apply on the date the pett10n for wmdmg-up was presented, that right should not be lost tq 1t.\n\n. I may now consider how, far the legislature succeeded in B makmg s. 45-0 bf the Act, specially its sub-sections (!) and (3) carry out !his object and intention. For the application of sub-s. (!), t~.o thmgs ar~ ecssry: (i) that a cuml1any is being wound-up and (11). that a smt 1s mstttuted or an applicution is nia, le hy such a bai; ikmg company. If these two things exist, the p~1 ; od com- 0 mei; icmg from the date of presentation of the petition for windingup is to be excluded in computing the limitation prescribed for such a suit or application.\n\nThe first condition would be satisfied by all companies with respect to which windipg-up orders had been made either before the commencement of the Amending Act of 1953 or thereafter.\n\nD There is nothing in the language of the sub-section to limit the expression 'companies being wound up' to those companies with respect to which winding-up orders are made subsequent to December 30, 1953. There seems to be Db geod reason why such a limitation on this expression be imposed. The provision is not for the benefit of such companies only but is for the benefit of all the companies E which would be in the process of winding-up during the enforcement of the Act The process might have commenced before or after the enforcement of the Act. Naturally, petitions for the winding-up of companies with respect to which winding-up orders had been made prior to December 30, 1953, .must have been made before that date. The language of sub-s. (!) plainly applies to F compan!es which were being wound up 'When the Act came into force.\n\nI may refer to certain cases in which expressions of general import have been so construed.\n\nIn Weldon v. Winslow(') the provision of law for construction G was:\n\n\"a married woman shall be capable,.,., .of suing and being sued either in contract or in tort, or otherwise, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal pro- B ceeding brought by or taken against her, and any damages or costs recovered by her in any such action or proceeding shall be her separate property, .. ,,,\"\n\nBrett M, R. said at p, 787 that the section dealt with an action for tort nd that after the Act came into operation a married woman ----···----\n\n\\') J .n. 13 Q.B.D. 784,\n\nBREE BANK V. DUIT ROY (Day,11, J.) 735\n\nmight bring such an action in her own name and the damages and costs recovered shall be her separate property. He continued :\n\n\"It is said that this is a retrospective construction, because the cause of action arose before the statute came mto operation; but the section does not say anything about cause of action; it deals with bringing the action, and there is nothing in it to limit its provisions to cause11 of action arising after the statute came into operation.\n\nI think, therefore, that an action brought after the statute came into operation is within the plain words of s. I, and it is necessary to distort the grammatical meaning of the words to arrive at the interpretation proposed by the defendant's counsel.\" ·\n\nThese remarks can apply aptly to the construction of sub-s. (1) of s. 45-0. That sub-section deals with the computation of limitation with respect to suits and applications filed after the coming into force of the Amending Act of 1953 and do not apply to suits and applications which had been filed earlier. The provisions say nothing about the time when the petition for winding-up be pressented. There is nothing to limit the provisions to petitions for winding-up which had been presented after the Amending Act came into force.\n\nIn Bank of Athens Societe Anonyme v. Royal Exchange Assurance(') an application under sub-s. (!) of s. 3 of the Law Reform (Miscellaneous Provisions) Act, 1934, empowering the Court to award interest on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment, was construed not to be restricted to proceedings taken after the Act had come into force.\n\nIt was said by Branson J ., at p. 773 : \"I think that on the true construction of that section the court in any proceeding, whenever commenced, whe\n\nther before or after the Act, has the discretion which the section gives it. The words as they stand are applicable in that sense.\"\n\nThe construction I put on the provisions of sub-s. (!) gets support from the provisions of sub-s. (3). It is to be noticed that sub-s. (3) \"does not provide that the provisions of sub-s. (!) would apply to banking compnies with respect to which winding-up B orders had been made pnor to the commencement of the Amending Act of 1953. If it had said so, the question we are considering n?':\" would not have arisen as that. woul~ expressly apply the provmons of sub-s. (1) to the companies which were being wound-up on Dec7mber. 30, 1953.\n\nSub-s. (3) provides that the provisions of the section, viz., of sub-ss. (1) and (2), shall also apply in so far as they relate to banking companies being wound-up to a banking\n\n(1) L.R. (1938] I K.B. 771.\n\n•• 736\n\nSUPREME\n\nCOURT\n\nRBPORTS\n\n(1965) 3 S.C.R.\n\ncompany in respect of which a 'petition for winding-up has been A presepted before the.commencement of the Amending Act. Sub-s.\n\n(3) contemplates cases in which the petitions for winding-up had been made prior to the enforcement of the Act but no orders for the winding-up of the company had been made. If the provisions of sub-s. (I) can apply to the companies with respect to which proceedings on a winding-up petition were pending on December B 30, 1953, it would be very anomalous if they would not apply. to the companies with respect to which winding-up orders had been made prior to December 30, 1953. This leads to the inference that sub-s. (!) by its own language applies to banking companies which were being wound-up on December 30, 1953. -\n\nFurther, this would be apparent if we combine th~ provisions of sub-ss. (!) and (3) together, which could be read thus: c\n\n\"Notwithstanding ... in force, in computing the period of limitation prescri.bed for a suit or application by a banking company which is being wound up, or in res- D pect of which a petition for the winding-up has been presented before the commencement of the Banking Companies (Amendment) Act, 1953, the period commencing from the date of the presentation of the petition for winding-up of the banking company shall be excluded.\"\n\nf.o read, it becomes clear that the period of exclusion would be available in connection with suits or applications by a banking company which is being wound-up or with respect to which a petition for winding-up has been made prior to December 30, 1953.\n\nI am further of opinion that if a restricted construction be F placed on the provisions of sub-s. (!)'of s. 45-0, the effect of sub-s.\n\n(3) would be very much reduced. In fact. it will probably have no utility. If the cause of action for a suit or application had lapsed by efflux of time prior to or on December 30, 1953, the advantage of sub-s. (I) will not be available to the banking company on account of the provisions of sub-s. (3).\n\nSub-s. (3) itself G does not give any particular right to the banking company. It ohly provides that whatever advantage a banking company can derive from the provisions of sub-s. (!) when it is being wound-up, would be available to it even if it be not being wound-up, if a petition for its winding-up had been presented prior to the enforcement of the Amending Act of 1953. The only case in which the banking H company can take advantage of sub-s. (3) then would be when the cause of action for the suit or application has not lapsed by December 30, 1953 and the proceedings on a winding-up application were pending on that date. Such cases would be covered by the language of sub-s. (I) if the cause of action was alive on December 30, 1953. The order for the winding-up of the company would be made subsequent to the date and therefore suits or\n\n• SRE~ HANK I', DUTT ltoY (D11y11/, J.) 737\n\napplications covered by sub-s. ([) would get the advantage of the provisions of that Act.\n\nThe expression 'the period commencing from the date of the presentation of the petition for the winding-up of the banking company shall be excluded' fixes the point of time from which the excluded period will commence, and cannot be limited to the dates of such petitions which be presented after December 30, 1953.\n\nIt is true, as stated in Jwala Prasad v. Official Liquidator('), that the only purpose which sub-s. (3) of s. 45-0 serves is to make it clear that sub-s. (I) will apply even when the petition for the winding-up of a company is presented prior to the commencement (l of the Amending Act of 1953. I do not think that a separate subsection was enacted merely for the clarification of the point that the provisions of sub-s. (I) of s. 45-0 would take in such cases firstly because such cases would be covered by the language of sub-s. (I) and, if not, it could have been stated in sub-s. (I) itself that those provisions would apply where the petition for winding- D up was presented before or after the commencement of the Act by simply adding the expression 'presented before or after the commencement of the Act' between the words 'banking company' and 'shall be excluded'.\n\nI am therefore of the view that the effect of sub-s. ([) of s. 45-0 is that if suits or applications made by a banking company which is being wound-up or for whose winding-up a petition has been presented prior to December 30, 1953, the period of limitation is arrested on the date of the presentation of the petition for winding-up of the company and that it is not material whether such a date is earlier than December 30, 1953, or not and that therefore suits can be instituted and applications made even in regard to matters with respect to which such action could be taken on the date of presentation of the application for winding-up of the co-npany but could not be taken on the date the Amending Act of I 953 came into force.\n\nG I may now refer to the case law on the point which is so far quite meagre.\n\nIn Punjab Commerce Bank v. Brij Lal(' ) the suit was filed on March 31, 1952 under s .• 45-B of the Banking Companies Act, 1949, as amended by Act XX of 1950.\n\nThe cause of action arose on October 9, 1946.\n\nThe application for winding-up was made on February 17, 1948 and the winding-up order was made on October 11, 1952.\n\nThe suit was dismissed on December 2. 1952 as barred by time and an appeal against the dismissal was pending in the High Court on December 30. 1953 when the Amending Act of I 953 came into force.\n\nThe suit was certainly time-barred as the law\n\n('I A.I.R. 1902 All. 486.\n\ne) i\\.I.R. 1955 Pnnj, 45.\n\n738 • SUPRElrlE 00Ult1' ngpon:rs\n\n(1965) 3 S.l'.R.\n\nstood on the date of its ins\\itution. It was urged for the' appellant A that the Amending Act was retrospective in effect, that it applied to all suits which were pending on the date it came into force and 11s the appeal was a re-hearing of the case the suit would still be within time as the Amending Act would be applicable to the case on the date of its decision. This contention was repelled. Bishan Narain J ., said at p. 46: B\n\n\"[have carefully read this section and in my opinion section 45-0 is not retrospective in effect expresdy or by necessary im.plication and further there is nothing in this section so retrospective in effect as to revive a claim which before that date had become unenforceable by c\n\nlapse of time.\"\n\nThese observations apparently go against the appellant. They were, however, made in connection with the provisions of s, 45-0 applying to a suit pending on the date the Amending Act came into forco and their import is limited by the other observations D made when dealing with the provisions of s. 45-0. These observations, on pp. 46 and 47, are:\n\n\"It will be noticed that neither sub-s. (!) nor sub-s. (3) makes any mention of a pending suit at the time when the Amending Act of 1953 came into force although the legislature does provide under s. 45-C provisions for E transferring such a suit to the High Court.\n\nIn the absence of any specific mention of pending suits it is not possible to hold that the section would apply to them. Sub-section (3) is to a certain extent retrospective in effect because it makes sub-s. (!) applicable to those cases in which a petition for winding-up had been F presented before the Amending Act, 1953 came into force, but this retrospective effect cannot be extended to claims or suits pending in the High Covrt at the time that the Amending Act came into force:\"\n\n\"Applying this test I hold that s. 45-0 does not apply to G pending suits.\"\n\nSub-s. (3) of s. 45-0 has been considered to be retrospective to a certain extent. It was not necessary for the purpose of this case\"to consider in what cases and in what manner its retrospective provisions could be used.\n\nIn Suburban Bank Ltd .. v. Nistaran(') the plaintiff had claimed inter a/ia several sums advanced as loans to the defendant on June 27. 1945. Winding-up .application was made on May 12, 1948; the winding-up order was passed on June 30, 1948 and the suit was instituted on December 3. 1949 when s. 45-F of the\n\n(') A.I.R. 1955 Cal. 172.\n\n. /~ ·:BEE BANK v: DU~ RO; (Dey;/, j.) 739'\n\n., ', ; -·- : ~- ' . ·. -·- , . ' . - •'°\" A Banking Companies Act, introduced by the Amending Act 23 •\n\nof 1949, provided a special period ofJimitation::-The suit was: clearly time-barred in view of art. 59 of the. Limitation Act and s. 45-F of the Banking Companies Act. ·. Consequently. the question arose as to'whether s. 45-0, in view of the alteration of the\n\nlaw during the pendency of the suit, could apply to that suit. It was hel:1 that the question whether the proceeding is barred by the law of limitation must depend on the law in force whe12 the . proceeding was instituted and that sub-s. (!) of s. 45-0 -does not refer to pending proceedings either in express words or by necessary implication. When considering the effect of s. 45-0, it was said at p. 175:\n\n\"The general words 'a suit or application' can b~ given fuff\n\neffect by limiting them to suits and applications commenced after the sub-section came into force.\" No occasion arose to consider the effect of the provisions of sub-s.\n\n(31 of s. 45-0 in proceedings instituted after it came into force.\n\nIn MI s. Kesarichand v. s. B. Corpo; mion('l the period of limitation was to commence from December 29, 1950. Article 85 of the Limitation Act was held applicable to the case .. The application for winding-up of thecompany was made on February 26 • . l 953 and winding-up order was made on May 26, 1953. An application under s. 45-D of the Act was presented on June 28, l 954, more than three years. from the commencement of the period of limitation but within 6 months from the commencement of the\n\n/\\mending Act of. 1953. December 29, 1950, being the starting point for limitation, the period of limitation for the application expired before December 30, 1953, a day before the: Amending Act came into force and the question did arise whether the applicant culd be allowed to get the advantage of s.· 45-0. It was . contended that even if the benefit of s. 45-0 was given to the plaintiff b1nk, the application would be barred by limitation as the period ·.which was to be excluded in view of sub-s. (!) of s. 45-0 commenced from the date of the presentation of the petition for winding-up and ended on the date on which the winding-up order was made. This contention was negatived. It was held that s. 45-0 was retrospective in ope.ration.\n\nIn Jwa/a Prasad's Case(') the period of limitation for taking _proceedings under s. 235 of the Indian Companies Act, 1913.'com- H menced on November I, 1947. The period prescribed was 3 years fro:n the date\" of the first appointment of the liquidator or \"from the arising of the cause of action. The application for winding-up • was made o;] February 17. 195Q and the liquidator was appointed the same day. The liquidator applied for action under s. 235 on ·\n\n( 1) A.I.R. 1950 Assam 10:!.\n\nI') A.I.R. 1962 All. 486. . '\n\n\nSeptember 30, 1953, before the enforcement of the Amending Act A of 1953. It was not acase therefore where an application was made by the banking company subsequent to the enactment of s. 45-0. The question about the application being made within time was to be decided on the law of limitation as it stood on September 30, 195~. The law of limitation as laid down in s. 235 was to apply taking into consideration the provisions of s. 45-F B of the Act as it stood on September 30, 1953. The Court held that the application could not be held to be in time even if the advantage of the provisions of s. 45-F be given. It however considered the effect of s. 45-0 and said at p. 494 that there was nothing in the section to show that it was intended to be retrospective in effect in the sense that it revived remedies which had already come 0 to an end and reliance was placed on the earlier Calcutta, Punjab and Assam cases rererred to above.\n\nI therefore hold that the provisions of sub-s. (!) of s. 45-0 are retrospective in effect and are applicable to suits or applications by a banking company in respect of causes of action for the suit D or an application about which suits could be instituted or applications made on the date of the presentation of the winding-up petitions made before the commencement of the Amending Act of 1953, even though tke specified period of limitation for such action had expired before the enforcement of the Amending Act.\n\nIn the present case, judgment-debtor respondent defaulted in payment of the second instalment due on December 30, 1947. On May I, 1948, the appellant's right to execute the decree for the entire amount due under the decree arose. The petition for the winding-up\n\nof the company was made on May 11, 1948. The appellant's application for execution presented in 1957 for the entire decretal F amount due to it would not be time-barred if it had exercised its option to have realised the entire decretal amount in default of payment of the second instalment. The right to exercise such an option arose on May 1, 1948, earlier than the presentation of the winding-up application, but the appellant-decree holder, however, appeared to have waived its such right and to have sought execu- G tion for the realisation .of the various instalments. Bachawat J., said in his judgment:\n\n\"The respondent could waive and in fact has waived the benefit of that option and became entitled to enforce payment of each instalment as and when it fell due.\"\n\nIt was therefore that an objection was raised to the execution of the decree for the instalments falling due after the presentation of the winding-up application on May 11, 1948 on the ground that the provisions of sub-s. (]) of s. 45-0 applied only t() such suits or applications the causes of action for which accrued before the relevant date, i.e., the date of the presentation of the application for wmding-up. The contention is that the provision about the\n\nSREE DANK V. DUTT ROY (Dayal, J.) 741\n\nexclusion of time in the period of limitation predicate that the period of limitation had commenced to run prior to the beginning of the period to be excluded and that therefore the provisions of sub-s. (!) of s. 45-0 would apply only to suits or applications with respect to such causes of action which had accrued prior to the date of the winding up petition. This contention for the respondent has been accepted by the High Court.\n\nIn this the High Court was in error.\n\nIt is clear that the object of the Legislature was that the running of time during the period when the winding-up proceedings were pending in Court and when the Court supervised those proceedings be not included in the period of limitation prescribed under the ordinary law of limitation.\n\nThe banking company is entitled for the exclusion of the period from the date on which the application for winding-up had been presented up to the date of institution of the suit or filing of an application, from the period of limitation prescribed for any suit or application and it would be illogical to hold tliat it is not entitled to ask that a shorter period, as the case would be when cause of action arose subsequently to the presentation of the application for winding-up, be also excluded fro'TI the period of limitation prescribed for any suit or application. It appears to me that the object and intention of the Legislature in enaciing sub-s. (]) of s. 45-0 was that the period subsequent to the presentation of the petition for winding-up be not taken into consideration in computing the period of limitation.\n\nThe entire period will be excluded from consideration if the limitation had begun to run prior to the presentation of the petition for winding-up and the relevant lesser period i.e., the period commencing from the accrual of the cause of action subsequent to the date of presentation of the petition for winding-up of the company would be excluded from the period of limitation which also commences from the accrual of the cause of action.\n\nIt may be said that this means that the entire period of limitation is abrogated with respect to causes of action arising subsequent G to the date of presentation of the petition for winding-up. Such\n\nmay be the result, but that does not mean construing the provisions of sub-s. (!) of s. 45-0 in the context of the circumstances and reasons for the enactment of those provisions. It would be anomalous to hold that action can be taken with the help of the provisions of sub-s. (!) of s. 45-0 with respect to causes of action H which had arisen much earlier than the date of the presentation of the petition for winding-up but action cannot be taken with respect to causes of action arising subsequent to such a date if it had not been taken within the prescribed period of li.mitation. There is nothing in the language of the sub-section, in my opinion, to accept the contention for the respondent whose acceptance would lead to results which would not have been contemplated by the Legis- Uature.\n\nBUPREKE\n\nCOURT\n\nREPORTS [1965] 3 s.c.u.\n\nI am therefore of opinion that the appellant's application for A execution presented in August 1957 was presented within limitation.\n\nI would accordingly allow the appeal with costs, set aside the order of the Division Bench of the High Court on Letters Patent Appeal and restore that of the Single Judge.\n\nORDER\n\nThis appeal is allowed. The appellant will get its costs in thi5 Court and in the High Court.", "total_entities": 278, "entities": [{"text": "SREE BANK LID", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "SREE BANK LID", "offset_not_found": false}}, {"text": "SARKAR DUTI ROY AND CO", "label": "RESPONDENT", "start_char": 16, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "SARKAR DUTI ROY AND CO", "offset_not_found": false}}, {"text": "April 9, 1965", "label": "DATE", "start_char": 41, "end_char": 54, "source": "ner", "metadata": {"in_sentence": "April 9, 1965\n\n(A. K. SARKAR, K. N. WANCHOO AND RAGHUBAR DAYAL, JJ.]"}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 71, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL, JJ.", "label": "JUDGE", "start_char": 89, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL, JJ.", "offset_not_found": false}}, {"text": "Banking Companies Act", "label": "STATUTE", "start_char": 111, "end_char": 132, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 45", "label": "PROVISION", "start_char": 147, "end_char": 152, "source": "regex", "metadata": {"linked_statute_text": "Banking Companies Act", "statute": "Banking Companies Act"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 265, "end_char": 278, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 45", "label": "PROVISION", "start_char": 361, "end_char": 366, "source": "regex", "metadata": {"linked_statute_text": "Banking Companies Act", "statute": "Banking Companies Act"}}, {"text": "Section 45", "label": "PROVISION", "start_char": 519, "end_char": 529, "source": "regex", "metadata": {"linked_statute_text": "Banking Companies Act", "statute": "Banking Companies Act"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 770, "end_char": 775, "source": "regex", "metadata": {"linked_statute_text": "Banking Companies Act", "statute": "Banking Companies Act"}}, {"text": "30th December 1953", "label": "DATE", "start_char": 958, "end_char": 976, "source": "ner", "metadata": {"in_sentence": "Section 45-0 (1) provided that in computing the period of limitation prescribed for an application by a banking company which is being wound up, the period commencing from the date of the presentation of the winding up petition shall be excluded; and s. 45-0 (3) provided that sub-s. (1) shall also apply to a banking company in respect of which the winding-up petition was presented before the commencement of the Amendment Act, that is, 30th December 1953."}}, {"text": "1st May 1947", "label": "DATE", "start_char": 982, "end_char": 994, "source": "ner", "metadata": {"in_sentence": "On 1st May 1947, a decree for a sum of money had been passed in favour of the appellant-Bank, against the res1xmdents."}}, {"text": "30th December ftom 1947 to 1952", "label": "DATE", "start_char": 1216, "end_char": 1247, "source": "ner", "metadata": {"in_sentence": "The decree provided that the amount which was due on 30th May shou.ld be paid in 6 annual instalments each payatle on 30th December ftom 1947 to 1952."}}, {"text": "May 11, 1948", "label": "DATE", "start_char": 1484, "end_char": 1496, "source": "ner", "metadata": {"in_sentence": "On May 11, 1948 a petition for winding up of the appellant was presented and it was ordered to be wound up on August 3, 1948."}}, {"text": "August 3, 1948", "label": "DATE", "start_char": 1591, "end_char": 1605, "source": "ner", "metadata": {"in_sentence": "On May 11, 1948 a petition for winding up of the appellant was presented and it was ordered to be wound up on August 3, 1948."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 1925, "end_char": 1930, "source": "regex", "metadata": {"statute": null}}, {"text": "1st May 1948", "label": "DATE", "start_char": 2041, "end_char": 2053, "source": "ner", "metadata": {"in_sentence": "within time; while the respondents contended that: (1) all the instalments fell due by 1st May 1948 by operation of the default clause, and therefore, the application was barred by Art."}}, {"text": "Art. 182", "label": "PROVISION", "start_char": 2135, "end_char": 2143, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act, 1908", "label": "STATUTE", "start_char": 2155, "end_char": 2175, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 45", "label": "PROVISION", "start_char": 2189, "end_char": 2194, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1908", "statute": "the Limitation Act, 1908"}}, {"text": "Ram Culpo Bhattachar", "label": "OTHER_PERSON", "start_char": 3477, "end_char": 3497, "source": "ner", "metadata": {"in_sentence": "Ram Culpo Bhattachar; ij, v. Ram Chunder Shame, (18S7) I.L.R. 14 Cal."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 4333, "end_char": 4338, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 4477, "end_char": 4482, "source": "regex", "metadata": {"statute": null}}, {"text": "Wa'nchoo", "label": "JUDGE", "start_char": 5221, "end_char": 5229, "source": "ner", "metadata": {"in_sentence": "716 B-E, H; :zp Cl\n\nPer Wa'nchoo, J: The appellant would be entitled to excbde the entire period from Uth May 1948-the date of presentation• of the winding-up application-upto the date Df the execution application and would thus b<Yl>ntitled to execute the decree ior the toal of the 6 instalments due.", "canonical_name": "Wa'nchoo"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 5525, "end_char": 5530, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 45", "label": "PROVISION", "start_char": 5764, "end_char": 5774, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPREME COURT REPORTS [ 1965] 3 s.c.R.", "label": "COURT", "start_char": 6591, "end_char": 6629, "source": "ner", "metadata": {"in_sentence": "ing up order was made before or after that date provided the banking company was in the process of being wound up when the appli-- cation was filed; and, there is no scope or the court to consider\n\nSUPREME COURT REPORTS [ 1965] 3 s.c."}}, {"text": "Raghubar Dayal", "label": "JUDGE", "start_char": 6763, "end_char": 6777, "source": "ner", "metadata": {"in_sentence": "R.\n\nwhether the application, if filed before 30th December 1953, would be barred by limitation or not: [722H; 723 A-B, D-E; 724 E]\n\nPer Raghubar Dayal J: The appellant's application for execution is maintainable and not barred by time, because, the effect.", "canonical_name": "RAGHUBAR DAYAL, JJ."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 6887, "end_char": 6892, "source": "regex", "metadata": {"statute": null}}, {"text": "30th\n\nDeoember 1953", "label": "DATE", "start_char": 8589, "end_char": 8608, "source": "ner", "metadata": {"in_sentence": "If the provisions of sub-s. (1) can apply to the banking companies with respect to which proceedings on a winding petition were pending on 30th\n\nDeoember 1953, there is no reason why they should not apply to banking companies with respect to which winding up orders had been made prior to that date."}}, {"text": "3(fth December 1953", "label": "DATE", "start_char": 9215, "end_char": 9234, "source": "ner", "metadata": {"in_sentence": "Further, if a restricted interpretation is given to sub-s. (1), by confining it to cases where the cause of aotion was not barred on 30th December 1953, then sub-s. (3) will have no utility, because, that sub-section only provides that whatever advantage a banking company can derive from the provisions of sub-s. (1) when it is being wound up, would be available to it even if it is not being wound up, if a petition for its winding up had been presented prior to 3(fth December 1953."}}, {"text": "Per Sarkar", "label": "JUDGE", "start_char": 9727, "end_char": 9737, "source": "ner", "metadata": {"in_sentence": "(iii) Per Sarkar and Raghubar Dayal, JJ.:"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 9763, "end_char": 9772, "source": "regex", "metadata": {"statute": null}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 12287, "end_char": 12294, "source": "ner", "metadata": {"in_sentence": "740G, 741C\n\nG-H'I ,\n\nPer Wanchoo J.: The present case is governed by s. 45-0(3) because, the winding up petition was presented before s. 45-0(~) came into force, but by virtue of sub-s. (3), sub-s. (1) would apply, As there was default in the payment of the instalment due on 30th December 1947, the right to execute all the remaining instalments arose on 1st May 1948 and since that right was not waived, limitation for all the instalments began even on 1st May 1948, while the wfoding up application was filed on 11th May 1948, and so, the appellant could take advantage of the section and execute the decree for the entire amount. [", "canonical_name": "Wa'nchoo"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 12331, "end_char": 12336, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 12396, "end_char": 12401, "source": "regex", "metadata": {"statute": null}}, {"text": "30th December 1947", "label": "DATE", "start_char": 12538, "end_char": 12556, "source": "ner", "metadata": {"in_sentence": "740G, 741C\n\nG-H'I ,\n\nPer Wanchoo J.: The present case is governed by s. 45-0(3) because, the winding up petition was presented before s. 45-0(~) came into force, but by virtue of sub-s. (3), sub-s. (1) would apply, As there was default in the payment of the instalment due on 30th December 1947, the right to execute all the remaining instalments arose on 1st May 1948 and since that right was not waived, limitation for all the instalments began even on 1st May 1948, while the wfoding up application was filed on 11th May 1948, and so, the appellant could take advantage of the section and execute the decree for the entire amount. ["}}, {"text": "11th May 1948", "label": "DATE", "start_char": 12777, "end_char": 12790, "source": "ner", "metadata": {"in_sentence": "740G, 741C\n\nG-H'I ,\n\nPer Wanchoo J.: The present case is governed by s. 45-0(3) because, the winding up petition was presented before s. 45-0(~) came into force, but by virtue of sub-s. (3), sub-s. (1) would apply, As there was default in the payment of the instalment due on 30th December 1947, the right to execute all the remaining instalments arose on 1st May 1948 and since that right was not waived, limitation for all the instalments began even on 1st May 1948, while the wfoding up application was filed on 11th May 1948, and so, the appellant could take advantage of the section and execute the decree for the entire amount. ["}}, {"text": "s. 45", "label": "PROVISION", "start_char": 13056, "end_char": 13061, "source": "regex", "metadata": {"statute": null}}, {"text": "A. N. Sinha", "label": "LAWYER", "start_char": 14118, "end_char": 14129, "source": "ner", "metadata": {"in_sentence": "A. N. Sinha and P. K. Mukherjee, for the appellant."}}, {"text": "P. K. Mukherjee", "label": "LAWYER", "start_char": 14134, "end_char": 14149, "source": "ner", "metadata": {"in_sentence": "A. N. Sinha and P. K. Mukherjee, for the appellant."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 14171, "end_char": 14186, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee, for the respondent."}}, {"text": "Sarkar", "label": "JUDGE", "start_char": 14250, "end_char": 14256, "source": "ner", "metadata": {"in_sentence": "The following judgments were delivered:\n\nSarkar, J. On May 1, 1947, a decree was passed in favour of\n\nthe appellant bank against the respondents by consent of parties c\n\nfor payment of Rs.", "canonical_name": "SARKAR"}}, {"text": "May 30, D 1947", "label": "DATE", "start_char": 14756, "end_char": 14770, "source": "ner", "metadata": {"in_sentence": "The amounts payable under the decree by May 30, D 1947 were all duly paid."}}, {"text": "August 26, 1957", "label": "DATE", "start_char": 15068, "end_char": 15083, "source": "ner", "metadata": {"in_sentence": "None of these instalments was paid and an application for realising them by execution was made on August 26, 1957."}}, {"text": "Art. 182(7)", "label": "PROVISION", "start_char": 15411, "end_char": 15422, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule to the Limitation Act 1908", "label": "STATUTE", "start_char": 15430, "end_char": 15471, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "December 30, 1953", "label": "DATE", "start_char": 15634, "end_char": 15651, "source": "ner", "metadata": {"in_sentence": "On December 30, 1953, s. 45-0 was introduced in the Banking Companies Act, 1949 by the Banking Companies (Amendment) Act, 1953."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 15653, "end_char": 15658, "source": "regex", "metadata": {"linked_statute_text": "the First Schedule to the Limitation Act 1908", "statute": "the First Schedule to the Limitation Act 1908"}}, {"text": "Banking Companies Act, 1949", "label": "STATUTE", "start_char": 15683, "end_char": 15710, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. 45", "label": "PROVISION", "start_char": 15812, "end_char": 15817, "source": "regex", "metadata": {"linked_statute_text": "the Banking Companies Act, 1949", "statute": "the Banking Companies Act, 1949"}}, {"text": "tained in the Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 15874, "end_char": 15915, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 182(7)", "label": "PROVISION", "start_char": 16344, "end_char": 16355, "source": "regex", "metadata": {"linked_statute_text": "Notwithstanding anything to the contrary con- G\n\ntained in the Indian Limitation Act, 1908", "statute": "Notwithstanding anything to the contrary con- G\n\ntained in the Indian Limitation Act, 1908"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 16415, "end_char": 16420, "source": "regex", "metadata": {"linked_statute_text": "Notwithstanding anything to the contrary con- G\n\ntained in the Indian Limitation Act, 1908", "statute": "Notwithstanding anything to the contrary con- G\n\ntained in the Indian Limitation Act, 1908"}}, {"text": "Art 182(7)", "label": "PROVISION", "start_char": 16726, "end_char": 16736, "source": "regex", "metadata": {"linked_statute_text": "Notwithstanding anything to the contrary con- G\n\ntained in the Indian Limitation Act, 1908", "statute": "Notwithstanding anything to the contrary con- G\n\ntained in the Indian Limitation Act, 1908"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 16763, "end_char": 16768, "source": "regex", "metadata": {"linked_statute_text": "Notwithstanding anything to the contrary con- G\n\ntained in the Indian Limitation Act, 1908", "statute": "Notwithstanding anything to the contrary con- G\n\ntained in the Indian Limitation Act, 1908"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 17172, "end_char": 17177, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 17344, "end_char": 17349, "source": "regex", "metadata": {"statute": null}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 18583, "end_char": 18591, "source": "ner", "metadata": {"in_sentence": "Bachawat J. expressly said that the appellant \"in fact has waived the benefit of that option.\""}}, {"text": "s. 45", "label": "PROVISION", "start_char": 19615, "end_char": 19620, "source": "regex", "metadata": {"statute": null}}, {"text": "Wright", "label": "JUDGE", "start_char": 19913, "end_char": 19919, "source": "ner", "metadata": {"in_sentence": "The general rule no doubt is, as was stated by Wright J. in In re."}}, {"text": "Athlumney", "label": "OTHER_PERSON", "start_char": 19933, "end_char": 19942, "source": "ner", "metadata": {"in_sentence": "Athlumney,(') \"Perhaps no rule of construction is more firmly established than this-that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided B without doing violence to the language of the enactment."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 20516, "end_char": 20521, "source": "regex", "metadata": {"statute": null}}, {"text": "Mellor", "label": "JUDGE", "start_char": 22618, "end_char": 22624, "source": "ner", "metadata": {"in_sentence": "Mellor J. observed (pp."}}, {"text": "Section 43", "label": "PROVISION", "start_char": 23834, "end_char": 23844, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 43A", "label": "PROVISION", "start_char": 24053, "end_char": 24064, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 24688, "end_char": 24693, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 25380, "end_char": 25385, "source": "regex", "metadata": {"statute": null}}, {"text": "S11", "label": "PROVISION", "start_char": 25960, "end_char": 25963, "source": "regex", "metadata": {"statute": null}}, {"text": "Denman", "label": "JUDGE", "start_char": 27873, "end_char": 27879, "source": "ner", "metadata": {"in_sentence": "In R. v. St. Mary, Whitechapel (Inhabitants)(') Lord Denman C. J. said that a statute \"is not properly called a retrospective statute because a part of the requisites for its action is drawn from iime antecedent to its passing.\""}}, {"text": "s. 45", "label": "PROVISION", "start_char": 29293, "end_char": 29298, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 29825, "end_char": 29830, "source": "regex", "metadata": {"statute": null}}, {"text": "December 30, 1947", "label": "DATE", "start_char": 30551, "end_char": 30568, "source": "ner", "metadata": {"in_sentence": "It is, therefore, said that even if the first subsection had a retrospective operation, it could result in saving the bar of limitation only so far as the application concemed the instalment which fell due on December 30, 1947 for the petition for the winding up of the appellant bank had been presented on May 11, 1948 and."}}, {"text": "Reserve Bank of India", "label": "ORG", "start_char": 32856, "end_char": 32877, "source": "ner", "metadata": {"in_sentence": "To ensure that, large powers have been given to the Reserve Bank of India."}}, {"text": "Bailey", "label": "JUDGE", "start_char": 34504, "end_char": 34510, "source": "ner", "metadata": {"in_sentence": "Bailey J. observed, \"But assuming that they cannot enter into a recognizance, yet if they are persons capable of being G aggrieved by and appealing against a rate."}}, {"text": "B Wancl100", "label": "JUDGE", "start_char": 35746, "end_char": 35756, "source": "ner", "metadata": {"in_sentence": "B Wancl100, J.\n\nThis appeal on a certificate granted by the Calcutta Hih c,1urt raises a question as lo the intcrpretat10~ of s ."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 35898, "end_char": 35911, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Midnapore", "label": "GPE", "start_char": 36236, "end_char": 36245, "source": "ner", "metadata": {"in_sentence": "The appellant-bank tin liquidation) through its Midnapore branch got a compromise decree against the respondent on May I, 1947, for the sum of Rs."}}, {"text": "May I, 1947", "label": "DATE", "start_char": 36303, "end_char": 36314, "source": "ner", "metadata": {"in_sentence": "The appellant-bank tin liquidation) through its Midnapore branch got a compromise decree against the respondent on May I, 1947, for the sum of Rs."}}, {"text": "May 9. 1947", "label": "DATE", "start_char": 36464, "end_char": 36475, "source": "ner", "metadata": {"in_sentence": "6,885 /- were to be paid by May 9."}}, {"text": "May 30. 1947", "label": "DATE", "start_char": 36560, "end_char": 36572, "source": "ner", "metadata": {"in_sentence": "1.000 /- on May 30."}}, {"text": "December 30. 1948", "label": "DATE", "start_char": 36631, "end_char": 36648, "source": "ner", "metadata": {"in_sentence": "4.000/- on December 30."}}, {"text": "August 24. 1957", "label": "DATE", "start_char": 37957, "end_char": 37972, "source": "ner", "metadata": {"in_sentence": "On August 24."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 38151, "end_char": 38170, "source": "ner", "metadata": {"in_sentence": "1957, the appellant presented an application in tabular form for execution of the decree on the ordinary original\n\n7211 SUPREME , COl)R'f REPORTS fl965) 3 8.l', R.\n\ncivil side of the Calcutta High Court."}}, {"text": "May I 1. 1948", "label": "DATE", "start_char": 38497, "end_char": 38510, "source": "ner", "metadata": {"in_sentence": "It was stated in the application that ihe respondent had failed to pay the amount of the decree under execution and that the appellant had been wound up by an order of the court dated August 3, 1948 on a petition for winding-up presented to it on May I 1."}}, {"text": "June 2. 1958", "label": "DATE", "start_char": 39034, "end_char": 39046, "source": "ner", "metadata": {"in_sentence": "A prayer was also made for the appointment of an c interim receiver and an interim order for appointment of such receiver was made on August 26, 1957, which order was confirmed on June 2."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 39293, "end_char": 39298, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 39393, "end_char": 39398, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 39763, "end_char": 39768, "source": "regex", "metadata": {"statute": null}}, {"text": "Notwithstanding anything to the contrary contained in the Indian Limitation Act", "label": "STATUTE", "start_char": 39812, "end_char": 39891, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "May II, 1948", "label": "DATE", "start_char": 40580, "end_char": 40592, "source": "ner", "metadata": {"in_sentence": "I have already mentioned that the application for winding up the appellant was presented on May II, 1948."}}, {"text": "March 16, 1949", "label": "DATE", "start_char": 40688, "end_char": 40702, "source": "ner", "metadata": {"in_sentence": "The Act came into force on March 16, 1949."}}, {"text": "March 18, 1950", "label": "DATE", "start_char": 40708, "end_char": 40722, "source": "ner", "metadata": {"in_sentence": "On March 18, 1950."}}, {"text": "October 24. 1953", "label": "DATE", "start_char": 40844, "end_char": 40860, "source": "ner", "metadata": {"in_sentence": "On October 24."}}, {"text": "May 11. 1948", "label": "DATE", "start_char": 41114, "end_char": 41126, "source": "ner", "metadata": {"in_sentence": "The case of the appellant throughout has been that the period from May 11."}}, {"text": "August B 26, 1957", "label": "DATE", "start_char": 41170, "end_char": 41187, "source": "ner", "metadata": {"in_sentence": "1948 (when the winding-up petition was made) to August B 26, 1957 twhen the execution application was made> had to be excluded in computing the period of limitation in view of sub-ss."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 41322, "end_char": 41327, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 41408, "end_char": 41413, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 41775, "end_char": 41780, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 41832, "end_char": 41837, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 41983, "end_char": 41988, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 42247, "end_char": 42252, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 42847, "end_char": 42852, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 43203, "end_char": 43208, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 43226, "end_char": 43231, "source": "regex", "metadata": {"statute": null}}, {"text": "December 30. 1953", "label": "DATE", "start_char": 43384, "end_char": 43401, "source": "ner", "metadata": {"in_sentence": "The principal question therefore is whether the language of s. 45-0 (I I read with s. 45-0 (3) is retrospective in operation and revives clai'lls that might ave become barred by limitation on the date when that section camo, into force i.e. December 30."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 43534, "end_char": 43539, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 43793, "end_char": 43798, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 44119, "end_char": 44124, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 45", "label": "PROVISION", "start_char": 44231, "end_char": 44241, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 44428, "end_char": 44455, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 45", "label": "PROVISION", "start_char": 44518, "end_char": 44523, "source": "regex", "metadata": {"linked_statute_text": "the Indian Limitation Act, 1908", "statute": "the Indian Limitation Act, 1908"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 44624, "end_char": 44629, "source": "regex", "metadata": {"linked_statute_text": "the Indian Limitation Act, 1908", "statute": "the Indian Limitation Act, 1908"}}, {"text": "Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 45102, "end_char": 45129, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "December 30, I 953", "label": "DATE", "start_char": 45397, "end_char": 45415, "source": "ner", "metadata": {"in_sentence": "Thus where a banking company which is being wound up files a suit or makes an application on or after December 30, I 953, when s. 45-0 (!)"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 45422, "end_char": 45427, "source": "regex", "metadata": {"linked_statute_text": "the Indian Limitation Act, 1908", "statute": "the Indian Limitation Act, 1908"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 45922, "end_char": 45927, "source": "regex", "metadata": {"linked_statute_text": "the Indian Limitation Act, 1908", "statute": "the Indian Limitation Act, 1908"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 46124, "end_char": 46129, "source": "regex", "metadata": {"linked_statute_text": "the Indian Limitation Act, 1908", "statute": "the Indian Limitation Act, 1908"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 46198, "end_char": 46203, "source": "regex", "metadata": {"statute": null}}, {"text": "December 30, 195~.", "label": "DATE", "start_char": 46931, "end_char": 46949, "source": "ner", "metadata": {"in_sentence": "They imperatively lay down that where an application or suit is filed by a banking company (which is being wound up) on or after December 30, 195~. when s. 4~-0 (!)"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 46955, "end_char": 46959, "source": "regex", "metadata": {"statute": null}}, {"text": "SHEE TIAXK 'll, TJUTT UOY", "label": "JUDGE", "start_char": 47231, "end_char": 47256, "source": "ner", "metadata": {"in_sentence": "Further by virture of sub-s. (3), sub-s. (I) applies not only\n\nSHEE TIAXK 'll, TJUTT UOY (Wanckoo, J.) 123\n\nA to those banking companies which were being wound up on applications presented on or after s. 45-0 (I) came into force, but also to those banking companies where the application for winding-up was made before December 30, 1953, provided the banking company was in the process of being wound up when the suit or application was filed."}}, {"text": "Wanckoo", "label": "JUDGE", "start_char": 47258, "end_char": 47265, "source": "ner", "metadata": {"in_sentence": "Further by virture of sub-s. (3), sub-s. (I) applies not only\n\nSHEE TIAXK 'll, TJUTT UOY (Wanckoo, J.) 123\n\nA to those banking companies which were being wound up on applications presented on or after s. 45-0 (I) came into force, but also to those banking companies where the application for winding-up was made before December 30, 1953, provided the banking company was in the process of being wound up when the suit or application was filed.", "canonical_name": "Wa'nchoo"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 47369, "end_char": 47374, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 48881, "end_char": 48886, "source": "regex", "metadata": {"statute": null}}, {"text": "Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 48954, "end_char": 49039, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Banking Companies Liquidation Proceedings Committee 1952", "label": "ORG", "start_char": 49491, "end_char": 49547, "source": "ner", "metadata": {"in_sentence": "It seems thereafter the Banking Companies Liquidation Proceedings Committee 1952 was appointed and had recommended that \"provisions may be made by the legislature to the effect that limitation will stop running against a banking company H from the date of the winding-up order.\""}}, {"text": "s. 45", "label": "PROVISION", "start_char": 49793, "end_char": 49798, "source": "regex", "metadata": {"linked_statute_text": "Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908", "statute": "Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 49823, "end_char": 49828, "source": "regex", "metadata": {"linked_statute_text": "Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908", "statute": "Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908"}}, {"text": "ss. 12 to 16", "label": "PROVISION", "start_char": 50997, "end_char": 51009, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 51017, "end_char": 51031, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 45", "label": "PROVISION", "start_char": 51868, "end_char": 51873, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 52005, "end_char": 52010, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 52038, "end_char": 52043, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 52581, "end_char": 52586, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 52746, "end_char": 52751, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 52875, "end_char": 52880, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 53563, "end_char": 53568, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 53666, "end_char": 53671, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 54619, "end_char": 54624, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 55033, "end_char": 55038, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 55348, "end_char": 55362, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 45", "label": "PROVISION", "start_char": 55401, "end_char": 55406, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 56064, "end_char": 56078, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 45", "label": "PROVISION", "start_char": 56559, "end_char": 56564, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 56636, "end_char": 56641, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 57036, "end_char": 57041, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 57102, "end_char": 57107, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 57164, "end_char": 57169, "source": "regex", "metadata": {"statute": null}}, {"text": "26, 1957", "label": "DATE", "start_char": 57552, "end_char": 57560, "source": "ner", "metadata": {"in_sentence": "If limitation had begun to run before May\n\nII, 1948, the period from May 11, 1948 upto the date of the application for execution on August 26, 1957, would have to be exclud- -e<.l."}}, {"text": "December 30;-1947.", "label": "DATE", "start_char": 57673, "end_char": 57691, "source": "ner", "metadata": {"in_sentence": "Now the evidence is that there was default in payment of the instalmentdue on December 30;-1947."}}, {"text": "May l; 1948", "label": "DATE", "start_char": 58067, "end_char": 58078, "source": "ner", "metadata": {"in_sentence": "These four months expired on April 30, 1948 and from May l; 1948-the appellant~ bank was entitled to execute the entire decretal amount that re- D mained due."}}, {"text": "May 1, 1948", "label": "DATE", "start_char": 58248, "end_char": 58259, "source": "ner", "metadata": {"in_sentence": "instalments arose on May 1, 1948."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 58445, "end_char": 58450, "source": "regex", "metadata": {"statute": null}}, {"text": "December 30,\n\n1949", "label": "DATE", "start_char": 60130, "end_char": 60148, "source": "ner", "metadata": {"in_sentence": "4,000/- each due on December 30, 1948 and December 30,\n\n1949."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 61005, "end_char": 61010, "source": "regex", "metadata": {"statute": null}}, {"text": "E Raghubar Dayal", "label": "JUDGE", "start_char": 61344, "end_char": 61360, "source": "ner", "metadata": {"in_sentence": "E Raghubar Dayal, J_ This appeal, by certificate under art."}}, {"text": "art. 133(l)(a)", "label": "PROVISION", "start_char": 61399, "end_char": 61413, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 61464, "end_char": 61469, "source": "regex", "metadata": {"statute": null}}, {"text": "Banking Companies Act, 1949", "label": "STATUTE", "start_char": 61479, "end_char": 61506, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "May 30, 1947", "label": "DATE", "start_char": 62200, "end_char": 62212, "source": "ner", "metadata": {"in_sentence": "1,000/- on May 30, 1947."}}, {"text": "December 30, 1952", "label": "DATE", "start_char": 62425, "end_char": 62442, "source": "ner", "metadata": {"in_sentence": "3,000/- on December 30, 1952."}}, {"text": "August 24, 1957", "label": "DATE", "start_char": 63459, "end_char": 63474, "source": "ner", "metadata": {"in_sentence": "On August 24, 1957, the appellant presented an application in a Tabular form for execution of the decree, on the ordinary original civil side of the Calcutta High Court."}}, {"text": "Sukumar Dutta", "label": "OTHER_PERSON", "start_char": 64213, "end_char": 64226, "source": "ner", "metadata": {"in_sentence": "It was stated in column lO meant for noting the mode in which the assistance of the Court was required that the defendant judgment debtor had failed to pay any portion of the decretal amount or interest, that the decree-holder Bank was wound up by an order of the Court dated August 3, 1948 on a petition for winding-up presented to it on May 11, 1948 and that the Court Liquidator, High Court, and the Official Liquidator of the decree-holder Bank, be appointed receiver without security and without remuneration, to collect and realise the amount payable to the defendant firm and/or Sukumar Dutta, one of its partners, by the Executive Engineer, Works & Builjing Department, Midnapur Division, upto a maximum limit of Rs."}}, {"text": "Midnapur Division", "label": "GPE", "start_char": 64305, "end_char": 64322, "source": "ner", "metadata": {"in_sentence": "It was stated in column lO meant for noting the mode in which the assistance of the Court was required that the defendant judgment debtor had failed to pay any portion of the decretal amount or interest, that the decree-holder Bank was wound up by an order of the Court dated August 3, 1948 on a petition for winding-up presented to it on May 11, 1948 and that the Court Liquidator, High Court, and the Official Liquidator of the decree-holder Bank, be appointed receiver without security and without remuneration, to collect and realise the amount payable to the defendant firm and/or Sukumar Dutta, one of its partners, by the Executive Engineer, Works & Builjing Department, Midnapur Division, upto a maximum limit of Rs."}}, {"text": "June 2, 1958", "label": "DATE", "start_char": 64626, "end_char": 64638, "source": "ner", "metadata": {"in_sentence": "This order was confirmed on June 2, 1958."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 65671, "end_char": 65676, "source": "regex", "metadata": {"statute": null}}, {"text": "Notwithstanding anything to the contrary contained in the Indian Limitation Act", "label": "STATUTE", "start_char": 65723, "end_char": 65802, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Notwithstanding anything to the contrary contained in the Indian Limitation Act", "label": "STATUTE", "start_char": 66125, "end_char": 66204, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 543", "label": "PROVISION", "start_char": 66214, "end_char": 66225, "source": "regex", "metadata": {"linked_statute_text": "Notwithstanding anything to the contrary contained in the Indian Limitation Act", "statute": "Notwithstanding anything to the contrary contained in the Indian Limitation Act"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 66234, "end_char": 66247, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Octobr. 24, 1953", "label": "DATE", "start_char": 67513, "end_char": 67529, "source": "ner", "metadata": {"in_sentence": "On Octobr."}}, {"text": "December_ 30, ·-1953", "label": "DATE", "start_char": 67618, "end_char": 67638, "source": "ner", "metadata": {"in_sentence": "24, 1953, the Banking Companies (Amendv menO Ordinance JV of 1953 was promulgated and lastly, on December_ 30, ·-1953, the Amending Act came into f.prce: The H contention for the appellant before the High Court and in this\n\nCourt is that the period between May 11."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 68000, "end_char": 68005, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 68170, "end_char": 68175, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 68275, "end_char": 68280, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 68387, "end_char": 68401, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 45", "label": "PROVISION", "start_char": 68403, "end_char": 68413, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 68702, "end_char": 68707, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 69162, "end_char": 69167, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 69582, "end_char": 69587, "source": "regex", "metadata": {"statute": null}}, {"text": "Lahiri", "label": "JUDGE", "start_char": 69882, "end_char": 69888, "source": "ner", "metadata": {"in_sentence": "Lahiri, C. J. said:\n\n\"On this point it is significant to note that sub-section 3 of section 45-0 makes the provisions of the section applicable only to a banking company in respect of which F a petition for winding-up has been presented before the commencement of the Banking Companies (Amendment) Act of 1953; but does not make the provisions of the section applicable to debts due to the banking company which had become barred by lapse of time before the date of such commencement."}}, {"text": "section 3", "label": "PROVISION", "start_char": 69953, "end_char": 69962, "source": "regex", "metadata": {"statute": null}}, {"text": "section 45", "label": "PROVISION", "start_char": 69966, "end_char": 69976, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 70384, "end_char": 70393, "source": "regex", "metadata": {"statute": null}}, {"text": "section 45", "label": "PROVISION", "start_char": 70397, "end_char": 70407, "source": "regex", "metadata": {"statute": null}}, {"text": "section 45", "label": "PROVISION", "start_char": 70926, "end_char": 70936, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 71151, "end_char": 71156, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 71350, "end_char": 71355, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 71512, "end_char": 71517, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 71641, "end_char": 71646, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 72941, "end_char": 72967, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "OA was added to the Indian Companies Act", "label": "STATUTE", "start_char": 73041, "end_char": 73081, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Banking Companies Act, 1949", "label": "STATUTE", "start_char": 73171, "end_char": 73198, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 45", "label": "PROVISION", "start_char": 73380, "end_char": 73390, "source": "regex", "metadata": {"linked_statute_text": "the Banking Companies Act, 1949", "statute": "the Banking Companies Act, 1949"}}, {"text": "Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 73565, "end_char": 73650, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 40", "label": "PROVISION", "start_char": 74462, "end_char": 74467, "source": "regex", "metadata": {"linked_statute_text": "Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908", "statute": "Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908"}}, {"text": "s. 466", "label": "PROVISION", "start_char": 74544, "end_char": 74550, "source": "regex", "metadata": {"linked_statute_text": "Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908", "statute": "Notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908"}}, {"text": "Companies Act, 1956", "label": "STATUTE", "start_char": 74558, "end_char": 74577, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 74953, "end_char": 74966, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 45F", "label": "PROVISION", "start_char": 76239, "end_char": 76250, "source": "regex", "metadata": {"statute": null}}, {"text": "SREE BANK t'. DUTT ROY (Dayal, J.) 733", "label": "PETITIONER", "start_char": 76298, "end_char": 76336, "source": "ner", "metadata": {"in_sentence": "SREE BANK t'."}}, {"text": "Banking Companies Act", "label": "STATUTE", "start_char": 76338, "end_char": 76359, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "India", "label": "GPE", "start_char": 76657, "end_char": 76662, "source": "ner", "metadata": {"in_sentence": "They urged that in many cases it takes the Liquidator a long time to ascertain who the debtors are and the amounts due from them, particularly where the records are distributed in different parts of India or are incomplete."}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 76890, "end_char": 76904, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 45", "label": "PROVISION", "start_char": 77831, "end_char": 77836, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 79627, "end_char": 79632, "source": "regex", "metadata": {"statute": null}}, {"text": "30, 1953", "label": "DATE", "start_char": 80499, "end_char": 80507, "source": "ner", "metadata": {"in_sentence": "D There is nothing in the language of the sub-section to limit the expression 'companies being wound up' to those companies with respect to which winding-up orders are made subsequent to December 30, 1953."}}, {"text": "Brett M", "label": "JUDGE", "start_char": 81745, "end_char": 81752, "source": "ner", "metadata": {"in_sentence": ".of suing and being sued either in contract or in tort, or otherwise, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal pro- B ceeding brought by or taken against her, and any damages or costs recovered by her in any such action or proceeding shall be her separate property, .. ,,,\"\n\nBrett M, R. said at p, 787 that the section dealt with an action for tort nd that after the Act came into operation a married woman ----···----\n\n\\') J .n."}}, {"text": "BREE BANK V. DUIT ROY", "label": "JUDGE", "start_char": 81916, "end_char": 81937, "source": "ner", "metadata": {"in_sentence": "13 Q.B.D. 784,\n\nBREE BANK V. DUIT ROY (Day,11, J.) 735\n\nmight bring such an action in her own name and the damages and costs recovered shall be her separate property."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 82751, "end_char": 82756, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 83317, "end_char": 83321, "source": "regex", "metadata": {"linked_statute_text": "There is nothing to limit the provisions to petitions for winding-up which had been presented after the Amending Act", "statute": "There is nothing to limit the provisions to petitions for winding-up which had been presented after the Amending Act"}}, {"text": "Branson", "label": "JUDGE", "start_char": 83690, "end_char": 83697, "source": "ner", "metadata": {"in_sentence": "It was said by Branson J .,"}}, {"text": "Dec7mber. 30, 1953", "label": "DATE", "start_char": 84473, "end_char": 84491, "source": "ner", "metadata": {"in_sentence": "woul~ expressly apply the provmons of sub-s. (1) to the companies which were being wound-up on Dec7mber."}}, {"text": "December B 30, 1953", "label": "DATE", "start_char": 85188, "end_char": 85207, "source": "ner", "metadata": {"in_sentence": "If the provisions of sub-s. (I) can apply to the companies with respect to which proceedings on a winding-up petition were pending on December B 30, 1953, it would be very anomalous if they would not apply."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 86419, "end_char": 86424, "source": "regex", "metadata": {"statute": null}}, {"text": "SRE~ HANK I', DUTT ltoY (D11y11/, J.)", "label": "JUDGE", "start_char": 87606, "end_char": 87643, "source": "ner", "metadata": {"in_sentence": "The order for the winding-up of the company would be made subsequent to the date and therefore suits or\n\n• SRE~ HANK I', DUTT ltoY (D11y11/, J.) 737\n\napplications covered by sub-s. ([) would get the advantage of the provisions of that Act."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 88164, "end_char": 88169, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 88485, "end_char": 88490, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 88991, "end_char": 88996, "source": "regex", "metadata": {"statute": null}}, {"text": "March 31, 1952", "label": "DATE", "start_char": 89806, "end_char": 89820, "source": "ner", "metadata": {"in_sentence": "In Punjab Commerce Bank v. Brij Lal(' ) the suit was filed on March 31, 1952 under s .• 45-B of the Banking Companies Act, 1949, as amended by Act XX of 1950."}}, {"text": "Banking Companies Act, 1949", "label": "STATUTE", "start_char": 89844, "end_char": 89871, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "October 9, 1946", "label": "DATE", "start_char": 89933, "end_char": 89948, "source": "ner", "metadata": {"in_sentence": "The cause of action arose on October 9, 1946."}}, {"text": "February 17, 1948", "label": "DATE", "start_char": 89994, "end_char": 90011, "source": "ner", "metadata": {"in_sentence": "The application for winding-up was made on February 17, 1948 and the winding-up order was made on October 11, 1952."}}, {"text": "October 11, 1952", "label": "DATE", "start_char": 90049, "end_char": 90065, "source": "ner", "metadata": {"in_sentence": "The application for winding-up was made on February 17, 1948 and the winding-up order was made on October 11, 1952."}}, {"text": "December 2. 1952", "label": "DATE", "start_char": 90094, "end_char": 90110, "source": "ner", "metadata": {"in_sentence": "The suit was dismissed on December 2."}}, {"text": "Bishan Narain", "label": "JUDGE", "start_char": 90815, "end_char": 90828, "source": "ner", "metadata": {"in_sentence": "Bishan Narain J .,"}}, {"text": "section 45", "label": "PROVISION", "start_char": 90905, "end_char": 90915, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 91446, "end_char": 91451, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 91696, "end_char": 91701, "source": "regex", "metadata": {"statute": null}}, {"text": "Amending Act, 1953", "label": "STATUTE", "start_char": 92071, "end_char": 92089, "source": "regex", "metadata": {}}, {"text": "s. 45", "label": "PROVISION", "start_char": 92286, "end_char": 92291, "source": "regex", "metadata": {"linked_statute_text": "the Amending Act, 1953", "statute": "the Amending Act, 1953"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 92345, "end_char": 92350, "source": "regex", "metadata": {"linked_statute_text": "the Amending Act, 1953", "statute": "the Amending Act, 1953"}}, {"text": "June 27. 1945", "label": "DATE", "start_char": 92681, "end_char": 92694, "source": "ner", "metadata": {"in_sentence": "In Suburban Bank Ltd .. v. Nistaran(') the plaintiff had claimed inter a/ia several sums advanced as loans to the defendant on June 27."}}, {"text": "May 12, 1948", "label": "DATE", "start_char": 92732, "end_char": 92744, "source": "ner", "metadata": {"in_sentence": "Winding-up .application was made on May 12, 1948; the winding-up order was passed on June 30, 1948 and the suit was instituted on December 3."}}, {"text": "June 30, 1948", "label": "DATE", "start_char": 92781, "end_char": 92794, "source": "ner", "metadata": {"in_sentence": "Winding-up .application was made on May 12, 1948; the winding-up order was passed on June 30, 1948 and the suit was instituted on December 3."}}, {"text": "December 3. 1949", "label": "DATE", "start_char": 92826, "end_char": 92842, "source": "ner", "metadata": {"in_sentence": "Winding-up .application was made on May 12, 1948; the winding-up order was passed on June 30, 1948 and the suit was instituted on December 3."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 92848, "end_char": 92853, "source": "regex", "metadata": {"linked_statute_text": "the Amending Act, 1953", "statute": "the Amending Act, 1953"}}, {"text": "Banking Companies Act", "label": "STATUTE", "start_char": 92981, "end_char": 93002, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "art. 59", "label": "PROVISION", "start_char": 93136, "end_char": 93143, "source": "regex", "metadata": {"linked_statute_text": "Banking Companies Act", "statute": "Banking Companies Act"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 93152, "end_char": 93166, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 45", "label": "PROVISION", "start_char": 93171, "end_char": 93176, "source": "regex", "metadata": {"linked_statute_text": "Banking Companies Act", "statute": "Banking Companies Act"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 93194, "end_char": 93207, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 45", "label": "PROVISION", "start_char": 93259, "end_char": 93264, "source": "regex", "metadata": {"linked_statute_text": "Banking Companies Act", "statute": "Banking Companies Act"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 93547, "end_char": 93552, "source": "regex", "metadata": {"linked_statute_text": "Banking Companies Act", "statute": "Banking Companies Act"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 93678, "end_char": 93683, "source": "regex", "metadata": {"linked_statute_text": "Banking Companies Act", "statute": "Banking Companies Act"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 93950, "end_char": 93955, "source": "regex", "metadata": {"linked_statute_text": "Banking Companies Act", "statute": "Banking Companies Act"}}, {"text": "December 29, 1950", "label": "DATE", "start_char": 94102, "end_char": 94119, "source": "ner", "metadata": {"in_sentence": "In MI s. Kesarichand v. s. B. Corpo; mion('l the period of limitation was to commence from December 29, 1950."}}, {"text": "Article 85", "label": "PROVISION", "start_char": 94121, "end_char": 94131, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 94139, "end_char": 94153, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "February 26 • . l 953", "label": "DATE", "start_char": 94246, "end_char": 94267, "source": "ner", "metadata": {"in_sentence": "Article 85 of the Limitation Act was held applicable to the case .. The application for winding-up of thecompany was made on February 26 • ."}}, {"text": "May 26, 1953", "label": "DATE", "start_char": 94301, "end_char": 94313, "source": "ner", "metadata": {"in_sentence": "l 953 and winding-up order was made on May 26, 1953."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 94336, "end_char": 94341, "source": "regex", "metadata": {"statute": null}}, {"text": "June 28, l 954", "label": "DATE", "start_char": 94372, "end_char": 94386, "source": "ner", "metadata": {"in_sentence": "An application under s. 45-D of the Act was presented on June 28, l 954, more than three years."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 94867, "end_char": 94872, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 95020, "end_char": 95025, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 95213, "end_char": 95218, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 235", "label": "PROVISION", "start_char": 95336, "end_char": 95342, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 95350, "end_char": 95376, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 235", "label": "PROVISION", "start_char": 95702, "end_char": 95708, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 95962, "end_char": 95967, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "s. 235", "label": "PROVISION", "start_char": 96145, "end_char": 96151, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 96209, "end_char": 96214, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "September 30, 1953", "label": "DATE", "start_char": 96245, "end_char": 96263, "source": "ner", "metadata": {"in_sentence": "The question about the application being made within time was to be decided on the law of limitation as it stood on September 30, 195~. The law of limitation as laid down in s. 235 was to apply taking into consideration the provisions of s. 45-F B of the Act as it stood on September 30, 1953."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 96376, "end_char": 96381, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 96430, "end_char": 96435, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta", "label": "GPE", "start_char": 96666, "end_char": 96674, "source": "ner", "metadata": {"in_sentence": "It however considered the effect of s. 45-0 and said at p. 494 that there was nothing in the section to show that it was intended to be retrospective in effect in the sense that it revived remedies which had already come 0 to an end and reliance was placed on the earlier Calcutta, Punjab and Assam cases rererred to above."}}, {"text": "Punjab", "label": "GPE", "start_char": 96676, "end_char": 96682, "source": "ner", "metadata": {"in_sentence": "It however considered the effect of s. 45-0 and said at p. 494 that there was nothing in the section to show that it was intended to be retrospective in effect in the sense that it revived remedies which had already come 0 to an end and reliance was placed on the earlier Calcutta, Punjab and Assam cases rererred to above."}}, {"text": "Assam", "label": "GPE", "start_char": 96687, "end_char": 96692, "source": "ner", "metadata": {"in_sentence": "It however considered the effect of s. 45-0 and said at p. 494 that there was nothing in the section to show that it was intended to be retrospective in effect in the sense that it revived remedies which had already come 0 to an end and reliance was placed on the earlier Calcutta, Punjab and Assam cases rererred to above."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 96773, "end_char": 96778, "source": "regex", "metadata": {"statute": null}}, {"text": "May I, 1948", "label": "DATE", "start_char": 97358, "end_char": 97369, "source": "ner", "metadata": {"in_sentence": "On May I, 1948, the appellant's right to execute the decree for the entire amount due under the decree arose."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 98501, "end_char": 98506, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 98984, "end_char": 98989, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 100200, "end_char": 100205, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 101089, "end_char": 101094, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 101288, "end_char": 101293, "source": "regex", "metadata": {"statute": null}}, {"text": "BUPREKE", "label": "PETITIONER", "start_char": 101803, "end_char": 101810, "source": "ner", "metadata": {"in_sentence": "BUPREKE\n\nCOURT\n\nREPORTS [1965] 3 s.c.u."}}]}
{"document_id": "1965_3_71_77_EN", "year": 1965, "text": "SALES TAX OFFICER, JODHPUR AND ANOTHER\n\nM/S. SHIV RATAN G. MOHATTA February 12, 1965\n\nIP.B. GAJENDRAGADKAR, C.J., M. HIDAYATULLAH, J.C. SHAH AND\n\nS.M. SIKRI, JJ.]\n\nCoJ>stitution of India. Arts. 226 and 286(1) (b)-Questions of fact to determine whether sale in the course of import~Therefore if State sales tax leviable-VFhether should be decided in writ proceed-ings.\n\nC The Sales Tax Officer rej\"cled the assessee's claim that he was not liable :.a be assessed to sale.5. tax in respect of certain sales of cement imported from Pakistan because (i) he was not a deal€f within the meaning of s.2(f) of the Rajasthan Act 29 of 1954, and (ii) the sales in question were iii the cJurse of the import within the meaning of Art. 286(1) (b) of the Constitution. In the order of assessment. there was no 'discussion of the question of applicability of D Art. 286(1) (b).\n\nThe assessee therefore filed a petition under Art. 226 challenging the assessment order on the grounds taken before the Sales Tax Officer and aiso claiming that the latter had failed to c<Jnsider the impact and effect of Art. 286 (1) (b) on the facts of the case. The State objected to the maintainability of the petition on the ground that the !)2titioner should have avciled of the alternative remedy of appeal E provided under the Rajasthan Sales Tax Act, but the High Court overru'ed this objection for the reeson, inter alia, that the petitioner had challenged th~ appellant's jurisdiction to assess him to sales tax in view of the provisions of Art. 286(1) (b). Upon dealing with the merits cf the case, the High Court held that on the facts of the case it was cl, ea: that the sales in question took place when the goods \\\\'ere in the course o; imioort and therefore, by virtue of Art. 286(1) (b) were not F liable to sales tax. The court therefore quashed the order of assessment.\n\nOn appeal to this Court, it was contended on behalf of the State that the High Court should have refused to entertain the petition as many of the crucial facts had not been brought on the record by the respondent, and further-more, it was not established that the cement was sold in the course of import into India.\n\nG HELD: The High Court should not have decided the disputed questions of fact, but should merely have quashed the assessment order on the ground that the Sales Tax Officer had not dealt with the question raised before him and remanded the case. [77 Bl OBITER: The High court should have declined to entertain the petition, as in this case there were no exceptional circumstan- H ces to warrant the exercis€ of the extraordinary jurisdiction under Art. 226. It was not the object of Art. 226 to convert High Courts into original or appellate assessing authorities whenever the assessee chose to attack an assessment order on the ground that a sa1e was made in the course of import and was therefore exempt from tax. The fact that an assessee might have to deposit sales tax when filing an appeal could not in every case justify his bypassing the remedies provided by the Sales Tax Act. There must be something mor2 :n a case to warrant the entertainment of a petition under .Art. 226, something going to the root of the jurisdiction of the Sales\n\nTax Officer something to show that it would be a case of , palpable A injustice td the assessee to force him to adopt the remedies provided by the Act. f75 G, Hl A.V. Venkateswaran v. Ramehand Sobhraj Wadwani,\n\nA.I.R. 1961 S.C. 1506, referred to.\n\nC!vrL APPELLATE JURISDICTION: Civil Appeal No. 652 of 1964.\n\nAppeal from the judgment and order dated May 7, 1963 of B the Rajasthan High Court in D.B. Civil Misc. Writ Petition No. 157 of 1962.\n\nG.C. Kasliwal, Advocate-General for Rajasthan. K.K. Jain, for the appellants.\n\nM.D. Bhargava and B.D. Sharma, for the respondent. c\n\nThe Judgment of the Court was delivered by\n\nSikri, J. This appeal by certificate of fitness granted by the Ra jasthan High Court is directed against its judgment dated May 7, 1963, quashing the order of assessment dated March 5, 1962, made by the Sales Tax Officer, Jodhpur City, in so far as it levied J) sales tax on the turnover of Rs. 23,92,252.75 np.\n\nThe respondent, Mis Shiv Ratan G. Mohatta, which is a partnership firm having .its head office at Jodhpur, hereinafter referrd to as the assessee, claimed before the Sales Tax Officer that they were not liable to be assessed lo sales tax in respect of E the abve turnover because, firstly, the assessee was not a dealer within s.' 2(f) of the Rajasthan Sales Tax Act (Rajasthan Act XXIX of 1954) with respect to this turnover, and secondly, be cause the sales were in the course if import within Art. 186 (])(b) of the Constitut:on. Although the Sales Tax Officer set out the facts of the case relating to the secJnd ground, F he deemed it sufficient to assess this turnover on the ground that the assessee was a dealer within s. 2(f) of the Rajasthan Sales Tax Act, without adverting to the second ground. The facts on which the assessee had relied. upon to substantiate his second ground were these. The Zeal-Pak Cement Factory, Hyderabad (Pakistan), hereinafter called the Pakistan Factory, manufactured ce- G ment in Pakistan. The Pakistan Industrial Development Corporation, hereinafter called the Pakistan Corooration, entered into an agreement with Mis Milkhirain and Sos (P) Ltd., Bombay, for the export of cement manufactured in Pakistan to India. The State Trading Corporatian of India entered into an agreement with the said M/ s Milkhiram & Spns for the purchase of, inter alia, 35,000 H long tons of cement to be delivered to it F.O.R. Khokhropar in Pakistan, on the border of Rajasthan. The State Trading Corporation appointed .the assessee as its agent. broadly speaking, to look after the import and the sale of the imported cement. The modus operandi ad-0pted by the assessee for the sale of the cement was as follows. It would obtain from a buyer in Rajasthan an order under an agreement, a sample of which is on the record\n\nA The agreement fixed the price and the terms of supply. By one clause the assessee disclaimed any responsibility regarding delay in despatch and non-receipt of consignment or any loss, damage or shortage in transit due to any reason whatsoever. The agreement further provided that \"all claims for loss, damage or shortage, etc., during transit will lie with the carriers and our pay- B ments are not to be delayed on any such account whatsoever.\" It was further provided in the agreement that the dues were payable in advance in full, or 90% in advance and the balance within 15 days of billing plus sales tax and other local taxes. Clause 6 of the agreement is in the following terms: c\n\n\"A Post Card Loading Advice will be sent to you by the Factory as soon as the wagons are loaded in respect of your orders, and it will be your responsibility to arrange for unloading the consignment timely according to Railway Rules. Ourselves, and the suppliers will not be responsible for demurrage etc. on any account whatsoever. If the consignment reaches earlier than the Railway Receipt, it is the responsibility of buyer to arrange for and get the delivery timely against indemnity bond etc.\n\nAll the Railway Receipts etc. will be sent by registered post by the Suppliers in Pakistan.\".\n\nAfter this agreement had been entered into, the assessee would E send despatch instructions to the Pakistan Corporation. These instructions indicated the name of the buyer-consignee and the destination, and provided that the railway receipt and DI A should be sent by registered post to the consignee. These instructions were sent with a covering letter to the Pakistan Corporation requesting that these instructions be passed on to the Pakistan Factory for I' necessary action. The Pakistan Corporation would then forward these despatch instructions to the Zeal-Pak Cement Factory. Later, the Pakistan Factory would advise the consignee that they had \"consigned to the State Bank of India, Karachi, the particular quantity as per enclosed railway receipt and invoice.\" The State Bank of India, Karachi, would endorse the railway receipt in fa- 6 vour of the consignee and send it to him by post. The consignee would take delivery either by presentation of the railway receipt or by giving indemnity bond to the Station Master undertaking to deliver the railway receipt on its receipt.\n\nThe Sales Tax Officer did set out most of these facts and the H contentions of the assessee in the assessment order but disposed of the case with the following observations:\n\n\"All the above went to prove that the assessee was an Agent of the non-resident dealer for the supplies in the State. The Assessee was an importer and hence submitted an application to the Custom Authority for the same. It booked orders and issued sale bills. Under the terms of an agreement of appointment of Agent, sale was to be effected by the Agent. Again while obtaining 'Jrders from the A buye_rs under condition S Sales Tax was to be paid by the buyers to the assessee.\n\nThus to all intents and purposes the assessee is a dealer who is liable for payment of Sales Tax to the State. They have rightly collected this amount fr.om the buying dealers B and retained with them. This should come to the Government.\".\n\nWe can find no discussion in the order on the question raised by the assessee that the sales were made irl the course of import within Art. 286(l)(b) of the Constitution.\n\nThe assessee then filed a petition under art. 226 of the Constitution and raised two contentions before the High Court, namely, (I) that the Sales Tax Officer failed to consider the impact and the effect of Art. 286(l)(b) on the facts of the case, and (2) that\n\nthe Sales Tax Officer illegally held that the petitioner for all intents and purposes was a dealer liable to pay sales tax. The State D raised an objection to the maintainability of the petition on the ground that the petitioner should have availed of the alternative remedy bf appeal provided under the Rajasthan Sales Tax Act, but the High Court overruled this objection on the ground that \"the contention of the petitioner is that in view of Art. 286(l)(b) of the Constitution, the respondent had no jurisdiction to assess the E petitioner to pay the 'Sales tax on the sale of goods in the course of the import into the territory of India\", and that even if there was no total lack of jurisdiction in assessing the petitibner to pay sales tax, the principle enunciated in A.V. Venkateswarn v Ramchand Sobharaj Wadhwani (') applied, and it was a case which should not be dismissed in limine.\n\nThen the High Court proceeded to deal with the merits of the case. It first dealt with the question whether the petitioner was a dealer within the meaning of s. 2(f) of the Rajasthan Sales Tax Act, and came to the conclusion that the petitioner must be deemed to be a dealer within the said s. 2(t).\n\nThen it proceeded to deal with the question whether the sales. had taen place in the course of import. The High Court held that m the crrcumstances of the case these sales had not occasioned\n\nth~ movement of goods but it was te first sale made by M / s MilkhJTam and Sons to the State Tradmg Corporation which had oc- Il casioned the movement of goods. Seconidly, it held that in the circumstances of the case \"the property in goods after the deliyery had bee~ taken by the petitioner on behalf of the State Trad-\n\n1g Corporation passed t? the State Trading Corporation. and simultaneously to the ultimate buyers. Thus the property in the\n\n(1) [1962] l S.C.R. 753.\n\nA goods passed to the ultimate buyers in Rajasthan when the goods had not reached the territory of India and were in course of import. In view of the authority of their I .ordships of the Supreme Court fo J.V. <; okal and Co. (Private) Ltd. v. The Assistant Collector of Sales Tax (Inspection) & Others, ('), it must be takt:n that the sale took place when the goods were in the course of the B import and they should not be liable to the payment of the Sales\n\nTax by virtue of Art. 286(1)(b). \". In the result, the High Court quashed the order of assessment in so far as it sought to levy tax on the turnover in dispute. The Sales Tax Officer, Jodhpur, and the State of Rajasthan having obtained certificate of fitness from C the High Court filed this appeal.\n\nThe learned Advocate-General has raised two points before us: First, on the facts of this case the High Court should have refused to entertain the petition, and secondly, that it has not been established that the cement was sold in the course of import with- D in Art. 286(l)(b).\n\nRegarding the first point, he urges that an appeal lay against the order of the Sales Tax Officer; no question of the validity of the Sales Tax Act was involved and the taxability of the turnover depended on where the property passed in each consignment.\n\nE This involved consideration of various facts and, according to him. the crucial facts had not been brought on the record by the assessee on whom lay the onus to establish that the sales were in the course of import. He says that the assessee should have proved that each railway receipt was endorsed by the State Bank of India, Karachi, to the buyer before each consignment crossed the frontier.\n\nF We are of the opinion that the High Court should have declined to entertain the petition. No exceptional circuinstances exist in this case to warrant the exercise of the extraordinary jurisdiction under Art. 226. It was not the object of art. 226 to convert High Courts into original or appellate assessing authorities whenever an G assessee chose to attack an assessment order on the ground that a sale was made in. the course of import and therefore exempt from tax. It was urged on behalf of the assessee that they would have had to deposit sales tax, while filing_ an appeal. Even if this is so, does this mean that in every case in which the assessee has to deposit sales tax, he can bypass the remedies provided by the Sales H Tax Act? Surely not. There must be something mpre in a cae to warrant the entertainment of a petition under art. 226, something going to the root of the jurisdiction of the Sales Tax Officer, something to show that it would be a case of paipable injustice to the assessee to force him to adopt the remedies provided by the Act.\n\nBut as the High Court chose to entertain the petition, we are not inclined to dismiss the petition on this ground at this stage.\n\n] 1960] 2 S.C.R. 8•12.\n\nRegarding the second point, the learned Advocate-General A .argues that the onus was on the assessee to bring his case within Art. 286(1)(b) of the Constitution in respect of the sales to the various consignees. He says that there is no evidence on record as to\n\nwhen, the State Bank of India endorsed the railway receipt in favour of the ultimate buyer in respect of each consignment and\n\nw.ithout this evidence it cannot be said that the title to the goods B passed to the ultimate buyer at Khokhropar or in the course of import. He further urges that it would have to be investigated in each case as to when the State Bank endorsed the railway receipt and when the goods crossed the customs barrier. He says that it is not contested that the ultimate buyer took delivery of goods without producing the railway receipt by virtue of special arrangements C entered into with the railway, and according to him, it is only when the delivery was taken by the buyer in Rajasthan that the title passed. By that time, accodring to him, the course of import had ceased. ·\n\nWe do not think it necessary to consider the various argu- D ments addressed by the learned Advocate-General or the soundness of the view of the High Court on this point, because we are of the opinion that the High Court should not have gone into this question on the facts of this case. The Sales Tax Officer had not dealt with the question at all, and it is not the function of the High Court under art. 226, in taxing matters, to constitute itself E into an original authority or an appellate authority to' determine questions relating to the taxability of a particular turnover. The proper order in the circumstances of this case would have been to quash the order of assessment and send the case back to the Sales Tax Officer to dispose of it according to law. Under the Rajasthan Sales Tax Act, and other Sales Tax Acts, the facts have to be F found by the assessing authorities. If any facts are not found by the Sales Tax Officer, they would be found by the appellate authority, and it is not the function of a High Court to find facts. The High Court should not encourage the tendency on the part of the assessees to rush to the High Court after an assessment order is made. It is only in very exceptional circumstances that the High G Court should entertain petitions under art. 226 of the Constitution in respect of taxing matters after an assessment order has been made. It is true, as said by this Court in A. V. Venkateswarn v.\n\nRamchand Sobharaj Wadhwani(') that it would not be desirable to lay down inflexible rules which should be applied with rigidity H in every case, but even so when the question of taxability depends upon a precise determination .of facts and some of the facts are in dispute or missing, the High Court should decline to decide such questions. It is true that at times the assessee alleges some additional facts not found in the assessment order and the State, after a fresh investigation, admits these facts, but in a petition under art.\n\n11) [1962] l S.G, R. 753.\n\nA 226 where the prayer is for quashing an assessment order, the High Court is necessarily confined to the facts as stated in the order or appearing on the record of the case.\n\nIn this case, as already indicated, we have come to the conclusion that the High Court should not have decided disputed\n\n8 questions of fact, but should merely have quashed the assessment order on the ground that the Sales Tax Officer had not dealt with the question raised before him and remanded the case. Accordingly, we allow the appeal, set aside the order of the High Court, quash the assessment order in so far as it relates to the turnover of Rs. 23,92,252.75 np, and remit the case to the Sales Tax Officer\n\n0 to decide the case in accordance with law. He will find all the facts necessary for the determination of the question and come to an independent conclusion untrammelled by the views expressed by the High Court. We may make it clear that we are not expressing any view whethr the finding of the High Court that the property in the goods passed simultaneously at Khokhropar ttJ D the State Trading Corporation and the ultimate buyer is correct or not. There would be no order as to costs in this appeal.\n\nAppeal allowed.\n\nli'B(D)2SCI-7", "total_entities": 65, "entities": [{"text": "SALES TAX OFFICER, JODHPUR AND ANOTHER", "label": "PETITIONER", "start_char": 0, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "SALES TAX OFFICER, JODHPUR AND ANOTHER", "offset_not_found": false}}, {"text": "S. SHIV RATAN G. MOHATTA February", "label": "RESPONDENT", "start_char": 42, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "M/S. SHIV RATAN G. MOHATTA", "offset_not_found": false}}, {"text": "IP.B. 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Mohatta, which is a partnership firm having .its head office at Jodhpur, hereinafter referrd to as the assessee, claimed before the Sales Tax Officer that they were not liable to be assessed lo sales tax in respect of E the abve turnover because, firstly, the assessee was not a dealer within s.' 2(f) of the Rajasthan Sales Tax Act (Rajasthan Act XXIX of 1954) with respect to this turnover, and secondly, be cause the sales were in the course if import within Art."}}, {"text": "Rajasthan Act XXIX of 1954", "label": "STATUTE", "start_char": 4520, "end_char": 4546, "source": "regex", "metadata": {}}, {"text": "Art. 186", "label": "PROVISION", "start_char": 4648, "end_char": 4656, "source": "regex", "metadata": {"linked_statute_text": "Rajasthan Act XXIX of 1954", "statute": "Rajasthan Act XXIX of 1954"}}, {"text": "s. 2(f)", "label": "PROVISION", "start_char": 4879, "end_char": 4886, "source": "regex", "metadata": {"linked_statute_text": "Rajasthan Act XXIX of 1954", "statute": "Rajasthan Act XXIX of 1954"}}, {"text": "Zeal-Pak Cement Factory, Hyderabad (Pakistan)", "label": "ORG", "start_char": 5058, "end_char": 5103, "source": "ner", "metadata": {"in_sentence": "The Zeal-Pak Cement Factory, Hyderabad (Pakistan), hereinafter called the Pakistan Factory, manufactured ce- G ment in Pakistan."}}, {"text": "Pakistan", "label": "GPE", "start_char": 5173, "end_char": 5181, "source": "ner", "metadata": {"in_sentence": "The Zeal-Pak Cement Factory, Hyderabad (Pakistan), hereinafter called the Pakistan Factory, manufactured ce- G ment in Pakistan."}}, {"text": "Pakistan Industrial Development Corporation", "label": "ORG", "start_char": 5187, "end_char": 5230, "source": "ner", "metadata": {"in_sentence": "The Pakistan Industrial Development Corporation, hereinafter called the Pakistan Corooration, entered into an agreement with Mis Milkhirain and Sos (P) Ltd., Bombay, for the export of cement manufactured in Pakistan to India."}}, {"text": "Mis Milkhirain and Sos (P) Ltd., Bombay", "label": "ORG", "start_char": 5308, "end_char": 5347, "source": "ner", "metadata": {"in_sentence": "The Pakistan Industrial Development Corporation, hereinafter called the Pakistan Corooration, entered into an agreement with Mis Milkhirain and Sos (P) Ltd., Bombay, for the export of cement manufactured in Pakistan to India."}}, {"text": "State Trading Corporatian of India", "label": "ORG", "start_char": 5413, "end_char": 5447, "source": "ner", "metadata": {"in_sentence": "The State Trading Corporatian of India entered into an agreement with the said M/ s Milkhiram & Spns for the purchase of, inter alia, 35,000 H long tons of cement to be delivered to it F.O.R. Khokhropar in Pakistan, on the border of Rajasthan."}}, {"text": "Milkhiram & Spns", "label": "ORG", "start_char": 5493, "end_char": 5509, "source": "ner", "metadata": {"in_sentence": "The State Trading Corporatian of India entered into an agreement with the said M/ s Milkhiram & Spns for the purchase of, inter alia, 35,000 H long tons of cement to be delivered to it F.O.R. Khokhropar in Pakistan, on the border of Rajasthan."}}, {"text": "Rajasthan", "label": "GPE", "start_char": 5642, "end_char": 5651, "source": "ner", "metadata": {"in_sentence": "The State Trading Corporatian of India entered into an agreement with the said M/ s Milkhiram & Spns for the purchase of, inter alia, 35,000 H long tons of cement to be delivered to it F.O.R. Khokhropar in Pakistan, on the border of Rajasthan."}}, {"text": "State Trading Corporation", "label": "ORG", "start_char": 5657, "end_char": 5682, "source": "ner", "metadata": {"in_sentence": "The State Trading Corporation appointed .the assessee as its agent."}}, {"text": "Clause 6", "label": "PROVISION", "start_char": 6629, "end_char": 6637, "source": "regex", "metadata": {"statute": null}}, {"text": "Pakistan Corporation", "label": "ORG", "start_char": 7379, "end_char": 7399, "source": "ner", "metadata": {"in_sentence": "After this agreement had been entered into, the assessee would E send despatch instructions to the Pakistan Corporation."}}, {"text": "Zeal-Pak Cement Factory", "label": "ORG", "start_char": 7838, "end_char": 7861, "source": "ner", "metadata": {"in_sentence": "The Pakistan Corporation would then forward these despatch instructions to the Zeal-Pak Cement Factory."}}, {"text": "Pakistan Factory", "label": "ORG", "start_char": 7874, "end_char": 7890, "source": "ner", "metadata": {"in_sentence": "Later, the Pakistan Factory would advise the consignee that they had \"consigned to the State Bank of India, Karachi, the particular quantity as per enclosed railway receipt and invoice.\""}}, {"text": "State Bank of India, Karachi", "label": "ORG", "start_char": 7950, "end_char": 7978, "source": "ner", "metadata": {"in_sentence": "Later, the Pakistan Factory would advise the consignee that they had \"consigned to the State Bank of India, Karachi, the particular quantity as per enclosed railway receipt and invoice.\""}}, {"text": "Art. 286(l)(b)", "label": "PROVISION", "start_char": 9397, "end_char": 9411, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 226", "label": "PROVISION", "start_char": 9475, "end_char": 9483, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 286(l)(b)", "label": "PROVISION", "start_char": 9641, "end_char": 9655, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 286(l)(b)", "label": "PROVISION", "start_char": 10141, "end_char": 10155, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(f)", "label": "PROVISION", "start_char": 10749, "end_char": 10756, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(t)", "label": "PROVISION", "start_char": 10882, "end_char": 10889, "source": "regex", "metadata": {"statute": null}}, {"text": "MilkhJTam and Sons", "label": "ORG", "start_char": 11145, "end_char": 11163, "source": "ner", "metadata": {"in_sentence": "The High Court held that m the crrcumstances of the case these sales had not occasioned\n\nth~ movement of goods but it was te first sale made by M / s MilkhJTam and Sons to the State Tradmg Corporation which had oc- Il casioned the movement of goods."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 11746, "end_char": 11759, "source": "ner", "metadata": {"in_sentence": "In view of the authority of their I .ordships of the Supreme Court fo J.V. <; okal and Co. (Private) Ltd. v. The Assistant Collector of Sales Tax (Inspection) & Others, ('), it must be takt:n that the sale took place when the goods were in the course of the B import and they should not be liable to the payment of the Sales\n\nTax by virtue of Art."}}, {"text": "Art. 286(1)(b)", "label": "PROVISION", "start_char": 12036, "end_char": 12050, "source": "regex", "metadata": {"statute": null}}, {"text": "Jodhpur", "label": "GPE", "start_char": 12203, "end_char": 12210, "source": "ner", "metadata": {"in_sentence": "The Sales Tax Officer, Jodhpur, and the State of Rajasthan having obtained certificate of fitness from C the High Court filed this appeal."}}, {"text": "State of Rajasthan", "label": "ORG", "start_char": 12220, "end_char": 12238, "source": "ner", "metadata": {"in_sentence": "The Sales Tax Officer, Jodhpur, and the State of Rajasthan having obtained certificate of fitness from C the High Court filed this appeal."}}, {"text": "Art. 286(l)(b)", "label": "PROVISION", "start_char": 12584, "end_char": 12598, "source": "regex", "metadata": {"statute": null}}, {"text": "State Bank of India", "label": "ORG", "start_char": 13166, "end_char": 13185, "source": "ner", "metadata": {"in_sentence": "He says that the assessee should have proved that each railway receipt was endorsed by the State Bank of India, Karachi, to the buyer before each consignment crossed the frontier."}}, {"text": "Karachi", "label": "GPE", "start_char": 13187, "end_char": 13194, "source": "ner", "metadata": {"in_sentence": "He says that the assessee should have proved that each railway receipt was endorsed by the State Bank of India, Karachi, to the buyer before each consignment crossed the frontier."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 13461, "end_char": 13469, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 226", "label": "PROVISION", "start_char": 13496, "end_char": 13504, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 226", "label": "PROVISION", "start_char": 14099, "end_char": 14107, "source": "regex", "metadata": {"statute": null}}, {"text": "1960] 2 S.C.R. 8", "label": "CASE_CITATION", "start_char": 14452, "end_char": 14468, "source": "regex", "metadata": {}}, {"text": "Art. 286(1)(b)", "label": "PROVISION", "start_char": 14600, "end_char": 14614, "source": "regex", "metadata": {"statute": null}}, {"text": "Khokhropar", "label": "GPE", "start_char": 14967, "end_char": 14977, "source": "ner", "metadata": {"in_sentence": "He says that there is no evidence on record as to\n\nwhen, the State Bank of India endorsed the railway receipt in favour of the ultimate buyer in respect of each consignment and\n\nw.ithout this evidence it cannot be said that the title to the goods B passed to the ultimate buyer at Khokhropar or in the course of import."}}, {"text": "art. 226", "label": "PROVISION", "start_char": 15941, "end_char": 15949, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 16351, "end_char": 16364, "source": "regex", "metadata": {}}, {"text": "art. 226", "label": "PROVISION", "start_char": 16824, "end_char": 16832, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act", "statute": "Sales Tax Act"}}, {"text": "art.\n\n11", "label": "PROVISION", "start_char": 17514, "end_char": 17522, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_743_759_EN", "year": 1965, "text": "PRABHAKAR RAO N. MAWLE v.\n\nSTATE OF ANDHRA PRADESH\n\nApril 9, 1965\n\n[K. SUBBA RAO, K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH\n\nAND s. M. S!KRI, JJ.]\n\nMadras Vexatious Litigation (Prevention) Act, (Act 8 of 1949) s. 2(1) and States Reorganisation Act (37 of 1956), ss. 65, 119 and 121-\n\nApp!icability of Madras Act in Telangana area of Andhra Pradesh\n\nState.\n\nBy s. 2(1) of the Madras Vexatious Litigation (Prevention) Act 1949, the High Court of Madras was competent to issue an order against any person that no proceedings shall be instituted by him in any court (i) in the Presidency-town without the leave of the High Court, and (ii) 'elsewhere without the leave of the District and Sessions Judge. On the application of the Advocate-General of Andhra Pradesh the High Court of Andhra Pradesh ordered that no proceeding should be instituted by the appellant in the City of Hyderabad without leave of the High Court, in the City of Secunderabad without leave of the Chief City Civil Judge and elsewhere, without leave of the concerned District and Sessions Judge.\n\nIn his app2al to this Court, the appellant contended that: (i) the High Court had no jurisdiction to take action under the Act as its provisions were not extended to the Telangana area of the State, which formed part of the former State of Hyderabad; and (ii) the Act was unconstitutional because it prevented some citizens from approaching the Court, which everyone is entitled to in a State governed by the rule of law.\n\nHELD: (i) (Per K. Subba Rao, K. N. Wanchoo, M. Hidayatullah and S. M. Sikri, JJ.) The High Court was in error in holding that the Act merely created a procedural jurisdiction to put persons who indulge habitually in vexatious litigation under a procedural restraint, in the former High Court of Madras, which jurisdiction, on its division into the two High Courts of Madras and Andhra Pradesh inhered in both the High Courts and continued to inhere in the High Court of Andhra Pradesh even for the purposes of those areas to which the Act had not been extended. [752 D-F] The Act was passed by the Madras Provincial Legislature, and conferred jurisdiction upon the Madras High Court to deal with habitual litigants indul, qing in vexatious liti({ation. It Vv'as not an inherent jurisdiction of the Madras High Court. By ss. 30 and 53 of the Andhra State Act, 1953, the Vexatious Litigation (Prevention) Act continued to be in force in the Andhra State, and the Andhra High Court possessed the same jurisdiction as the former Madras High Court.\n\nBut the Act is unworkable in the State of Andhra Pradesh which is formed under the States Reorganisation Act, 1956, by adding the Telangana area of the former Hyderabad State to the State of Andhra; and s. 65 of the States Reorganisation Act does not alter the position. (753-H]\n\n744 SUPREME COURT REPoRTS\n\n[1965) 3 B.C.R.\n\n' _All laws are i_ntended to operate territorially and no Provindal A.\n\nLegislature !n India, possesses extra-tei:ritorial jurisdiction. What the Madras Legislature enacted was to operate in its own territorv and it said so in the Vexatious Litigation (Prevention) Act. ln its operative part also, the order under the Act was to be made with territoria_I distinction between the Presidency town and the rest of the Presidency of Madras. The Aat vested a jurisdiction in the High Court to deal with a particular type of litigant, but the Act made the B High Court deal with the matter territorially and if new territories were to be governed by it, it had to be extended to the new territories and till so extended, the Act can only operate within the old territories. Under s .. 119 of the States Reorganisation Act no law of one Of the amalgamating States is to be extended to the area of the other amalgamating States, except by a competent legislative or other competent authority, and further, the law shall be constTU.d as res- C tricted to the .territories within each State immediately before the reorganisation. Since the Act has not been extended to the Telangana area, 'the application of the Act in that area is made impossible by s. 119, and it cannot be extended by judicial construction. No doubt, the Court possesses a power, under s. 121 of the States Reorganisation Act, to construe laws by adapting them in such a manner. as to facilitate their application to the newly formed State, qut the power is of adaptation and oot legislation. An increase in the territories in which D an Act is to apply is dependent on legislation such as is contemplated by s. 119. [753 F-H; 754 A-CJ\n\nMoreover, there being no 'Presidency town in the State of Andhra Pradesh, s. 2(1)(i) of the Act is inapplicable in the State of Andhra Pradesh. The mention of the Presidency town in the sul>-section was not with a view to indicate the seat of the High Court, but because E the Madras High Court, possessed original jurisdiction in the Presidency town. Therefore, the distinction between the City of Hyderabad and other parts of Andhra Pradesh, drawn by the High Court as if the City of Hyderabad was a Presidency town, was an artificial distinction which should not have been drawn by the High Court.\n\nSection 2(l)(ii} is also inapplicable because, the contention that the entire State may be taken to be governed by that sul>-clause would lead to the strange result that the District and Sessions Judge would decide whether a particular litigant should be allowed to move the High Court in appeal, revision or in an original proceeding. [754 E-HJ\n\nPer Shah, J. (Dissenting): Parliament having by the Andhra State Act invested the High Court of Andhra with authority to exercise all Jurisdiction which the High Court of Madras possessed, within the territories of the State of Andhra, and thereafter, having by s. 65(l)(a) of the States Reorganisation Act extended the exercise of that authority over the entire territory of Andhra Pradesh, it would be impossible to accept the argument that in respect of the jurisdiction conferred by the VexatiouS Litigation (Prevention) Act, the High Court of Andhra Pradesh was incompetent to pass the order which It did against the appellant. [759 A-CJ\n\nThe Andhra High Court was a successor of the Madras High Court and exercised all the powers and adminiStered the same law which the latter exercised in the territories comprised in the Andhra State. Since Parliament expressly provided by s. 55 of the Andhra State Act, that a court may ctrue a law which it hs to enforce, with such alterations not affectmg the substance as may be necess~\n\nor proper to adapt it to the matter before the cow:t. te expression \"Presidency town\" must, in the context of the constituti?n of !' separate Andhra High Court, mean the town of the State m which the\n\nPRABHAKAR RAO V. ANDHRA PRADESH 745\n\nHigh Court was located. If it be granted that the High Court of Andhra had jurisdiction to pass orders under the Vexatious Litigation (Prevention) Act, it would be difficult to hold that s. 119 of the States Reorganisation Act restricts the exercise of the power by the High Court of Andhra Pradesh to prevent a vexatious litigant from instituting proceedings in and from certain areas of the Andhra Pradesh and not elsewhere. Section 65(1) of the States 'Reorganisation\n\nAct which must be read harmoniously with s. 119 authorises the High Court of Andhra Pradesh to exercise all jurisdiction, which the High Court of Andhra could exercise, over all the territories transferred to the State of Andhra Pradesh from the existing State of Hyderabad.\n\nThe Vexatious Litigation (Prevention) Act, does not require that the person to be restrained must be residing. in or have a domicile within the jurisdiction of the Court, nor has the order contemplated to b::: passed. any direct territorial operation. It is a personal direction, which imIXJses restrictions upon the person restrained. Once the High Court pronounces an order, it may be removed in appropriate cases only by the High Court, where the proceeding is to be instituted in any court in the town in which the High Court is located, and elsewhere, by order of the District and Sessions Court; and so, there is no conflict of jurisdiction between the High Court and the District Court. [756 D-H] z\n\n(ii) (By Full Court): The Act is not unconstitutional.\n\n'I\"he litigants who a:re prevented from approaching the court without proper sanction are persons who habitually file vexatious actions. Even they are not deprived of their right to go to a court in genuine and bona fide actions, but the Act only creates a check. The E object of the Act is to promote public good, because, it cannot be claimed that it is an inviolable right of any citizen to bring vexatious actions without control.\n\nCiv1L APPELLATE JURISDICTION /ORIGINAL JURISDICTION: Civil Appeal No. 900 of 1963.\n\nf' Appeal by special leave from the judgment and order dated\n\nApril 21. 1961 of the Andhra Pradesh High Court in C.M.P. No. 239 of 1960.\n\nWITH\n\nWrit Petition No. 146 of 1961.\n\nPetition under Art. 32 of the Constitution of India for the enforcement of the fundamental rights.\n\nAND\n\nCivil Miscellaneous Petition No. 186 of 1962.\n\nAppeal against the order of the Registrar dated November 21, 1961 refus; ng to receive the petitioner's application for refund of Court-fees.\n\nThe appellant appeared in person.\n\nK. R. Chaudhuri and B. R. G. K. Achar, for the respondent (in C. A. No. 900/63 and W.P. No. 146/ 196]).\n\nSUPREME\n\nCOURT\n\nREPO&TS [1965] S s.c.n.\n\nThe Judgment of Subba Rao, Wanchoo, Hidayatullah and A Sikri, JJ. was delivered by Hidayatlillah, J. Shah, J. delivered a separate Opia.ion.\n\nHidayatullah, J .. On January 11, 1960, the Advocate General applied to the High Court of Andhra Pradesh, Hyderabad for action against the appellant Prabhakar Rao H. Mawle under s. 2 B of the Vexatious Litigation (Prevention) Act 1949 (Madras Act VlII of 1949), on the allegation that Mawle had been \"habitually\" and without any reasonable ground instituting \"vexatious proceedings\" in the courts within the cities of Hyderabad and Secunderabad and also in. the High Court and appearing in the cases in person; that he was responsible for a considerable amount C of litigation or, in other words, that he was a vexatious and habitual litigant. In support of the petition for the invocation of the punitive provisions of the Act, the Advocate-General referred to the following cases: -\n\n(i) In C.R.P. No. 1765/58 Mawle described the judgment D of the lower court as: \" .................. shocking to the sense of justice, a grave dereliction of duty, flagrant abuse of fundamental principles of law and the natural justice, full with errors patent on the face, showing a gross manifest injustice done through the tyrannical arbitrary acts.\"\n\nIt was stated that Mawle apologised to the High Court to escape proceedings for contempt of court.\n\n(ii) He filed a writ petition No. 1369/18 after the above Civil Revision Petition was dismissed and then preferred an appeal CCCA 42/59.\n\n(iii) He filed a stay petWon against an intended execution before steps were taken ari.d when the petition was dismissed he filed an appeal C.M.A. 86 / 59 and obtained stay.\n\n(iv) He filed an appeal against the dismissal of the writ G petition 1369 I 58.\n\nHe was thus said to have asked for five remedies in one suit (0.S. 200 of 1958).\n\n(v) In an appeal filed on 3-6-1959 he did not pay court fee of Rs. 995 as stamps were not available undertaking\n\n'.H to pay the balance which he did not pay.\n\n(vi) In S. R. 38516 and S.C.C.M.P. Mawle stated that as he had appeared in person-\n\n\"without any weightage to his submissions though of law, for in the ends of justice, as against the professional . privileges claimed by both these veteran advocates (Mr. 0. V. Subbanayadu and\n\n< '\n\nPRABHAKAR RAO v. ANDHRA PRADESH (Hi.dayatullah, J.) 747\n\nMr. Hari Narayanalal) even though they had taken the role of a party, sole witnesses, swearing false affidav; ts ............ \".\n\n(vii) In S.R. 12409/59 against decree in O.S. 109/1958,\n\nthough himself the sole defendant, Mawle caused to be preferred an appeal in forma pauperis by his wie and children, getting the judgments under appeal pnvately printed and cerflying them as true.\n\n(viii) C.R.P. No. 1094/ 59 against the judgment in suit No. 198/2 dismissed against his tenant he filed a revision petition which was dismissed in limini.\n\n(ix) C.R.P. No. 988/1959 filed against I.A. 230/58 in 0.S.\n\n99/2 of 1957 of the City Civil Court, Hyderabad was dismissed in limini.\n\n(x) He has filed S.R. 31845 I 59 as L.P.A. against an order\n\nrefus'ng to review C.R.P. against a Small Cause Suit and S.R. No. 27605 / 59 as a L.P.A. against an order in a petition refusing to condone the delay in filing a review petition in a C.R.P.\n\n(xi) C.R.P. 954/ 1959 filed against an order in L.R. petition in a Small Cause Suit, originally attempted to be filed as an appeal, C.M.P. 5518 filed and stay ordered on condition that Mawle should deposit the decretal amount. He then withdrew the C.M.P.\n\n(xii) Several crim'nal matters in High Court. Complaint in Cr. App. 406/58 and Cr!. R.C. 506/59.\n\n(xiii) C.M.P. 1858 / 57 for taking action against the respond- F ent for alleged contempt of court.\n\n(xiv) S.R. No. 43198/59, a L.P. Appeal.\n\n1he Advocate General claimed that though the Act was not extended to the area covered by the former Hyderabad State, it must be treated as the law in force there by reason of the States Re- G organisat'on Act, 1956.\n\nMawle was heard on notice and, as was to be expected from a litigant of his sort, filed a fairly long statement in reply denying each accusation and explaining his conduct. He questioned the jurisdiction of the High Court of Andhra Pradesh to take action B under the Act as its provisions were not extended to the .area . comprised in the former State of Hyderabad. He challenged the Act as ultra vires and unconstitutional on the ground that it abridged the right of citizens to seek redress in a court of law. He stated that he was a businessman and a landlord and owned considerable properties in the city of Hyderabad and other cities in the District and the State. He produced a certificate from the District Magistrate. He explained that owing to unpleasant experience he had\n\nLIP(D)5SCI-9\n\nus SUPJ!BKll COUBT BllfOllTS\n\n[1965) 3 8.C.B.\n\nto take away his work from advocates and since 1952 he had start- A ed coaducting his own cases. He alleged that he had to recover a couple of lakhs of rupees from his clients/tenants etc. and had, therefore, to file a large number of cases. He attempted an Ci(· planation of the cases to whicll the Advocate Geaeral had referred in his petition. '\n\nThe High Court by its judgment dated April 21, 1961, now nmjer appeal, held that the Act was both constitutional and intra vires, that the High Court had jurisdiction to make the order and that action under the Act was called for. The High Court ordered that no proceeding, civil or criminal, should be instituted by Mawle\n\nin the City of Hyderabad without the leave of the High Court, in c the city of Secunderabad, without the leave of the Chief City Civil Judge and elsewhere without the leave of the District and Sessions Judge concerned. A copy of the order of the High Court was published in the Gazette of Andhra Pradesh as required by the Act.\n\nMawle sought a certificate under Articles 132, 133, or 134 of the Constitution but the certificate was refused on the ground that no D substantial question of law as to the interpretation of the Constitution or otherwise was involved. The petitioner then applied for and obtained special leave from this Court and filed the present appeal.\n\nThe Act with which we are concerned, though a copy substantially of 16 and 17 Viet. Ch. 30 (now replaced by section S 1 of E the Supreme Court of Judicature Consolidation Act, 1925: 15 & l6 Geo V c. 49) is perhaps the only one of its kind in India. Its provisions are extremely brief and they may be read here:\n\n\"l. Short title, extent and commencement.\n\n(1) This Act may be called the Vexatious Litigation (Prevent; on) Act, 1949.\n\n(2) It extends to the whole of the State of Madras.\n\n(3) It shall come into force at once.\n\n2. Leave of court necessary for vexatious litigant to institute proceedings.\n\n(1) If, on an application made by the Advocate-General, the High Court is satisfied that any person has habitually and without any reasonable ground instituted vexatious proceedings, civil or criminal, in any Court or Courts, the High Court may, after giving that person an opportunity of being heard, H order that no proceedings, civil or criminal, shall be ilistituted by him in any Court-\n\n(i) in the Presidency-town, without the leave of the High Court; and\n\n(ii) elsewhere, without the leave of the District and\n\nSesSions Judge. ·\n\n. E\n\nPRABHAKAR RAO v. ANDHRA PRADESH (Hidayafullah, J.) 719\n\n(2) If it a(ipcars to the High Court that the person\n\nagainst whom an application is made under subsection (!). is unable, on account of poverty, to engage a pleader, the High Court may engag~ a pleader to appear for h'm.\n\nExplanation-For the purpose of this section 'pleader' has the same meaninl, l as in section 2, clause (I~ of the Code of Civil Procedure, 1908.\n\n3. Leave to be granted only if prima facie ground exists.\n\nThe leave referred to in section 2, subsect'on (I), shall not be given in respect of any proceedings unless the High Court or, as the case may be, the District and Sessions Judge, is satisfied that there is prima facie ground for such proceed 'ngs.\n\n4. Proceedings instituted without leave to be dismissed.\n\nAny proceedings instituted by a person against whom an order under section 2. sub-section (!), has been made, without obtain'ng the leave referred to in that sub-section shall be dismissed:\n\nProvided that this section shall not apply to any proceedings instituted for the purpose of obtaining such leave.\n\n(5) Publicat'on of orders .\n\nA copy of every order made under section 2, sub-section (!), shall be published in the Fort St. George Gazette.\"\n\nThe High Court of Andhra Pradesh has held that it enbys all the jurisdiction of the former High Court of Madras and thus the provisions of the Act create a jurisd'ction in the High Court capable of being exercised in Telangana area even though the Act as such, has not been extended to this part of the territorv of the State. The High Court also holds that the Act is perfectly valid.\n\nIn this appeal in addit'on to que£tioning the order on the above ground and also merits the appellant contends that the .o Madras Act itself was invalid inasmuch as it was not covered by any Entry in List II or III of the Government of India Act, 1935 and had not received the assent of. the Governor-General. This argument is without substance. The Act had received the assent of the Governor-General 11nd the subject of the legislation was covered by Entries 2 of List II and 2 and 4 of List III of the Govern- R ment of India Act, 193~. The next argument of the appellant before us is that this Act is unconstitut'ona.l because it prevents some citizens from approaching the court and obtaining relief to which everyone is entitled in a State governed by Rule of Law. This argument really invokes Art. 19 and Art. 14. The latter Article is invoked because the Act, according to the appellant. seeks to create an unreasonable distinction beween litigant and litigant. This ar.u\n\nment is also not acceptable to us because the litigants who are to\n\n750 BUl'l\\JWE\n\nOOUBT RllPORTS [l 9611] 3 S.11.B.\n\nbe prevented from approach'ng the court, without the sanction of\n\n/I. the High Court etc., are in a class by themselves. They are describ ed in the Act as persons who 'habitually' and 'without reasonable cause' file vexatious actions, civil or criminal. The Act is not in tended to deprive such a person of his right to go to a court. It only creates a check so that the court may examine the bona {ides of any claim before the opposite party is harassed. A similar Act,. B passed in England, has been applied in several cases to prevent an abuse of the process of court. In its object the Act promotes public good because it cannot be claimed that it is an inviolable right of ; my citizen to bring vexatious actions without control, either leg islative or administrat've. The Act subserves public interest and the restraint which it creates, is designed to promote public good. The (j: Act does not prevent a person declared to be habitual litigant from bringing genuine and bona fide actions. It only seeks to cut short attempts to be vexatious. In our judgment, the Act cannot be described as unconstitutional or offending either Art. 19 or Art. 14.\n\nThe next contention of the appellant is that the Act has not ]): been extended to the area of the former State of Hyderabad and the High Court cannot exercise jurisdiction in that area. This con tention merits close scrutiny. The High Court has. given a history of the evolution of the State and of the High Court of Andhra Pra desh. It is common knowledge that the High Court of Madras was founded by Letters Patent of 1865 and exercised all original, g appellate and other jurisdictions conferred by that Letters Patent.\n\nThe Act, which was passed by the Madras Provincial Legislature in 1949 conferred jurisdict'on upon the Madras High Court to deal with cases of habitual litigants who were persistently filing vexatious actions and were guilty of an abuse of the process of court.\n\nThis jurisdiction belonged to the High Court of Madras by virtue r\n\nof the Act and was not an inherent jurisdiction whether as a Court of Record. or otherwise.\n\nWhen the State of Andhra was formed in 1953 by the Andhra State Act of 1953, the High Court of Madras ceased to exercise jurisdiction over the territory of the State of Andh'ra. This jurisdic- G tion was then to be exercised by the High Court of Andhra from a date to be appointed by the President. The jurisdiction of the Andhra High Court was to be the same as that of the Madras High Court. Section 30 of the Andhra State Act read as follows: -\n\n\"30. Jurisdiction of Andhra High Court. ][ The High Court of Andhra shall have, in respect of ti)e territories for the time being included in the State of Andhra, all such original, appellate and other jurisdiction as. under the law in force immediately before the prescribed day,. is exercisable in respect of the said territories or any part thereof by the High. Court at Madras.\"\n\nPRABHAKAR BAO v. ANDHRA PRADESH (HidayatuUah, J.) 7:&1\n\nBy virtue of this section the new High Court possessed the same powers and jurisdiction as the original Madras High Court in i_ts territory. But by s. 53 of the Andhra Act no change was effected in the territorial extent of the laws and references in all laws to the State of Madras were to be adapted to refer to the new State in its application to the new State of Andhra. In other words, the Act continued to be an Act in force in the Andhra State and the Andhra Hicrh Court possessed the same jurisdiction as the former Madras Hih Court. So far no difficulty can be seen, but it is obvious thn1 the original jurisdiction of the High Court of Madras in the Pre~! dency Town could not be exercised at Guotur and did not follow the High Court.\n\nThe next change came in 1956 by the States Reorganisation Act, !\"956. By that Act certain territor'es were amalgamated with the State of Andhra and prominent among those territories was the former Hyderabad State which for convenience may be referred to here as 'the Tefangana Area'. The city of Hyderabad and the city of Secunderabad are in that area. The States Reorganisation Act, 1956 contained a special prov'sion to limit the territorial extent of the laws in force in the different areas which were combined to form the State of Andhra Pradesh. Section 119 of the States Reorganisation Act provided as follows: -\n\n\" 119. Territorial extent of laws.\n\nThe provisions of Part II shall not be deemed to have effect ed any change in the territories to which any law in force immediately before the appo; nted day extends or applies, and territorial reference in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day.\"\n\nThe appellant relies upon this provision to state that the area of operation of the Act can only be the former territories of the State G of Andhra and the Act is not applicable in the terr; tory comprised in the Telangana Area. The other side contends that by virtue of s. 65 the High Court of Andhra Pradesh acquires all the jurisdiction of the High Court of the State of Andhra and therefore it acquires the jur'sdiction invested by the Act in the former Andhra High Court. Section 65 of the States Reorganisation Act 1956 H reads as follows: -\n\n\"65. High Court of Andhra Pradesh. (]) As from the appointed day,-\n\nla) the jurisdiction of the High Court of the existing\n\nState of Andhra shall extend to the whole of the terdories transferred to that State from the existing State of Hyderabad;\n\n752 eUPREME\n\nCOURT\n\nRF.POP.T8 (1965]\n\n~ S.C, R\n\n(b) the said High Court shall be known as the High A Court of Andhra Pradesh; and • • • •\n\nThe question that arises is whether the application of the Act in the Telangana area is made impossible by s. 119 of the Act of\n\nt,956 or depends upon s. 65 of that Act. If the Act under which B act'on is purported to be taken can be said to have operated territorially then it is obvious that the extent of territory in whicb it was to apply was not only not enlarged by the States Reorgania tion Act but under s. 119 was kept rigid by lim:ting it to the territory of the former Andhra State. If. however, that Act created a jurisdiction in the High Court to deal with a particular class of C litigants, who. were hab'tually bringing vexatious suits it may be then possible to contend that jurisdiction continues to vest in the High Court of Andhra Pradesh. The High Court has viewed this matter from the latter angle and come to the conclusion that s. 65 and not s. 119 controls the matter.\n\nD The argument of the High Court is that the Act controls litigation and creates a new procedure in rspect of persons who in dulge habitually in vexatious litigation. The Act confers a jurisdic tion to put such persons und.er a procedural restraint and th's jurisdiction, the High Court holds. inhered in the former Madras High Court and later in the Madras and the AAdhra High Courts sepa- E ·· ~. rately and now it inheres in the Andhra Pradesh High Court. In the op'nion of the High Court, the jurisdiction can be exercised within all the territories subject to the Andhra Pradesh High Court including the Telangana Area.\n\nMr. K. R. Choudhury in supplementing this reasoning points F o!Jt that the High Court of Madras could take action aga 'nt any person who actd in a manner to attract the provisions of the Act, irrespective of where the person came from. He contends that a vexatious litigant from Bengal or Bombay could be visited with the punit've provisions of the Act and submits that there is no reason why the Andhra Pradesh High Court cannot control the prac- G tice and procedure in the courts of the Telangana area in the same way. Accord'ng to him, the Act must be treated as extended to the Telangana area 'as the Andhra Pradesh High Court continues to possess all the jurisdiction of the former Madras High Court. This was also the original plea of the Advocate-General in his petition in the High Court, though not apparently accepted by the High It Court.\n\nWe do not accept the argument of Mr. Choudhury. the Madras Act was applied by the legislaure only to the Madras Presidency. Suppose it had been applied to one district only. Could\n\nthe High Court have said that notwithstanding the lim'ted application, it would take action in the other districts of the Madras Presidency? If it could not\"1ave extended the territorial limits of the\n\nPJlAllHAKAR RAO v. ANDHRA PRADESH (llidayatullah, J.) 753\n\napplication of the Act in Madras Presidency, the position is not any different now, in view of the provisions of s. 119 of the States Reorganisation Act which clearly lay down that no law of one of the amalgamating States is to be extended to the area of the other amalgamating States except by a competent legislative or other competent authority and further that the law shall be construed as restricted to the territories within each State immediately before the Reorganisat'on. The territorial area is thus not only not enlarged but is frozen. We may now consider whether s. 65 of the States Reorganisation Act makes any difference to this position.\n\nThe Act was designed to control vexatious litigation and it created for the purpose, a new procedure which. applied to persons whose visits to courts, as litigants, were not only frequent but were also habitually . vexatious. The Act enabled the Advocate-General to apply to the High Court and the High Court on being satisfied that a person had been acting in this manner, could make an order\n\ntht no proceeding thenceforward was to be filed by that person in the Presidency town without the leave of the High Court and elsewhere without the leave of the District & Sessions Judge. -The Act was intended to apply in the whole of the Presidency of Madras including the area carved away from the Pres; dency of Madras and made into the State of Andhra in 1953 and which is now a part of the State of Andhra Pradesh after 1956. The Act was intended to E operate territorially as indeed the clause dealing with the extent of application of the Act itself shows. [n its operative part also the order was to be made with a territor; al distinction between the Presidency Town and the rest of the Presidency of Madras. The order to be passed under the Act contemplated leave of the High Court before a su!t \"'as filed in the Presidency Town and the leave of the District & Sessions Judge elsewhere.\n\nrt is plain that on its terms the Act cannot apply in the State of Andhra Pradesh atleast in so far as the Presidency Town mentioned in s. 2(l)(i) is concerned. That Presidency Town was the city of Madras and therefore s. 2(!)(i) of the Act cannot apply in Andhra Pradesh, because there is no Presidency Town in Andhra Pradesh to which s. 20 )(;) can now refer. The distinction between the city of Hyderabad and other parts of the State of Andhra Pradesh has been artificially brought into existence by the High Court by making the order in respect of the city of Hyderabad as if it was a Presidency Town. Th's is legislation pure and simple and it cannot be undertaken by the High Court. Section 2(1)(i) of the Act can no longer apply without a proper amendment. It may, however, be contended that s. 2(l)(ii) can apply and the whole of the new Stat~ of Andhra Pradesh may be taken to be governed by sub-cl. (11). It would, however, be somewhat strange to make the District & Sessions Judge decide whether a particular lit; gant should be allowed to move the High Court in appeal, revision or in an\" original proceeding. The Act is unworkable ; n the State of Andhra Pradesh without substantial modifications to it.\n\nSUPH.R.MK COUH'l' UEl'OH'l'S\n\n[ J 965] 3 S.C.R.\n\n. This is not a question merely of procedural jurisd\\ction as the A High Court has reasoned. No doubt the Act as it stood, vested a\n\ni!-lisdiction in the High Court o deal with a particular type of ht1gant but the Act made the High Court to deal with the matter territorially. It is because the territory has changed that the question arises whether the old jurisdiction of the High Court can now take iii new territory. All laws are intended to operate territorially B and no Provincial Legislature in India possessed extra-territorial jurisdiction. That the Madras Legislature enacted was to operate in its own territory and it said so in the Act. If new territories are to be governed by the Act it must be extended to the new territories and till it is extended the Act can only operate within the old territories and this is the obvious result of s. 119 of the States Re- C organisation Act.\n\nThus there are two difficulties in the way of holding that this Act is operative in the Telangana area of the new State of Andhra Pradesh.- To begin with it has not been extended to the area known D as the _Jelangana area and, till exlended, s. 119 of the States Reorganisation Act expressly prohibits an extension to the Telangana area by judicial construction. Secondly, there being no Presidency Town as such in the new State of Andhra Pradesh, s. 2(l)(i) cannot now be made applicable to the new State of Andhra Pradesh, until some other town 's substituted by the Legislature in its place.\n\nE The mention of the Presidency Town in s. 2(l)(i) was not with a view to indicate the seat of the High Court but was so made because the High Court possessed original jurisdiction in that area.\n\nThe words 'Presidency Town' might, of course, have been amended to read Hyderabad, the seat of the Andhra Pradesh H'gh Court, but this .has not been done. No doubt the court under s. 121 of the p\n\nStates Reorganisation Act possesses a power to construe laws by adapting them in such a manner as to facilitate their application to the newly formed State, but the power which is exercisable is only a power of simple adaptation and not a power of legislation.\n\nAn increase in the territories in which an Act is to apply is dependent on legislation such as is contemplated by s. 119 of the G States Reorganisation Act. What the High Court has done is more' than an adaptation. It has not only substituted the city of Hyderabad for the Presidency town but it has also made the law applicable to Telangana courts contrary to the intendment of s. 119 of the States Reorganisation Act. Formerly the seat of the High Court was different and the Act must, on the same reason'ng have applied H there, so that the words 'Presidency Town' must have read as Guntur at first and now they read Hyderabad. In our opinion, the High Court was in error in holding that the Act merely created a prooedural jurisdiction in the High Court of Madras which on its .div'sion into two High Courts, inhered in both the High Courts and continues to inhere in the High Court of Andhra Pradesh even for purposes of areas to which the Act has not been extended. In this\n\nPRABHAKAR RAO I'. AiillRA l'RAllE; H (8/w/t . .!.) 755\n\n.A view of the matter the order made by the High Court cannot be sustained and it must be discharged.\n\nWe have not gone into the merits and there is much that justified action against Mawle. He has filed dozens of cases and has floojed courts with litigation often by way of repeated petitions .B on the same matter. As we find that the Act is not available against him we say nothing more. We may place on record that Mawle expressed his willingness before us to be restrained in his litigation and we hope that he will now make amends for his past conduct.\n\nWe expect him to behave properly in future. c The appeal is allowed but in the circumstances of the case we make no order about osts.\n\nShah, J. The Provincial Legislature of Madras exercising power under the Government of India Act, 1935 enacted the Vexatious Litigation (Prevention) Act 8 of 1949. The material provi- D sions of the Act are: -\n\n\"2. (I) If, on an application made by the Advocate-General, the High Court is satisfied that any person has habitually and without any reasonable ground instituted vexatious proceedings civil or criminal, in any Court or\n\n(2)\n\nCourts, the mgh Court may, after giving that person an opportunity of being heard, order that no proceedings, civil or criminal, shall be instituted by him in any Court-\n\n(i) in the Presidency-town, without the leave of the High Court; and\n\n(ii) elsewhere, without the leave of the District and Sessions Judge.\n\n• • *\n\n3. The leave referred to in section 2, subsection (!), shall not be given in respect of any proceedings unless the High Court or, as the case may be. the District and Sessions Judge, is satisfied that there is prima facie ground for such proceedings.\n\n4. Any proceedings instituted by a person against whom an order under section 2, sub-section (]), has been made, without obtaining the leave referred to in that subsection shall be dismissed: Provided that this section shall not apply to any proceedings instituted for the purpose of obtaining such leave.\n\n5. A copy of every order made under section 2. subsection (!), shall be published in the Fort St. George Gazette.\"\n\n7[6 81J1>UE1o!E COURT REPORTS\n\n(1965) :3 S.C.R.\n\nBy this Act the H; gh Court of Madras was invested with A. power t0 place restrictions upon vexatious litigants. The prin.:iple of thi~ legislation, it appears, was borrowed from statute 16 & 17 Viet. Ch. 30 enacted by the British Parliament. By Art. 225 of the Constitution, the jurisd; ction of the High Court of Madras, subject to the provisions of the Constitution and to the provisions of any law of the appropriate Legislature remained the same as imme- B diately before the commencement of the Constitution. On September 14. 1953 the State of Andhra was carved out of the territories of the State of Madras by the Andhra State Act 30 of 1953. Section 28 of that Act prov'ded:\n\n\"(!) As from the !st day of January, 1956, or such earlier a\n\ndate as may be appointed under sub-section (2) there shall be a separate High Court for the State of Andhra.\"\n\nThe High Court of Andhra which was constituted by a notification issued by the President had by s. 30, in respect of the territories D included in the State of Andhra. all such original, appellate and other jur'sdiction as under the law in force immediately before the prescribed day was exercisable in respect of the territories or any part thereof by the High Court at Madras. The Andhra High Court was therefore a successor of the J;:igh Court of Madras and\n\nxercised all the powers and administered the same law which the E Madras High Court exercised in the territories comprised in the Andhra State. By s. 2(1) of Act 8 of 1949 the H; gh Court of Madras was competent to issue an order against any person that no proceedings, civil or crimim I. shall be instituted by h'm in any Court (i) in the Presidency-town without the leave of the High Court, and (ii) elsewhere, without the leave of the D'strict and F Sessions Judge; and this power, by virtiie of s. 30 cf Act 30 of 1953 became exercisable by the Andhra High Court. The expression\n\n''Presidency-town\" means by the General Clauses Act, 1897 (s. 3(44\\) the local limits of ordinary original jurisdiction of the High Court of Jud:'cature at Calcutta, Madras or Bombay as the case may be. and there was no Presidency-town within the area of the G Andhra State as constituted by Act 30 of 1953. The Parliament had, however, with a view to meet anomalies of the present nature expressly provided by s. 55 that \"Notw'th>tanding that no provision or insufficient provis; on had been made under s. 54 for the adaptation of a law made before the appo•nted day, any court,\n\n• • • required or empowered to H enforce such .law may, for the purpose of facilitating its application in relation to the State of Andhra, • • construe the law with such alterations not affecting the substance as may be necessary or proper to adapt it to the matter before the court * * •.\" The expression \"Presidencytown\" must in the context of the cdnstittition of a separate H'gh Court for Andhra. after the State of Andhra was formed, mean '\n\nl'JL\\JlllAKAH HAO 1 • • 4..~HllRA PR.4..l>Jo:ll (S/w.11, J.) j;)7\n\nthe Capital town of the State in wkich the High Court was locate<l, Such an adaptation does not affect the substance of the Act, and it would facilitate application thereof to the change<l circumstances,\n\nThe new State of Andhra Pradesh was censtituted under the States Reorg;111isation Act 37 of 1956 by incorporating certain areas specified in s. 3 to the territory of the old State of Andhra,\n\nB_v s. 65( I )ti) from the appointed day i.e. Nov\"mber I, 1956 the jurisdiction of the High Court of the existing State of Andhra was, it was declared. to exten1 to the whole -of the territories transferred to that State from the ex'sting St1te of Hyderabad, the High Court was to be known as the High Court of Andhra Pradesh, and the princ'pal seat of the High Court was to be at Hyderabad. The jurisdiction of the High Court of Andhra was by the express provision made in s. 65(1)(a) exercis]ble over the whole of the territory transferred to that State from the existing State of Hyderabad, The phraseology used by the Legislature, in my judgment. authorises the new High Court of Andhra Pradesh to exercise all jurisdiction which the High Court of Andhra could exercise before the appointed day.\n\nThe High Court of Andhra Pradesh made an order against the appellant on April 21. 1961 that no pro:eedlngs, civil or criminal. shall be instituted by the appellant in the city of Hyderabad without the leave of the H'gh Court; in the c:ty of Secunderabad without the leave of the Chief City Civil h.dge; and elsewhere without the leave of the District and Sessions Judge concerned.\n\nThis wcs manifestly a personal direction which impo•ed restrictions upon the appellant. The power to impose a ban under s. 2, 't may be noticd, vests only in the High Court: the power to remove the b>n in specific cases is exercisable by the High Court, or a Judge of the District and Sessions Court according as the proceeding is to be instituted in a Court in the cap'tal of the State where the High Court is located. or in any Court in the mofuss'J: There can therefore be no question of conflict of jurisdiction between the High Court 2nd the District Court. Once the H'gh Court pronounces an order under s. 2, it may be removed in appropriate cases only by the High Court where the proceeding is to be instituted in any Court in the Capital town in which the High Court is located and el>ewhere by order of the Distr'ct and Sessions Court. The Act confers jurisdiction upon the High Court and does not as a condition of its exercise require that the person to be restrained must be residing or have a domicile in any area within the jurisd'ction of the Court invested with jurisdiction. Nor has the order contemplated to be p3ssed any direct territorial operation: it is ; ssued against a per<on individually and restrains him from 'nstituting proceedings without leave of the Court specified in that behalf. A personwherever resid\"ng or domiciled-may therefore be restrained by an 0rder under s. 2.\n\n8UPHEME\n\nCOURT\n\nREPORTS [ 1965] :l s.c.n.\n\nA But it is said that notwithstanding the comprehensive phraseology used by the Legislature in s. 65, because of s. 119 of the States Reorganisation Act 37 of 1956 a somewhat anomalous situ- .ation hs resulted. It is c:aimed that the power w; th wh:ch the High Court is 'nvested to prevent a litigant from instituting proceedings wh'.ch are vexatious may be exerc'sed in respect of proceed'ngs to be i.11>titute:l in comts within the limits of the former State of B Anlhra or which arise from proceedings decided by Courts in that area. The upshot of the argument is that a l'tig&nt may .be treated as voxatious only in respect of proceedings to be institutefi by him in the Court; of the Districts within the former State of Andhra and :n respect of procedings sought to be brought before the High 0 Court in exercise of its appellate, revision a I or superintending jurisdiction from orders made by Courts wilhin the territory of the former. State of Andhra: he may therefore be subjected to a disability in respect of proceedings to be instituted in some distr; cts in the State und also in respct of proceedings reaching the High Court from cases instituted in those districts, and not in respect of D the rest. Whal the effect of such a v'ew may be upon the exercise of the High Court's jurisdictian under Arts. 226 and 227 of the Constitution or the orig; nal jurisdiction, for instance, under the Companies Act or the Banking Companies Act, the appellant who has argued his case pe:sona\\ly did not attempt to tackle. Section 119 of the States Reorganisation Act, 1956 provides: E \"The provisions of Part fl shall not be deemed to have effected any change in the territories to which any law in force immediately bfore the appointed day extends or applies, and territorial references ; n 'ny such law to an existing State shall, until otherwise prov; ded by a competent Legislature or other competent authority, F . be construed as meaning the territories within that\n\nState immediately before the appointed day.\"\n\nBy that section the territorial extent of the laws 'n operation prior to the appointed day, until amended by a competent Legislature or othc:r competent authority. contim•es. But s. 119 must be read G harmoniously withs. 650Hal. The l:tter clause declares in unambiguous terms that the jurisdiction of the High Court of the exist; ng State of Andhra shall extend to the whole of the territories transferred to that State from the existing State of Hyderabad. If it be granted that the High Court of the State of Andhra had jurisdiction to pass orders under the Vexatious Litigation (Preven)in) Act\" it H would be difficult to hold that s. 119 of Act 37 of 1956 sttll restricts\n\nthe exercise of the power by the High Court to prevent a vexatious litigant from instituting proceedings in certain areas in the mofussil and not in others or from instituting proceedings by way of appeals or revisions from orders and decrees in proceedings instituted in the Courts in the area within the former State of Andhra and not elsewhe, e. The Porliament having by Act 30 of 1953 invested the\n\n1'RA13HAKAH HAO t'. ANl_.HJtA PH.ADE.SH 18haJt, J.) 7591\n\nA High Court of Andhra with authority to exercise all jurisdiction\n\nwh'ch the High Court of Madras possessed within the territories of the State of Andhra as constituted and thereafter having by s. 65(1)(a) of Act 37 of 1956 extended the exercise of that authority over the entire territory of Andhra Pradesh. and in my judgment, it would be impossible to accept the argument that in respect of B the jurisdiction conferred by the Vexatious Litigation (Prcvent'on) Act 8 of 1949 the High Court was incompetent to pass the order which it did against the appellant.\n\nI need not add anything to what Hidayatullah, J., has said in upholding the comt'tutionality of the provisions of the Act, for I agree with him that the Act is not unconstitutional as offending either Art. 19 or Art. 14 of the Constitution.\n\nOn the merits, however, I am of the opinion that the cases which the appellant had instituted in the var'ous Courts did not justify a drastic order of the nature passed against him. The appellant claims that he is the owner of a large estate in the city of Hyderabad, and that is not denied: he also carries on an extensive business and in the course of carrying on h's business and managing his estate, he has often to seek recourse to courts of law. The appellant says that because of certain reasons (which need not be set out) he conducts his litigation before the Courts without any professional assistance. Assuming that the appellant has in instituting and prosecuting cases which he had inst'tuted shown less objectivity and more enthusiasm than a lawyer may in similar cases show, and had attempted to obtain benefit of what he thought were lacunae in the law, imposition of a blanket restriction against him of the nature imposed by the High Court may not seem to be warranted. I am unable to agree having carefully considered the nature of the various cases filed by the appellant or from the general progress of those cases as set out in the list of cases filed in this CoLl!'t and the .orders passed therein that those proceedings are vexatious or frivolous.\n\nI would therefore allow the appeal, but not on the grounds which are set out by Hidayatullah, J.\n\nA ppea/ allowed.", "total_entities": 187, "entities": [{"text": "PRABHAKAR RAO N. MAWLE", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "PRABHAKAR RAO N. MAWLE", "offset_not_found": false}}, {"text": "STATE OF ANDHRA PRADESH", "label": "RESPONDENT", "start_char": 27, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "STATE OF ANDHRA PRADESH", "offset_not_found": false}}, {"text": "April 9, 1965", "label": "DATE", "start_char": 52, "end_char": 65, "source": "ner", "metadata": {"in_sentence": "PRABHAKAR RAO N. MAWLE v.\n\nSTATE OF ANDHRA PRADESH\n\nApril 9, 1965\n\n[K. SUBBA RAO, K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH\n\nAND s. M. S!KRI, JJ.]"}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 82, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "K. N. WANCHOO", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, J.", "label": "JUDGE", "start_char": 97, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH, J.", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 117, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "s. 2(1)", "label": "PROVISION", "start_char": 211, "end_char": 218, "source": "regex", "metadata": {"statute": null}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 223, "end_char": 248, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 65, 119 and 121", "label": "PROVISION", "start_char": 263, "end_char": 282, "source": "regex", "metadata": {"linked_statute_text": "States Reorganisation Act", "statute": "States Reorganisation Act"}}, {"text": "s. 2(1)", "label": "PROVISION", "start_char": 361, "end_char": 368, "source": "regex", "metadata": {"linked_statute_text": "States Reorganisation Act", "statute": "States Reorganisation Act"}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 431, "end_char": 451, "source": "ner", "metadata": {"in_sentence": "By s. 2(1) of the Madras Vexatious Litigation (Prevention) Act 1949, the High Court of Madras was competent to issue an order against any person that no proceedings shall be instituted by him in any court (i) in the Presidency-town without the leave of the High Court, and (ii) 'elsewhere without the leave of the District and Sessions Judge."}}, {"text": "Andhra Pradesh", "label": "GPE", "start_char": 747, "end_char": 761, "source": "ner", "metadata": {"in_sentence": "On the application of the Advocate-General of Andhra Pradesh the High Court of Andhra Pradesh ordered that no proceeding should be instituted by the appellant in the City of Hyderabad without leave of the High Court, in the City of Secunderabad without leave of the Chief City Civil Judge and elsewhere, without leave of the concerned District and Sessions Judge."}}, {"text": "High Court of Andhra Pradesh", "label": "COURT", "start_char": 766, "end_char": 794, "source": "ner", "metadata": {"in_sentence": "On the application of the Advocate-General of Andhra Pradesh the High Court of Andhra Pradesh ordered that no proceeding should be instituted by the appellant in the City of Hyderabad without leave of the High Court, in the City of Secunderabad without leave of the Chief City Civil Judge and elsewhere, without leave of the concerned District and Sessions Judge."}}, {"text": "Hyderabad", "label": "GPE", "start_char": 875, "end_char": 884, "source": "ner", "metadata": {"in_sentence": "On the application of the Advocate-General of Andhra Pradesh the High Court of Andhra Pradesh ordered that no proceeding should be instituted by the appellant in the City of Hyderabad without leave of the High Court, in the City of Secunderabad without leave of the Chief City Civil Judge and elsewhere, without leave of the concerned District and Sessions Judge."}}, {"text": "Secunderabad", "label": "GPE", "start_char": 933, "end_char": 945, "source": "ner", "metadata": {"in_sentence": "On the application of the Advocate-General of Andhra Pradesh the High Court of Andhra Pradesh ordered that no proceeding should be instituted by the appellant in the City of Hyderabad without leave of the High Court, in the City of Secunderabad without leave of the Chief City Civil Judge and elsewhere, without leave of the concerned District and Sessions Judge."}}, {"text": "Telangana", "label": "GPE", "start_char": 1236, "end_char": 1245, "source": "ner", "metadata": {"in_sentence": "In his app2al to this Court, the appellant contended that: (i) the High Court had no jurisdiction to take action under the Act as its provisions were not extended to the Telangana area of the State, which formed part of the former State of Hyderabad; and (ii) the Act was unconstitutional because it prevented some citizens from approaching the Court, which everyone is entitled to in a State governed by the rule of law."}}, {"text": "K. Subba Rao", "label": "JUDGE", "start_char": 1504, "end_char": 1516, "source": "ner", "metadata": {"in_sentence": "HELD: (i) (Per K. Subba Rao, K. N. Wanchoo, M. Hidayatullah and S. M. Sikri, JJ.)"}}, {"text": "K. N. Wanchoo", "label": "JUDGE", "start_char": 1518, "end_char": 1531, "source": "ner", "metadata": {"in_sentence": "HELD: (i) (Per K. Subba Rao, K. N. Wanchoo, M. Hidayatullah and S. M. Sikri, JJ.)", "canonical_name": "K. N. WANCHOO"}}, {"text": "M. Hidayatullah", "label": "JUDGE", "start_char": 1533, "end_char": 1548, "source": "ner", "metadata": {"in_sentence": "HELD: (i) (Per K. Subba Rao, K. N. Wanchoo, M. Hidayatullah and S. M. Sikri, JJ.)", "canonical_name": "M. HIDAYATULLAH, J."}}, {"text": "S. M. Sikri", "label": "JUDGE", "start_char": 1553, "end_char": 1564, "source": "ner", "metadata": {"in_sentence": "HELD: (i) (Per K. Subba Rao, K. N. Wanchoo, M. Hidayatullah and S. M. Sikri, JJ.)", "canonical_name": "S. M. Sikri"}}, {"text": "High Courts of Madras and Andhra Pradesh", "label": "COURT", "start_char": 1841, "end_char": 1881, "source": "ner", "metadata": {"in_sentence": "The High Court was in error in holding that the Act merely created a procedural jurisdiction to put persons who indulge habitually in vexatious litigation under a procedural restraint, in the former High Court of Madras, which jurisdiction, on its division into the two High Courts of Madras and Andhra Pradesh inhered in both the High Courts and continued to inhere in the High Court of Andhra Pradesh even for the purposes of those areas to which the Act had not been extended. ["}}, {"text": "Madras Provincial Legislature", "label": "ORG", "start_char": 2087, "end_char": 2116, "source": "ner", "metadata": {"in_sentence": "752 D-F] The Act was passed by the Madras Provincial Legislature, and conferred jurisdiction upon the Madras High Court to deal with habitual litigants indul, qing in vexatious liti({ation."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 2154, "end_char": 2171, "source": "ner", "metadata": {"in_sentence": "752 D-F] The Act was passed by the Madras Provincial Legislature, and conferred jurisdiction upon the Madras High Court to deal with habitual litigants indul, qing in vexatious liti({ation."}}, {"text": "ss. 30 and 53", "label": "PROVISION", "start_char": 2309, "end_char": 2322, "source": "regex", "metadata": {"statute": null}}, {"text": "Andhra State Act, 1953", "label": "STATUTE", "start_char": 2330, "end_char": 2352, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Andhra State", "label": "GPE", "start_char": 2428, "end_char": 2440, "source": "ner", "metadata": {"in_sentence": "30 and 53 of the Andhra State Act, 1953, the Vexatious Litigation (Prevention) Act continued to be in force in the Andhra State, and the Andhra High Court possessed the same jurisdiction as the former Madras High Court."}}, {"text": "Andhra High Court", "label": "COURT", "start_char": 2450, "end_char": 2467, "source": "ner", "metadata": {"in_sentence": "30 and 53 of the Andhra State Act, 1953, the Vexatious Litigation (Prevention) Act continued to be in force in the Andhra State, and the Andhra High Court possessed the same jurisdiction as the former Madras High Court."}}, {"text": "States Reorganisation Act, 1956", "label": "STATUTE", "start_char": 2617, "end_char": 2648, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 65", "label": "PROVISION", "start_char": 2737, "end_char": 2742, "source": "regex", "metadata": {"linked_statute_text": "But the Act is unworkable in the State of Andhra Pradesh which is formed under the States Reorganisation Act, 1956", "statute": "But the Act is unworkable in the State of Andhra Pradesh which is formed under the States Reorganisation Act, 1956"}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 2750, "end_char": 2775, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Madras Legislature", "label": "ORG", "start_char": 3004, "end_char": 3022, "source": "ner", "metadata": {"in_sentence": "What the Madras Legislature enacted was to operate in its own territorv and it said so in the Vexatious Litigation (Prevention) Act."}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 3648, "end_char": 3673, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 119", "label": "PROVISION", "start_char": 4100, "end_char": 4106, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 121", "label": "PROVISION", "start_char": 4205, "end_char": 4211, "source": "regex", "metadata": {"statute": null}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 4219, "end_char": 4244, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 119", "label": "PROVISION", "start_char": 4528, "end_char": 4534, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(1)(i)", "label": "PROVISION", "start_char": 4630, "end_char": 4640, "source": "regex", "metadata": {"statute": null}}, {"text": "Per Shah", "label": "JUDGE", "start_char": 5505, "end_char": 5513, "source": "ner", "metadata": {"in_sentence": "754 E-HJ\n\nPer Shah, J. (Dissenting): Parliament having by the Andhra State Act invested the High Court of Andhra with authority to exercise all Jurisdiction which the High Court of Madras possessed, within the territories of the State of Andhra, and thereafter, having by s. 65(l)(a) of the States Reorganisation Act extended the exercise of that authority over the entire territory of Andhra Pradesh, it would be impossible to accept the argument that in respect of the jurisdiction conferred by the VexatiouS Litigation (Prevention) Act, the High Court of Andhra Pradesh was incompetent to pass the order which It did against the appellant. ["}}, {"text": "Parliament having by the Andhra State Act", "label": "STATUTE", "start_char": 5532, "end_char": 5573, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "High Court of Andhra", "label": "COURT", "start_char": 5587, "end_char": 5607, "source": "ner", "metadata": {"in_sentence": "754 E-HJ\n\nPer Shah, J. (Dissenting): Parliament having by the Andhra State Act invested the High Court of Andhra with authority to exercise all Jurisdiction which the High Court of Madras possessed, within the territories of the State of Andhra, and thereafter, having by s. 65(l)(a) of the States Reorganisation Act extended the exercise of that authority over the entire territory of Andhra Pradesh, it would be impossible to accept the argument that in respect of the jurisdiction conferred by the VexatiouS Litigation (Prevention) Act, the High Court of Andhra Pradesh was incompetent to pass the order which It did against the appellant. ["}}, {"text": "s. 65(l)(a)", "label": "PROVISION", "start_char": 5767, "end_char": 5778, "source": "regex", "metadata": {"linked_statute_text": "Parliament having by the Andhra State Act", "statute": "Parliament having by the Andhra State Act"}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 5786, "end_char": 5811, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Parliament", "label": "ORG", "start_char": 6354, "end_char": 6364, "source": "ner", "metadata": {"in_sentence": "Since Parliament expressly provided by s. 55 of the Andhra State Act, that a court may ctrue a law which it hs to enforce, with such alterations not affectmg the substance as may be necess~\n\nor proper to adapt it to the matter before the cow:t. te expression \"Presidency town\" must, in the context of the constituti?n of !'"}}, {"text": "s. 55", "label": "PROVISION", "start_char": 6387, "end_char": 6392, "source": "regex", "metadata": {"linked_statute_text": "Parliament having by the Andhra State Act", "statute": "Parliament having by the Andhra State Act"}}, {"text": "Andhra State Act", "label": "STATUTE", "start_char": 6400, "end_char": 6416, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 119", "label": "PROVISION", "start_char": 6964, "end_char": 6970, "source": "regex", "metadata": {"statute": null}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 6978, "end_char": 7003, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 65(1)", "label": "PROVISION", "start_char": 7204, "end_char": 7217, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 119", "label": "PROVISION", "start_char": 7290, "end_char": 7296, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Andhra Pradesh", "label": "ORG", "start_char": 7462, "end_char": 7485, "source": "ner", "metadata": {"in_sentence": "Section 65(1) of the States 'Reorganisation\n\nAct which must be read harmoniously with s. 119 authorises the High Court of Andhra Pradesh to exercise all jurisdiction, which the High Court of Andhra could exercise, over all the territories transferred to the State of Andhra Pradesh from the existing State of Hyderabad."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 8999, "end_char": 9006, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 9014, "end_char": 9035, "source": "regex", "metadata": {}}, {"text": "K. R. Chaudhuri", "label": "JUDGE", "start_char": 9314, "end_char": 9329, "source": "ner", "metadata": {"in_sentence": "K. R. Chaudhuri and B. R. G. K. Achar, for the respondent (in C. A. No.", "canonical_name": "K. R. Chaudhuri"}}, {"text": "B. R. G. K. Achar", "label": "JUDGE", "start_char": 9334, "end_char": 9351, "source": "ner", "metadata": {"in_sentence": "K. R. Chaudhuri and B. R. G. K. Achar, for the respondent (in C. A. No."}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 9476, "end_char": 9485, "source": "ner", "metadata": {"in_sentence": "The Judgment of Subba Rao, Wanchoo, Hidayatullah and A Sikri, JJ."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 9496, "end_char": 9508, "source": "ner", "metadata": {"in_sentence": "The Judgment of Subba Rao, Wanchoo, Hidayatullah and A Sikri, JJ.", "canonical_name": "M. HIDAYATULLAH, J."}}, {"text": "A Sikri", "label": "JUDGE", "start_char": 9513, "end_char": 9520, "source": "ner", "metadata": {"in_sentence": "The Judgment of Subba Rao, Wanchoo, Hidayatullah and A Sikri, JJ."}}, {"text": "Hidayatlillah", "label": "JUDGE", "start_char": 9543, "end_char": 9556, "source": "ner", "metadata": {"in_sentence": "was delivered by Hidayatlillah, J. Shah, J. delivered a separate Opia.ion.", "canonical_name": "M. HIDAYATULLAH, J."}}, {"text": "Shah", "label": "JUDGE", "start_char": 9561, "end_char": 9565, "source": "ner", "metadata": {"in_sentence": "was delivered by Hidayatlillah, J. Shah, J. delivered a separate Opia.ion."}}, {"text": "January 11, 1960", "label": "DATE", "start_char": 9624, "end_char": 9640, "source": "ner", "metadata": {"in_sentence": "Hidayatullah, J .. On January 11, 1960, the Advocate General applied to the High Court of Andhra Pradesh, Hyderabad for action against the appellant Prabhakar Rao H. Mawle under s. 2 B of the Vexatious Litigation (Prevention) Act 1949 (Madras Act VlII of 1949), on the allegation that Mawle had been \"habitually\" and without any reasonable ground instituting \"vexatious proceedings\" in the courts within the cities of Hyderabad and Secunderabad and also in."}}, {"text": "High Court of Andhra Pradesh, Hyderabad", "label": "COURT", "start_char": 9678, "end_char": 9717, "source": "ner", "metadata": {"in_sentence": "Hidayatullah, J .. On January 11, 1960, the Advocate General applied to the High Court of Andhra Pradesh, Hyderabad for action against the appellant Prabhakar Rao H. Mawle under s. 2 B of the Vexatious Litigation (Prevention) Act 1949 (Madras Act VlII of 1949), on the allegation that Mawle had been \"habitually\" and without any reasonable ground instituting \"vexatious proceedings\" in the courts within the cities of Hyderabad and Secunderabad and also in."}}, {"text": "Prabhakar Rao H. Mawle", "label": "PETITIONER", "start_char": 9751, "end_char": 9773, "source": "ner", "metadata": {"in_sentence": "Hidayatullah, J .. On January 11, 1960, the Advocate General applied to the High Court of Andhra Pradesh, Hyderabad for action against the appellant Prabhakar Rao H. Mawle under s. 2 B of the Vexatious Litigation (Prevention) Act 1949 (Madras Act VlII of 1949), on the allegation that Mawle had been \"habitually\" and without any reasonable ground instituting \"vexatious proceedings\" in the courts within the cities of Hyderabad and Secunderabad and also in.", "canonical_name": "PRABHAKAR RAO N. MAWLE"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 9780, "end_char": 9784, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Mawle", "label": "JUDGE", "start_char": 10414, "end_char": 10419, "source": "ner", "metadata": {"in_sentence": "1765/58 Mawle described the judgment D of the lower court as: \" .................. shocking to the sense of justice, a grave dereliction of duty, flagrant abuse of fundamental principles of law and the natural justice, full with errors patent on the face, showing a gross manifest injustice done through the tyrannical arbitrary acts.\"", "canonical_name": "Mawle"}}, {"text": "S. 200", "label": "PROVISION", "start_char": 11301, "end_char": 11307, "source": "regex", "metadata": {"statute": null}}, {"text": "3-6-1959", "label": "DATE", "start_char": 11345, "end_char": 11353, "source": "ner", "metadata": {"in_sentence": "(v) In an appeal filed on 3-6-1959 he did not pay court fee of Rs."}}, {"text": "0. V. Subbanayadu", "label": "LAWYER", "start_char": 11733, "end_char": 11750, "source": "ner", "metadata": {"in_sentence": "privileges claimed by both these veteran advocates (Mr. 0."}}, {"text": "Hari Narayanalal", "label": "LAWYER", "start_char": 11822, "end_char": 11838, "source": "ner", "metadata": {"in_sentence": "V. Subbanayadu and\n\n< '\n\nPRABHAKAR RAO v. ANDHRA PRADESH (Hi.dayatullah, J.) 747\n\nMr. Hari Narayanalal) even though they had taken the role of a party, sole witnesses, swearing false affidav; ts ............ \"."}}, {"text": "S. 109", "label": "PROVISION", "start_char": 11991, "end_char": 11997, "source": "regex", "metadata": {"statute": null}}, {"text": "S.\n\n99", "label": "PROVISION", "start_char": 12415, "end_char": 12421, "source": "regex", "metadata": {"statute": null}}, {"text": "Advocate General claimed that though the Act", "label": "STATUTE", "start_char": 13245, "end_char": 13289, "source": "regex", "metadata": {}}, {"text": "questioned the jurisdiction of the High Court of Andhra Pradesh to take action B under the Act", "label": "STATUTE", "start_char": 13634, "end_char": 13728, "source": "regex", "metadata": {}}, {"text": "Geaeral", "label": "OTHER_PERSON", "start_char": 14611, "end_char": 14618, "source": "ner", "metadata": {"in_sentence": "He attempted an Ci(· planation of the cases to whicll the Advocate Geaeral had referred in his petition. '"}}, {"text": "April 21, 1961", "label": "DATE", "start_char": 14689, "end_char": 14703, "source": "ner", "metadata": {"in_sentence": "The High Court by its judgment dated April 21, 1961, now nmjer appeal, held that the Act was both constitutional and intra vires, that the High Court had jurisdiction to make the order and that action under the Act was called for."}}, {"text": "Articles 132, 133", "label": "PROVISION", "start_char": 15338, "end_char": 15355, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "S 1", "label": "PROVISION", "start_char": 15762, "end_char": 15765, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court of Judicature Consolidation Act, 1925", "label": "STATUTE", "start_char": 15775, "end_char": 15826, "source": "regex", "metadata": {}}, {"text": "India", "label": "GPE", "start_char": 15888, "end_char": 15893, "source": "ner", "metadata": {"in_sentence": "30 (now replaced by section S 1 of E the Supreme Court of Judicature Consolidation Act, 1925: 15 & l6 Geo V c. 49) is perhaps the only one of its kind in India."}}, {"text": "Madras", "label": "GPE", "start_char": 16123, "end_char": 16129, "source": "ner", "metadata": {"in_sentence": "(2) It extends to the whole of the State of Madras."}}, {"text": "section 2", "label": "PROVISION", "start_char": 17154, "end_char": 17163, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Civil Procedure, 1908", "label": "STATUTE", "start_char": 17183, "end_char": 17212, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 2", "label": "PROVISION", "start_char": 17299, "end_char": 17308, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "section 2", "label": "PROVISION", "start_char": 17649, "end_char": 17658, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "section 2", "label": "PROVISION", "start_char": 17950, "end_char": 17959, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "List III of the Govern- R ment of India Act", "label": "STATUTE", "start_char": 18907, "end_char": 18950, "source": "regex", "metadata": {}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 19218, "end_char": 19225, "source": "regex", "metadata": {"linked_statute_text": "List III of the Govern- R ment of India Act", "statute": "List III of the Govern- R ment of India Act"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 19230, "end_char": 19237, "source": "regex", "metadata": {"linked_statute_text": "List III of the Govern- R ment of India Act", "statute": "List III of the Govern- R ment of India Act"}}, {"text": "S.11", "label": "PROVISION", "start_char": 19508, "end_char": 19512, "source": "regex", "metadata": {"linked_statute_text": "List III of the Govern- R ment of India Act", "statute": "List III of the Govern- R ment of India Act"}}, {"text": "England", "label": "GPE", "start_char": 20001, "end_char": 20008, "source": "ner", "metadata": {"in_sentence": "B passed in England, has been applied in several cases to prevent an abuse of the process of court."}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 20651, "end_char": 20658, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 20662, "end_char": 20669, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "High Court of Andhra Pra desh", "label": "COURT", "start_char": 20975, "end_char": 21004, "source": "ner", "metadata": {"in_sentence": "given a history of the evolution of the State and of the High Court of Andhra Pra desh."}}, {"text": "Andhra", "label": "GPE", "start_char": 21638, "end_char": 21644, "source": "ner", "metadata": {"in_sentence": "When the State of Andhra was formed in 1953 by the Andhra State Act of 1953, the High Court of Madras ceased to exercise jurisdiction over the territory of the State of Andh'ra."}}, {"text": "Andhra State Act", "label": "STATUTE", "start_char": 21671, "end_char": 21687, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 30", "label": "PROVISION", "start_char": 22014, "end_char": 22024, "source": "regex", "metadata": {"statute": null}}, {"text": "Andhra State Act", "label": "STATUTE", "start_char": 22032, "end_char": 22048, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "High. 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and • • • •\n\nThe question that arises is whether the application of the Act in the Telangana area is made impossible by s. 119 of the Act of\n\nt,956 or depends upon s. 65 of that Act."}}, {"text": "s. 119", "label": "PROVISION", "start_char": 25383, "end_char": 25389, "source": "regex", "metadata": {"linked_statute_text": "the States Reorganisation Act 1956", "statute": "the States Reorganisation Act 1956"}}, {"text": "s. 65", "label": "PROVISION", "start_char": 25427, "end_char": 25432, "source": "regex", "metadata": {"linked_statute_text": "the States Reorganisation Act 1956", "statute": "the States Reorganisation Act 1956"}}, {"text": "s. 119", "label": "PROVISION", "start_char": 25688, "end_char": 25694, "source": "regex", "metadata": {"linked_statute_text": "the States Reorganisation Act 1956", "statute": "the States Reorganisation Act 1956"}}, {"text": "s. 65", "label": "PROVISION", "start_char": 26127, "end_char": 26132, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 119", "label": "PROVISION", "start_char": 26141, "end_char": 26147, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras and the AAdhra High Courts", "label": "COURT", "start_char": 26521, "end_char": 26554, "source": "ner", "metadata": {"in_sentence": "inhered in the former Madras High Court and later in the Madras and the AAdhra High Courts sepa- E ·· ~. rately and now it inheres in the Andhra Pradesh High Court."}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 26602, "end_char": 26627, "source": "ner", "metadata": {"in_sentence": "inhered in the former Madras High Court and later in the Madras and the AAdhra High Courts sepa- E ·· ~. rately and now it inheres in the Andhra Pradesh High Court."}}, {"text": "K. R. Choudhury", "label": "JUDGE", "start_char": 26800, "end_char": 26815, "source": "ner", "metadata": {"in_sentence": "Mr. K. R. Choudhury in supplementing this reasoning points F o!Jt that the High Court of Madras could take action aga 'nt any person who actd in a manner to attract the provisions of the Act, irrespective of where the person came from.", "canonical_name": "K. R. Chaudhuri"}}, {"text": "Bengal", "label": "GPE", "start_char": 27075, "end_char": 27081, "source": "ner", "metadata": {"in_sentence": "He contends that a vexatious litigant from Bengal or Bombay could be visited with the punit've provisions of the Act and submits that there is no reason why the Andhra Pradesh High Court cannot control the prac- G tice and procedure in the courts of the Telangana area in the same way."}}, {"text": "Bombay", "label": "GPE", "start_char": 27085, "end_char": 27091, "source": "ner", "metadata": {"in_sentence": "He contends that a vexatious litigant from Bengal or Bombay could be visited with the punit've provisions of the Act and submits that there is no reason why the Andhra Pradesh High Court cannot control the prac- G tice and procedure in the courts of the Telangana area in the same way."}}, {"text": "Choudhury", "label": "OTHER_PERSON", "start_char": 27685, "end_char": 27694, "source": "ner", "metadata": {"in_sentence": "We do not accept the argument of Mr. Choudhury."}}, {"text": "Madras Presidency", "label": "GPE", "start_char": 27753, "end_char": 27770, "source": "ner", "metadata": {"in_sentence": "the Madras Act was applied by the legislaure only to the Madras Presidency."}}, {"text": "s. 119", "label": "PROVISION", "start_char": 28203, "end_char": 28209, "source": "regex", "metadata": {"statute": null}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 28217, "end_char": 28242, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 65", "label": "PROVISION", "start_char": 28666, "end_char": 28671, "source": "regex", "metadata": {"statute": null}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 28679, "end_char": 28704, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2(l)(i)", "label": "PROVISION", "start_char": 30175, "end_char": 30185, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(!)(i)", "label": "PROVISION", "start_char": 30258, "end_char": 30268, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 20", "label": "PROVISION", "start_char": 30375, "end_char": 30380, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(1)(i)", "label": "PROVISION", "start_char": 30728, "end_char": 30743, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(l)(ii)", "label": "PROVISION", "start_char": 30838, "end_char": 30849, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 119", "label": "PROVISION", "start_char": 32158, "end_char": 32164, "source": "regex", "metadata": {"statute": null}}, {"text": "Andhra Pradesh.-", "label": "GPE", "start_char": 32327, "end_char": 32343, "source": "ner", "metadata": {"in_sentence": "Thus there are two difficulties in the way of holding that this Act is operative in the Telangana area of the new State of Andhra Pradesh.- To begin with it has not been extended to the area known D as the _Jelangana area and, till exlended, s. 119 of the States Reorganisation Act expressly prohibits an extension to the Telangana area by judicial construction."}}, {"text": "s. 119", "label": "PROVISION", "start_char": 32446, "end_char": 32452, "source": "regex", "metadata": {"statute": null}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 32460, "end_char": 32485, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2(l)(i)", "label": "PROVISION", "start_char": 32652, "end_char": 32662, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(l)(i)", "label": "PROVISION", "start_char": 32840, "end_char": 32850, "source": "regex", "metadata": {"statute": null}}, {"text": "Andhra Pradesh H'gh Court", "label": "COURT", "start_char": 33095, "end_char": 33120, "source": "ner", "metadata": {"in_sentence": "The words 'Presidency Town' might, of course, have been amended to read Hyderabad, the seat of the Andhra Pradesh H'gh Court, but this .has not been done."}}, {"text": "s. 121", "label": "PROVISION", "start_char": 33176, "end_char": 33182, "source": "regex", "metadata": {"statute": null}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 33193, "end_char": 33218, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 119", "label": "PROVISION", "start_char": 33569, "end_char": 33575, "source": "regex", "metadata": {"linked_statute_text": "States Reorganisation Act", "statute": "States Reorganisation Act"}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 33585, "end_char": 33610, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Telangana courts", "label": "COURT", "start_char": 33787, "end_char": 33803, "source": "ner", "metadata": {"in_sentence": "It has not only substituted the city of Hyderabad for the Presidency town but it has also made the law 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MAWLE"}}, {"text": "Provincial Legislature of Madras exercising power under the Government of India Act, 1935", "label": "STATUTE", "start_char": 35200, "end_char": 35289, "source": "regex", "metadata": {}}, {"text": "section 2", "label": "PROVISION", "start_char": 35972, "end_char": 35981, "source": "regex", "metadata": {"linked_statute_text": "The Provincial Legislature of Madras exercising power under the Government of India Act, 1935", "statute": "The Provincial Legislature of Madras exercising power under the Government of India Act, 1935"}}, {"text": "section 2", "label": "PROVISION", "start_char": 36266, "end_char": 36275, "source": "regex", "metadata": {"linked_statute_text": "The Provincial Legislature of Madras exercising power under the Government of India Act, 1935", "statute": "The Provincial Legislature of Madras exercising power under the Government of India Act, 1935"}}, {"text": "section 2", "label": "PROVISION", "start_char": 36539, "end_char": 36548, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 225", "label": "PROVISION", "start_char": 36914, "end_char": 36922, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "September 14. 1953", "label": "DATE", "start_char": 37186, "end_char": 37204, "source": "ner", "metadata": {"in_sentence": "On September 14."}}, {"text": "Andhra State Act", "label": "STATUTE", "start_char": 37289, "end_char": 37305, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 28", "label": "PROVISION", "start_char": 37318, "end_char": 37328, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Andhra", "label": "GPE", "start_char": 37506, "end_char": 37521, "source": "ner", "metadata": {"in_sentence": "st day of January, 1956, or such earlier a\n\ndate as may be appointed under sub-section (2) there shall be a separate High Court for the State of Andhra.\""}}, {"text": "s. 30", "label": "PROVISION", "start_char": 37621, "end_char": 37626, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court at Madras", "label": "COURT", "start_char": 37882, "end_char": 37902, "source": "ner", "metadata": {"in_sentence": "all such original, appellate and other jur'sdiction as under the law in force immediately before the prescribed day was exercisable in respect of the territories or any part thereof by the High Court at Madras."}}, {"text": "s. 2(1)", "label": "PROVISION", "start_char": 38134, "end_char": 38141, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 38486, "end_char": 38491, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act, 1897", "label": "STATUTE", "start_char": 38603, "end_char": 38628, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 3(44\\)", "label": "PROVISION", "start_char": 38630, "end_char": 38639, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "High Court of Jud:'cature at Calcutta", "label": "COURT", "start_char": 38698, "end_char": 38735, "source": "ner", "metadata": {"in_sentence": "The expression\n\n''Presidency-town\" means by the General Clauses Act, 1897 (s. 3(44\\) the local limits of ordinary original jurisdiction of the High Court of Jud:'cature at Calcutta, Madras or Bombay as the case may be."}}, {"text": "Presidency-town within the area of the G Andhra State as constituted by Act", "label": "STATUTE", "start_char": 38791, "end_char": 38866, "source": "regex", "metadata": {}}, {"text": "s. 55", "label": "PROVISION", "start_char": 38982, "end_char": 38987, "source": "regex", "metadata": {"linked_statute_text": "Presidency-town within the area of the G Andhra State as constituted by Act", "statute": "Presidency-town within the area of the G Andhra State as constituted by Act"}}, {"text": "s. 54", "label": "PROVISION", "start_char": 39075, "end_char": 39080, "source": "regex", "metadata": {"linked_statute_text": "Presidency-town within the area of the G Andhra State as constituted by Act", "statute": "Presidency-town within the area of the G Andhra State as constituted by Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 40013, "end_char": 40017, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 65( I )", "label": "PROVISION", "start_char": 40068, "end_char": 40078, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 65(1)(a)", "label": "PROVISION", "start_char": 40538, "end_char": 40549, "source": "regex", "metadata": {"statute": null}}, {"text": "April 21. 1961", "label": "DATE", "start_char": 40937, "end_char": 40951, "source": "ner", "metadata": {"in_sentence": "The High Court of Andhra Pradesh made an order against the appellant on April 21."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 41367, "end_char": 41371, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 41856, "end_char": 41860, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 42646, "end_char": 42650, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 65", "label": "PROVISION", "start_char": 42791, "end_char": 42796, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 119", "label": "PROVISION", "start_char": 42809, "end_char": 42815, "source": "regex", "metadata": {"statute": null}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 42823, "end_char": 42848, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Arts. 226 and 227", "label": "PROVISION", "start_char": 44007, "end_char": 44024, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 44100, "end_char": 44113, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 44129, "end_char": 44142, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 119", "label": "PROVISION", "start_char": 44220, "end_char": 44231, "source": "regex", "metadata": {"statute": null}}, {"text": "States Reorganisation Act, 1956", "label": "STATUTE", "start_char": 44239, "end_char": 44270, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 119", "label": "PROVISION", "start_char": 44896, "end_char": 44902, "source": "regex", "metadata": {"linked_statute_text": "the States Reorganisation Act, 1956", "statute": "the States Reorganisation Act, 1956"}}, {"text": "High Court of the State of Andhra", "label": "COURT", "start_char": 45202, "end_char": 45235, "source": "ner", "metadata": {"in_sentence": "If it be granted that the High Court of the State of Andhra had jurisdiction to pass orders under the Vexatious Litigation (Preven)in) Act\" it H would be difficult to hold that s. 119 of Act 37 of 1956 sttll restricts\n\nthe exercise of the power by the High Court to prevent a vexatious litigant from instituting proceedings in certain areas in the mofussil and not in others or from instituting proceedings by way of appeals or revisions from orders and decrees in proceedings instituted in the Courts in the area within the former State of Andhra and not elsewhe, e. The Porliament having by Act 30 of 1953 invested the\n\n1'RA13HAKAH HAO t'."}}, {"text": "s. 119", "label": "PROVISION", "start_char": 45353, "end_char": 45359, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 65(1)(a)", "label": "PROVISION", "start_char": 46051, "end_char": 46062, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 46622, "end_char": 46629, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 46633, "end_char": 46640, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}]}
{"document_id": "1965_3_760_764_EN", "year": 1965, "text": "THE TATA OIL MILLS CO. LTD. v.\n\nK. V. GOPALAN AND ORS.\n\nApril 15, 1965\n\n[P. B. GAJENDRAGADKAR, CJ., K.N. WANCHOO, M. H!DAYATULLAH\n\nAND V. RAMASWAMI, JJ.]\n\nKcrala Industrial Estabfohment (National and Festival Holidays) Act, 1958, ss. 3 and 11-Scope of.\n\nUnder the Standing Orders of the appel!ant company, its employees were entitled to five holidays with pay on specified dates during each year. Furthermore, by an agreement with the respondents' union, the company had agreed to grant an additional day's holiday with pay, thus raising the total number of paid annual helidays to six. In 1958 the Kerala Industrial Establishments (National and Festival Holidays) Act, 1958, was passed and s. 3 of the Act required evgry employer to declare holidays on every 26th January, 15th August and 1st May, and to grant four additional festival holidays each year, on dates to be fixed by the Inspector after consulting the employer and the employees. The number of paid holidays was thus statutorily fixed at 7.\n\nIn 1962, the company obtained the Inspector's decision on the four .festival holidays and declared the dates on which such holidays would be given. At that time, while an industrial dispute between the company and its employees was pending, the respondents filed applications under s. 33A of the Industrial Disputes Act, 1947, before the Tribunal. It was contended in these applications that the statutory provision in s. 3 for 7 paid holidays did not override or abro- gate the existing arrangement as to paid holidays and that the holidays to be given under s. 3 would be in addition, to the holidays which t\\le appellamt was bound to give the respondents under existing arrangements; and that the appellant's attempt to limit the number of paid holidays to 7 during 1962 was contrar.v to the terms of employment evidenced by the existing arrangement and therefore violative of s. 33. This contention was upheld by the Tribunal.\n\nIn appeal to this Court, HELD: Under s. 3 the statutory requirement is 7 paid holidays each year. If under an existing anangement the employees were entitled to more than 7 paid holidays, such more favourable right was protected by s. 11. The scheme of s. 11 clearly shows that s. 3 is not intended to prescribe a minimum number of paid holidays in addition to the exis.ting ones and, in the preseni case, would operate only to rai•e the total number nf holidays from 6 un<ler the existing arrangements to 7 paid holidays in accordance with s. 3. [764 B-E]\n\nOv1L APPELLATE JURISDICTION: Civil Appeal Nos. 150 and 160of 1964.\n\nAppeals by special leave from the award dated September 20. 1962, of the Industrial Tribunal. Ernakulam in Industrial Dispute Nos. 11 and JO of J 962 respectively.\n\n~'ATA MILLS '' (lOl'ALAN (Gajendragadkar, C.J.) 7Hl\n\nA G. B. Pai, J. B. Dadachanji. 0. C. Mathur and Ravinder Narain, for the appellant.\n\nM.R.K. Pillai, for the respondents.\n\nThe Judgment of the Court was delivered by Gajendragadkar, C. J. The short question of Jaw which_ these B two appeals raise for our decision relates to the constrctlon of ss. 3 and 11 of the Kerala Industrial Establishments (Nattonal all.d Festival Holidays) Act, 1958 (No. 47 of 1958) (hereisafter calle'1 th.e Act). That question arises in this way .. Two comJ.1>laints were tiled against the appellant, the Tata Oil Mills Company Ltd .• by the two groups of respondents, its workmen, resperu_vely under C s. 33A of the Industrial Disputes Act. These applications alleged that the management of the appellant had contravened the provi sions of s. 33 of the said Act inasmuch as it had denied its employees leave with wages on Founder's Day and Good Friday in\n\n1962. According to the respondents, they were entitled to have holidays with pay on the said two days under the terms and con- D ditions of service, and so, they claimed that the Tribunal should direct the appellant to give its employees holidays under the said existing arrangement and should pass other appropriate orders for the payment of wages for the two holidays in question. The appel !ant disputed the correctness of the respondents' contention. The Tribunal has rejected the appellant's plea and has declared that the E respondents are entitled to the privilege of paid holidays on Founder's Day and Good Friday in 1962. It has also ordered that the appellant should pay the wages to the respondents for those two days and the proportionate salary of the staff members as soon as the award comes into force. It is against these orders passed by the F Tribunal on the two complaints preferred before it by the respective respondents that the appellant has come to this Court by special leave; and on its behalf, Mr. Pai has contended that in making the award, the Tribunal has misconstrued the effect of ss. 3 and 11 of the Act. • Standing Order 30 of the Standing Orders of the appellant G company makes. provision for leave of all categories. S.O. 30 (vi) provides for holidays. It lays down that the factory will be closecl on the following days which will be considered as Company Holidays with pay, and will not be counted against the casual or privilege leave of an employee:\n\nI. New Year Day ([st Jam:iaryl . . lI\n\n2. Founder's Day (Saturday nearest to 3rd March)\n\n3. Good Friday\n\n4. Onam\n\n5. Christmas Day (25th December) There is a note appended to this provision which makes it clear 1hat\n\nin the event of the Company being compelled to observe a holiday or holidays for reasons of State such day or days shall not he couni- .ed as against the privilege or casual leave of the employees but shall\n\n762 SL'l'Hl:~IJ:o~ COUlt'l' Ul!.:l'ORTS\n\n(1965) ;\\ S.t'.H.\n\nbe treated as a Company holiday or holidays. Thus. it is clear that A. under the relevant Standing Order. the respondents are entitled to 5 paid holidays every year. •\n\nft fie\" the Standing Orders were framed and certified, there was •.in agreement between the appellant and the respondents' Union as ii result of which the appellant agreed to grant a further holiday, B and this agreement raised the number of total paid holidays in a year to 6. The additional holiday which the appellant thus agreed to J1:\n\n0 Ve to the respondents was to be given on the day when the tespondents' Union would celebrate its Union Day. Apparently. this holiday was analogous to the Founder's Day. the idea underlying the agreement being that just as the appellant gave a paid holiday C on the Founder's Day, the respondents should be given a paid holiday on the Union Day.\n\nIt appears that even after this agreement was reached, the respondents began to claim additional holidays; but the appellant was not prepared to make any addition to the list of holidays. It was pre- D pared to leave the choice of the agreed holidays to the employees provided they subm; tted to the Company an agreed list of such holidays.\n\nIn 1958, the Act was passed and it came into force on the 29th December, 1958. Section 3 of the Act provides E \"Grant of National and Festh; al Holidays-- Every employee shall be allowed in each calendar year a holiday of one whole day on the 26th January, the 15th August and the !st May and four other holidays each of one whole day for such festivals as the Inspector may. in consultation with the employer and the em- F ployees specify in respect of any industrial establishment\"'.\n\nThe result of this provision was that every employer to whom the Act applied had to declare holidays on the 26th January. the 15th August and the !st May and had to give four other holidays G according to the decision of the Inspector, the requirement of the section being that the Inspector had to consult the employer and the employees before fixing such other holidays. In other words, s. 3 statutorily fixed the number of paid holidays at 7; fixed three out of them and left the decision of the remaining four to the Inspector who. had to consult the employer and the employees.\n\nIn pursuance of this provision, the Inspector declared certain holidays for the year 1959. Not satisfied with the decision of the Inspector, one of the appellant's employees Mr. Baskara Menon filed a writ petition in the Kerala High Court under Art. 226 of the Constitution challenging the validity of the Inspector's decision. In that writ petition, the question about the construction of s .. 3of the\n\nTATA llILLS t. GOPJ.uN (Goj•11dragadkar, G. J.) i63\n\nA Act was agitated. In the result, tho High Court held that the cOlllplaint made by the petitioner against the validity of the decision of the Inspector was not well-founded, and so, th~ writ petition was dismissed.\n\nB In 1962, the appellant followed the same procedure and got a decision as to the festival holidays from the Inspector and declared that the said holidays would be observed as paid hqlidays in the year. At this time. certain industrial disputes were pending between the appellant and its employees belonging both to monthly and daily-rated categories before the Industrial Tribunal at Ernakulam.\n\nC The respondents felt that the declaration of the holidays made by the appellant for the year 1962 amounted to 11 contravention of s. 33 of the Industrial Disputes Act, and so, they filed the two pre sent complaints before the Industrial Tribunal under 33A of the said Act. That, in brief, is the genesis of the present complaints. ,\n\nD We have already noticed the provisions of s. 3 of the Act. The contention raised by the respondents before the Tribunal was that the statutory provision as to 7 paid holidays prescribes the minimum number of holidays which the employer has to give to his employees. This provision, according to the respondents. does not over-ride or abrogate the existing arrangement as to paid holidays.\n\nE In regard to paid holidays which are common to s. 3 and the present arrangement. they would, of course, have to be treated as paid holidays, but the four other festival holidays which the Inspector decides from year to year would be in addition to the holidays which the appellant is bound to give to the respondents under the existing arrangement. and since the appellant has limited the F number of paid holidays to 7 for the year 1962, it has acted contrary to the terms of employment evidenced by the existing arrangement as to paid holidays and that constitutes the violation of s. 33 ,)f the _Industrial Disputes Act. This contention has been uphf<ld by the Tribunal; and Mr. Pai argues that the view taken by the Tribunal is plainly inconsistent with the true scope and effect of s. 3 read G with s. 11 of the Act.\n\nThat takes us to s. 11 of the Act, because this section has to be read along. with s. 3 in determining the validity of the conclusion recorded by the Tribunal on the main point of dispute between the parties. s. 11 reads thus: -\n\n\"Rights and privileges under other laws, etc., not affected-\n\nJ; lothing cotained in tis Act shall adversely affect any nghts or privileges which any employee is entitled to with respect to national and festival holidays on the date on which this Act comes into force under any\n\note_r law. contract. custom or usage, if such rights or pnv1leges are more favourable to him than those to which he would be entitled under this Act''.\n\nSUP.REM&\n\nCOURT\n\nREPORTS J l\\!63] 3 S.C.lt,\n\nThis section gives an optio!l to the employees, they can choose to A. have the paid holidays either as prescribed by s. 3 or as are available to them under any other law, contract, custom or usage. In exercising this choice, it must, however, be borne in mind by the employees that the 26th January, the 15th August and the 1st May have to be taken as three holidays. That is the direction of s. 3. In regard to the remaining 4, the Inspector decides which days should B be paid holidays. In other words, the statutory requirement is 7 paid holidays. If under the existing arrangement the employees are entitled to have more than 7 paid holidays, that right will not be defeated by s. 3, because s. 11 expressly provides that if the rights or privileges in respect of paid holidays enjoyed by the employees are more favourable than are prescribed by s. 3, their existing rights C and privileges as to the total number of holidays will not be prejudiced by s. 3. The scheme of s. 11 thus clearly shows that s. 3 is not intended to prescribe a minimum number oL paid holidays in addition to the existing pnes, so that the respondents should be entitled to claim the seven holidays prescribed by s. 3 plus the six D holidays to which they are entitled under the existing arrangement. If in addition to the three holidays which are compulsory under s. 3, the employees are getting, say J other paid holidays, then s. 3 would step in and would require the employer to give his employees one more paid holiday, so as to make the number of paid holidays 7. In our opinion, if ss. 3 and 11 are read together, there can be no doubt that the respondents' claim that they B should have 7 holidays as prescribed by s. 3 plus 6 holidays as are available to them under the present arrangement is cleary untena:,1e. In the present case, the respondents were having six paid holidays. The statute has fixed the minimum number at 7 paid holidays, and so, since the existing arrangement was less favourable to the F employees, the statutory provision will come to their help and they will be entitled to claim 7 paid holidays in a year, and that means that s. 3 will be operative. If thatbe so, the procedure followed by the employer in consulting the Inspector and in fixing the list of 4 paid holidays for 1962 in addition to the three holidays fixed by the statute is perfectly consistent with the provisions of s. 3 of the G Act. The Tribunal was, therefore, in error in holding t!iat the appellant had contravened s. 33 of the Industrial Disputes Act.\n\nIn the result, the appeals must be allowed, the orders passed by the Tribunal in the two respective complaints set as[ ie, and the two complaints dismissed. There would be no order as to costs.\n\nAppeals allowed.\n\n,. ,", "total_entities": 71, "entities": [{"text": "THE TATA OIL MILLS CO. 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RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 135, "end_char": 152, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "ss. 3 and 11", "label": "PROVISION", "start_char": 230, "end_char": 242, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 691, "end_char": 695, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33A", "label": "PROVISION", "start_char": 1288, "end_char": 1294, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 1302, "end_char": 1331, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1425, "end_char": 1429, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1566, "end_char": 1570, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "s. 33", "label": "PROVISION", "start_char": 1886, "end_char": 1891, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1975, "end_char": 1979, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "s. 11", "label": "PROVISION", "start_char": 2170, "end_char": 2175, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "s. 11", "label": "PROVISION", "start_char": 2191, "end_char": 2196, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2216, "end_char": 2220, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2479, "end_char": 2483, "source": "regex", "metadata": {"statute": null}}, {"text": "~'ATA MILLS", "label": "PETITIONER", "start_char": 2729, "end_char": 2740, "source": "ner", "metadata": {"in_sentence": "~'ATA MILLS '' (lOl'ALAN (Gajendragadkar, C.J.) 7Hl\n\nA G. B. Pai, J. B. Dadachanji."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 2755, "end_char": 2769, "source": "ner", "metadata": {"in_sentence": "~'ATA MILLS '' (lOl'ALAN (Gajendragadkar, C.J.) 7Hl\n\nA G. B. Pai, J. B. Dadachanji."}}, {"text": "A G. B. Pai", "label": "JUDGE", "start_char": 2782, "end_char": 2793, "source": "ner", "metadata": {"in_sentence": "~'ATA MILLS '' (lOl'ALAN (Gajendragadkar, C.J.) 7Hl\n\nA G. B. Pai, J. B. Dadachanji."}}, {"text": "B. Dadachanji", "label": "LAWYER", "start_char": 2798, "end_char": 2811, "source": "ner", "metadata": {"in_sentence": "~'ATA MILLS '' (lOl'ALAN (Gajendragadkar, C.J.) 7Hl\n\nA G. B. Pai, J. B. Dadachanji."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 2816, "end_char": 2825, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 2830, "end_char": 2845, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "M.R.K. Pillai", "label": "LAWYER", "start_char": 2867, "end_char": 2880, "source": "ner", "metadata": {"in_sentence": "M.R.K. Pillai, for the respondents."}}, {"text": "ss. 3 and 11", "label": "PROVISION", "start_char": 3075, "end_char": 3087, "source": "regex", "metadata": {"statute": null}}, {"text": "Tata Oil Mills Company Ltd", "label": "RESPONDENT", "start_char": 3314, "end_char": 3340, "source": "ner", "metadata": {"in_sentence": "That question arises in this way .. Two comJ.1>laints were tiled against the appellant, the Tata Oil Mills Company Ltd .• by the two groups of respondents, its workmen, resperuvely under C s. 33A of the Industrial Disputes Act."}}, {"text": "s. 33A", "label": "PROVISION", "start_char": 3412, "end_char": 3418, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 3426, "end_char": 3449, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 33", "label": "PROVISION", "start_char": 3550, "end_char": 3555, "source": "regex", "metadata": {"statute": null}}, {"text": "Pai", "label": "OTHER_PERSON", "start_char": 4691, "end_char": 4694, "source": "ner", "metadata": {"in_sentence": "It is against these orders passed by the F Tribunal on the two complaints preferred before it by the respective respondents that the appellant has come to this Court by special leave; and on its behalf, Mr. Pai has contended that in making the award, the Tribunal has misconstrued the effect of ss."}}, {"text": "ss. 3 and 11", "label": "PROVISION", "start_char": 4779, "end_char": 4791, "source": "regex", "metadata": {"statute": null}}, {"text": "Founder's Day", "label": "RESPONDENT", "start_char": 5200, "end_char": 5213, "source": "ner", "metadata": {"in_sentence": "Founder's Day (Saturday nearest to 3rd March)\n\n3."}}, {"text": "Good Friday", "label": "RESPONDENT", "start_char": 5250, "end_char": 5261, "source": "ner", "metadata": {"in_sentence": "Good Friday\n\n4."}}, {"text": "Onam", "label": "RESPONDENT", "start_char": 5266, "end_char": 5270, "source": "ner", "metadata": {"in_sentence": "Onam\n\n5."}}, {"text": "Christmas Day (25th December)", "label": "RESPONDENT", "start_char": 5275, "end_char": 5304, "source": "ner", "metadata": {"in_sentence": "Christmas Day (25th December) There is a note appended to this provision which makes it clear 1hat\n\nin the event of the Company being compelled to observe a holiday or holidays for reasons of State such day or days shall not he couni- .ed as against the privilege or casual leave of the employees but shall\n\n762 SL'l'Hl:~IJ:o~ COUlt'l' Ul!.:l'ORTS\n\n(1965) ;\\ S.t'."}}, {"text": "29th December, 1958", "label": "DATE", "start_char": 6901, "end_char": 6920, "source": "ner", "metadata": {"in_sentence": "In 1958, the Act was passed and it came into force on the 29th December, 1958."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 6922, "end_char": 6931, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 7719, "end_char": 7723, "source": "regex", "metadata": {"statute": null}}, {"text": "Baskara Menon", "label": "OTHER_PERSON", "start_char": 8092, "end_char": 8105, "source": "ner", "metadata": {"in_sentence": "Not satisfied with the decision of the Inspector, one of the appellant's employees Mr. Baskara Menon filed a writ petition in the Kerala High Court under Art."}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 8135, "end_char": 8152, "source": "ner", "metadata": {"in_sentence": "Not satisfied with the decision of the Inspector, one of the appellant's employees Mr. Baskara Menon filed a writ petition in the Kerala High Court under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 8159, "end_char": 8167, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Tribunal at Ernakulam", "label": "COURT", "start_char": 8950, "end_char": 8982, "source": "ner", "metadata": {"in_sentence": "certain industrial disputes were pending between the appellant and its employees belonging both to monthly and daily-rated categories before the Industrial Tribunal at Ernakulam."}}, {"text": "s. 33", "label": "PROVISION", "start_char": 9117, "end_char": 9122, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 9130, "end_char": 9153, "source": "gazetteer", 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{"document_id": "1965_3_765_770_EN", "year": 1965, "text": "COMMISSIONER OF INCOME-TAX U.P. LUCKNOW\n\nTHE MAHESHWARI DEVI JUTE MILLS LTD. KANPUR\n\nApril 15, 1965\n\nJK. SuBBA RAO, J. C. SHAH ANDS. M. SIKRI, JJ.J\n\nJ11c0Jne-ta.J..'-Salf of asset--Capit(il. receipt _or income.\n\nTo protect the interests of its members against loss resulting from over production, the Jute Mills Association provided that the members shall work their looms for a fixed number of hours and gave to its members facility of transferring \"loom-ho.ui\"S\", that is, the number of hours for which the members were enhtled to work their factories. A member of the Association v.1as thereby permitted. in addition to the ''loom hours\" allotted to that member, to work its factory for such \"loom hours\" as were transferred to it by another member. The respondent-assessee had transferred its surplus \"loom hours'' whic.h it could not utilize during the assessment years, and received certain sums of money as consideration, \\Vhich the Incometax Officer included in the respondent's total income liable for payment of income-tax. That order was confirmed by the Appellate Assistant Commissioner and the Tribunal, but the High Court on a reference, held in favour of the assessee.\n\nIn his appeal to this Court, the Commissioner contended that: The right to work for the allotted number of hours was an asset of the assessee capable of being transferred, and where it was a part of the normal activity of the assessee's business to earn profit by making use of its asset by either employing it in its own manufacturing concern or by letting it out to others, the consideration received for allowing the transferee to use that asset was income received from business and chargeable to income tax.\n\nHELD: The High Court was right in holding that the receipts from sale of \"loom-hours 11 were in the nature of capital receipts and were not taxable. (770 EJ\n\nDistinction between revenue and capital in the law of income.- tax is fundamental. Tax is ordinarily not levied on capital profits: it is levied on income. Sale of stock-in-trade or circulating capital or rendering service in the course of trading results in a trading receipt; sale. of assets which the assessee uses as fixed capital to enable him to carry on his business results in capital receipt. The \"loomhours\" v.1ere the asset of the respondent, but their temporary user could not be granted. The transaction was therefore a sale of \"loomhours\", and when a businessman disposes of his capital for whatever reason, unless it is a part of his circulating capital, the receipt is capital and not income which is taxable. (769 E, Fl\n\nCommissioner of Excess Profits Tax, Bombay City v. Sri Lakshmi Silk Mills, (1952] S.C.R. 1, distinguished.\n\nMaheshwari Devi Jute Mills v. Commissioner of Income-tax U.P.\n\nLT. Misc. Case. decided on 13th September 1962, overruled.\n\n76.5\n\n766 ~UPltEMli:\n\nCOURT\n\nAEPOR1'.< (196.~] 3 ii.C.R.\n\nCIVIL APPELLATE J URISDICflON: Civil Appeals Nos. 66 and A 67 of 1964.\n\nAppeals from the judgment and decree March 28, 1961 of the Allahabad High Court in Income-tax Reference No. 165 of 1954.\n\nS. V. Gupte, Solicit<; r-General, R. Ganapathy Iyer and R. N.\n\nSad1they, for the appellant (in both the appeals).\n\nB A. V. Vfawanatha Sastri, S. Murthy and B. P. Maheshwari, for the respondent (in both the' appeals).\n\nThe Judgment of the Court was delivered by • Shah, J. The Maheshwari Devi Jute Mills Ltd. carries on the business of manufacturing jute goods and is a member oi the Jute Mills Association. To protect the members against loss resulting C from overproduction, members of the Association entered into an agreement dated January 9, 1932 called \"the First Working Time Agreement\" restricting hours of work. That agreement was to expire on December 11, 1944. With a view to continue the arrangement, a fresh agreement was d.ecuted on June 12, 1944. The preamble of the agreement was: D \"Whereas the signatories generally as a consequence of over-production having been put to considerable losses and in general interests of the Members and their employees and of the association and the jute industry and trade in general etc ...................... have determined E that provisions similar to those contained in the Working Time Agreement should be entered into and continued in manner hereinafter appearing\".\n\nBy cl. 4 of the agreement, the association imposed restrictions upon the hours of work of its members. The number of hours for which the members were entitled \\o work their factories were called F \"loom-hours\". Allotment of \"loom-hours\" depended upon the number of looms installed in the factory of each member. By cl. 5 it was' provided that the number of working hours per week set out in the agreement represented the total number 'Of hours for which a member was entitled to work its registered complement of looms. Clause 10 prescribed the maximum number of \"loom- G hours\" for a mill with a complement of looms .exceeding 220.\n\nClause 13 provided for registration of \"loom-hours\" of each member of the association. Clause 6 of the agreement enabled members to be grouped if they happened to be under the control of the same ma:naging agents or who were combined by any arrangement or agreement for registration as ~'Group Mills\". It was open to a mem- H ber of the Group Mills so registered te utilise the allotment of hours of work per week of other members in the same group who wern not fully utilising the hours of work allowed to them. By sub-cl. lbl a member was also entitled to transfer his surplus \"loom-hours\" to another member and upon suc, h transfer being duly effected and registered with the Association; the transferee was entitled. subject to certain conditi011s. to utilise \"loom-hours\" so 'transferred.\n\nI 1\n\n(', J, T. 1'. MAHRSHWARI Mn,1, s (Shah, J.)\n\nThe respondent was under the agreement allotted 220 x 7l hours per week. In the account year corresponding to the assessment yeu 1949-50, the preparatory section of the factory of the respondent was unable to work the looms for more than 48 hours a week, and with the sanction of the Association the respondent sold 220 x 24 \"loom-hours\" to the Nasl:.arpara Jute Mills and as consideration of the sale received Rs. 53,460/-. In the account year corresponding to the assessment year 1950-51 the respondent received from the Birla Jute Mills and Hanuman Jute Mills a total amount of Rs. 1,85,230/- for sale of surplus loom-hours.\n\nIn proceedings for assessment for the assessment years 1949-50 and 1950-51 the Income-tax Officer included in lhc total income of the respondent the amounts received by sale of \"loom-hours\" as revenue receipts liable to tax. The order of the Income-tax Officer was confirmed by the Appellate Assistant Cornmi,; sioner and. the Income-lax Appellate Tribunal. At the instance of the respondent, the Tribunal referred the following questicrn to the High Court of Judicature at Allahabad:\n\n\"Whether on the facts and in the circumstances of lhe case lhe receipts of the assessee by the ,.ale of loom-hours\n\namountin~ to Rs. 53,460/- anJ Rs. 1,85,230 Iin the\n\nassessme11t years 1949-50 and 1950-51 respectively were revenue receipts liable to tax under ihc Indian Income-tax Act?\"\n\nThe High Court answered the question in the negative. The Commissioner of Income-tax has preferred these appeals with certificate granted by the High Court under s. 66-A (2) of the Indian l ncome-tax Act.\n\nThe Tribunal held that the receipts in question were not capital receipts, nor were they of a casual or non-recurring nature.\n\nThe plea of the respondent that the receipts for sale of loom-hours arc not chargeable to tax because they arc, within the meaning of s. 4(3) (vii), casual and non-recurring, hlIS no substance. By cl. (3)\n\n(vii) of s. 4 receipts which are not capital gains chargeable according to the provisions of s. I 2B and whih are not arising from business or the exercise of a profession, vocation or occupation or by way of addition to the remuneration of an employee are exempt from tax, if they are of a casual and non-recurring nature. But a receipt in the ordinary course of the assessee's business, even ll though it is casual br non-recurring. is by the express words used by the Legislature, taxable.\n\nIt is not the case of the Department that a business in \"loomhours\" was carried on by the respondent. It is also common ground that for imposing restrictions upon the number of working hours. no compensation was paid to the . .1bcrs by the association or by any other body: if it were, such compeasation being paid for agreeing to restraint on trade would be capital. To protect the\n\nSUPREME\n\nCOURT RBl'ORTS [1965] 3 s.c.n.\n\ninterests of its members the Association provided that the mem A bers shall work their looms for a fixed number of hours and gave to its members facility of transferring the number of \"loomhours\". But by transferring \"loom-hours\" no interest in the looms or the machinery of the factory was being transferred: thereby merely a member of the Association was permitted in addition to the \"loom-hours\" allotted to that member to work its factory for B such \"loom-hours\" as were transferred to it by another member of the Association. In the proceedings before the Income-tax authorities, the Tribunal and the High Court, these \"loom-hours\" have been regarded as an asset belong to each member and in considering these appeals we do not think we would be justified C in allowing counsel to raise a contention (as was sought to be done) that \"loom-hours\" were in the nature of a privilege and were not an asset at all. The case has at all earlier stages been considered on the footing that by virtue of the covenant incorporated in the agreement between the members of the Association, the right to work for the allotted number of hours was an asset capable of being transferred, subject to the sanction of the Association.\n\nThe respondent was unable. on account of inefficiency of its preparatory section, to supply the requisite material for running the factory for 72 hours per week which it was entitled to do. It therefore transferred a fraction of the \"loom-hours\" allotted to it E to other members of the Association and in consideration of the transfer received in the two years in question substantial sums of money. The Solicitor-General submitted that where it is a part of the normal activity of the assessee's business to earn profit by making use of its asset by either employing it in its own manufacturing concern or by Jetting it out to others, consideration re- F cehed for allowing the transferee to use that asset is income received from business and chargeable to income-tax. In support of his contention counsel relied upon the judgement of this Court in Commissioner of Excess Profits, Bombay City v. Shri Lakshmi\n\nSilk Mills Ltd.('). In Shri Lakshmi Silk Mills Ltd. case the assessee Company was a manufacturing concern and had for the G purpose of its business installed a plant for dyeing silk yarn. For a part of the chargeable period the Company could not secure silk yarn .and its plant remained idle. The Company then let out the plant and the question arose whether rent received by the Company was chargeable to excess profits tax as profit of the business or was income from other sources and therefore not B\n\nchargeable to excess profits tax. It was held by this . Court that if a commercial asset is incapable of being used as such, rent received by letting it out to others is not income of the business. But an asset acquired and used for the. purpose of the business does not cease to be a commercial asset of that business as soon as it is\n\n(') ri902] S.C.R. l: 20 I.T.R. <151.\n\nC.I.T. V, MAHESHWARI MILLS(Shah, J.) 769\n\nA temporarily put out of use or is let out to another person for use in his business or trade. Receipt by the exploitation of a commercial asset is the profit of the business, irrespective of the manner in which the asset is exploited by the owner of' the business, for the owner is entitled to exploit it to his best advantage either by using it himself personally 'or by letting it out to somebody else.\n\nB What was let out in Lakshmi Silk Mills' case(') was the dyeing plant which continued to remain the property of the Company and it was temporarily let out when the assessee was unable to use it. Receipt from a commercial asset when it is capable of being used by the assessee but is not so used because of circumstances which necessitate cesser of its use would undoubtedly be income, 0 where the asset remains the property of the assessee and user of the asset is given to another person. If in the present case, for the hours which the respondent was unable to use itS looms the respondent had permitted some other person to work the looms, profits received for permitting such user would be income. But the distinction between that case and the present case arises from the pecu- D liar nature of the transaction in \"loom-hours\". \"Loom-hours\"\n\ncannot from their very nature be let out while retaining property in them, for there can be no grant of a temporary right to use\n\n\"loom-hours\". \"Loom-hours\" are the asset of the respondent, but temporary user of the \"loom-hours\" cannot be granted. The E transaction in this case is of sale of \"loom-hours\". There is no doubt that when .a businessman disposes of his capital for whatever reason, unless it is a part of his circulating capital, the receipt is capital and not income which is taxable.\n\nDistinction between revenue and capital i11 the law of incometax is fundamental. Tax is ordinarily not levied on capital profits: F it is levied on income. It is well-settled that sale of stock-in-trade or circulating capital or rendering service in the course of trading results in a trading receipt: sale of assets which the assessee uses as fixed capital to enable him to carry on his business results in capital receipt.\n\nG Our attention was invited to a judgment of the Allahabad High Court in Maheshwari Devi Jute Mills v. Commissioner of Income-tax, U.P., Lucknow(') in which a Division Bench of the Allahabad High Court answered a similar question relating to taxability of payments received for sale of \"loom-hours\" by the respondent in an assessment year with which we are not concerned in H these appeals. The Court in that case ignoring the view in the judgments under appeal held that \"loom-hours;, did not form the fixed profit-making structure of the respondent and it was not correct to say that the capital structure of the business was 220 looms multiplied by the number of hours per week for which' the machinery\n\n(1) [1'152] S.C.R. I; 20 I.T.R. <51.\n\n( 2) I.T. Misc. Case No. 177 of 1960 decided on September 13, 1962.\n\n770 1~11: 000.T. HPOaTI [198i] 3 1.c.Jt.\n\nwas entitled to work. The \"loom-hours\" had in the view of the A Court noth.ing to do with th.e capital structure of the business and there was nothing to show that the defect in Jhe preparatory section which rendered the \"loom-hours\" unutiliSable was permanent.\n\nIt was always open to the respondent to acquire th.e necessary yam 'from outside and thereby utilise the remaining quota of \"loomhours\" in manufacturing jute, and if the respondent preferred not B' to procure yarn .and chose to sell the surplus \"loom-hours\" and thus ensure profit for itself without incurring any risk, the receipt by disposal of a commercial asset was profit of the business irrespective of the manner in which that asset was exploited by the owner of the business. In the view of the High Court the respondent was tntitled to exploit the asset to its best advantage: it may do so C either by utilising it personally or by letting it out to somebody else, and the sale of a part of its quota of \"loom-hours\" amounted to exploitation of its capital asset and the receipt obtained therefrom was income. We are .unable to agree with this view. The.surplus \"loom-hours\" were disposed of and no interest remained D therein with the respondent: there was no exploitation of the \"loom-hours\" by permitting user while retaining ownership. Receipt by sale of ''loom-hours\" must therefgre be regarded in this case 1IS a capital receipt and not income.\n\nIn our judgment the High Court was right in holding that the receipts from sale of \"loom-hours\" were in the nature of capital B receipts and were not taxable. The appeals fail and are dismissed with costs.\n\nAppeals dismissed.\n\n... •", "total_entities": 33, "entities": [{"text": "COMMISSIONER OF INCOME-TAX U.P. LUCKNOW", "label": "PETITIONER", "start_char": 0, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX U.P. LUCKNOW", "offset_not_found": false}}, {"text": "THE MAHESHWARI DEVI JUTE MILLS LTD. KANPUR", "label": "RESPONDENT", "start_char": 41, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "THE MAHESHWARI DEVI JUTE MILLS LTD. KANPUR", "offset_not_found": false}}, {"text": "April 15, 1965", "label": "DATE", "start_char": 85, "end_char": 99, "source": "ner", "metadata": {"in_sentence": "KANPUR\n\nApril 15, 1965\n\nJK."}}, {"text": "JK. SuBBA RAO, J.", "label": "JUDGE", "start_char": 101, "end_char": 118, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH ANDS. M. 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The Maheshwari Devi Jute Mills Ltd. carries on the business of manufacturing jute goods and is a member oi the Jute Mills Association."}}, {"text": "January 9, 1932", "label": "DATE", "start_char": 3613, "end_char": 3628, "source": "ner", "metadata": {"in_sentence": "To protect the members against loss resulting C from overproduction, members of the Association entered into an agreement dated January 9, 1932 called \"the First Working Time Agreement\" restricting hours of work."}}, {"text": "December 11, 1944", "label": "DATE", "start_char": 3730, "end_char": 3747, "source": "ner", "metadata": {"in_sentence": "That agreement was to expire on December 11, 1944."}}, {"text": "June 12, 1944", "label": "DATE", "start_char": 3824, "end_char": 3837, "source": "ner", "metadata": {"in_sentence": "With a view to continue the arrangement, a fresh agreement was d.ecuted on June 12, 1944."}}, {"text": "cl. 4", "label": "PROVISION", "start_char": 4305, "end_char": 4310, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 5", "label": "PROVISION", "start_char": 4617, "end_char": 4622, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 10", "label": "PROVISION", "start_char": 4822, "end_char": 4831, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 13", "label": "PROVISION", "start_char": 4936, "end_char": 4945, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 6", "label": "PROVISION", "start_char": 5023, "end_char": 5031, "source": "regex", "metadata": {"statute": null}}, {"text": "Birla Jute Mills", "label": "ORG", "start_char": 6304, "end_char": 6320, "source": "ner", "metadata": {"in_sentence": "In the account year corresponding to the assessment year 1950-51 the respondent received from the Birla Jute Mills and Hanuman Jute Mills a total amount of Rs."}}, {"text": "Hanuman Jute Mills", "label": "ORG", "start_char": 6325, "end_char": 6343, "source": "ner", "metadata": {"in_sentence": "In the account year corresponding to the assessment year 1950-51 the respondent received from the Birla Jute Mills and Hanuman Jute Mills a total amount of Rs."}}, {"text": "Cornmi", "label": "PETITIONER", "start_char": 6712, "end_char": 6718, "source": "ner", "metadata": {"in_sentence": "The order of the Income-tax Officer was confirmed by the Appellate Assistant Cornmi,; sioner and."}}, {"text": "High Court of Judicature at Allahabad", "label": "COURT", "start_char": 6856, "end_char": 6893, "source": "ner", "metadata": {"in_sentence": "At the instance of the respondent, the Tribunal referred the following questicrn to the High Court of Judicature at Allahabad:\n\n\"Whether on the facts and in the circumstances of lhe case lhe receipts of the assessee by the ,.ale of loom-hours\n\namountin~ to Rs."}}, {"text": "Indian Income-tax Act", "label": "STATUTE", "start_char": 7161, "end_char": 7182, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 66", "label": "PROVISION", "start_char": 7348, "end_char": 7353, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-tax Act", "statute": "Indian Income-tax Act"}}, {"text": "s. 4(3)", "label": "PROVISION", "start_char": 7653, "end_char": 7660, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-tax Act", "statute": "Indian Income-tax Act"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 7734, "end_char": 7738, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-tax Act", "statute": "Indian Income-tax Act"}}, {"text": "Lakshmi Silk Mills Ltd.", "label": "ORG", "start_char": 10805, "end_char": 10828, "source": "ner", "metadata": {"in_sentence": "In Shri Lakshmi Silk Mills Ltd. case the assessee Company was a manufacturing concern and had for the G purpose of its business installed a plant for dyeing silk yarn."}}, {"text": "Lakshmi Silk Mills", "label": "ORG", "start_char": 12128, "end_char": 12146, "source": "ner", "metadata": {"in_sentence": "B What was let out in Lakshmi Silk Mills' case(') was the dyeing plant which continued to remain the property of the Company and it was temporarily let out when the assessee was unable to use it."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 13929, "end_char": 13949, "source": "ner", "metadata": {"in_sentence": "G Our attention was invited to a judgment of the Allahabad High Court in Maheshwari Devi Jute Mills v. Commissioner of Income-tax, U.P., Lucknow(') in which a Division Bench of the Allahabad High Court answered a similar question relating to taxability of payments received for sale of \"loom-hours\" by the respondent in an assessment year with which we are not concerned in H these appeals."}}, {"text": "September 13, 1962", "label": "DATE", "start_char": 14673, "end_char": 14691, "source": "ner", "metadata": {"in_sentence": "177 of 1960 decided on September 13, 1962."}}]}
{"document_id": "1965_3_771_776_EN", "year": 1965, "text": "COMMISSIONER OF INCOME-TAX, BANGALORE v.\n\nSHAHMOHANDASSADHURAM\n\nApril 15, 1965\n\n(K. SUBBA RAO, J. C. SHAH AND S. M. SIKRI, JJ.]\n\nIndian Income-tax Act (11 of 1922), s. 26A-Minors as partners of a firm-G11ardian, if can contract on minor's behalf-Whether such C partnership could be registered.\n\nThe assessee-firm claimed registration under s. 26A of the Indian Income Tax Act on the strength of a partnership deed executed between four partners of which t\\vo were minors. The Income Tax Officer refused registration on the ground that the minors were made parties to a contract by the eldest brother acting on their behalf and the minor had actually been debited with a share of loss. This was D upheld by the Appellate Assistant Commissioner, but the Appellate Tribunal, on a further appeal. construed the deed as having admitted the minors only to the benefits of the partnership, and accordingly held that the assessee w'1s entitled to be registered. In reference, the High Court answered the question in favour of the assessee. In appeal by certificate to this Court, the Revenue contended that (i) a guardian is not entitled to contract on behalf of a minor and the deed E was consequently void, and (ii) the partnership deed made the minors as full partners.\n\nHELD: The assessee-firm was entitled to be registered under the Income-tax Act. (776 HJ\n\n(i) As long as a partnership deed does not make a minor full partner a partnership deed cannot be regarded as invalid on the ground that a guardian has purported to contract on behalf of a minor. A guardian can do all that is necessary to effect the conferment and receipt of the benefits of partnership. So he must have the pawer to scrutinse the terms on which such benefits are received by the minor. He must also have the power to accept the conditions on which the benefits of partnership are being conferred. [775 G-H]\n\n(ii} The Partnership deed reasonably construed, only conferred G benefits of partnership on the two minors and did not make them full partners.\n\nCase law referred to.\n\nOVIL APPELLATE JurusmCllON: Civil Appeals Nos. 144-145 H of 1964.\n\nAppeals from the order dated November 16, 1960 of the Mysore High Court in Income-tax Reference No. 3/1959.\n\nN. D. Karkhanis and R. N. Sachthey, for the appellant (in both the appeals).\n\nR. Ganapathy Iyer, for the respondent (in both the appeal!l).\n\n77i\n\nSUPREME\n\nCOURT\n\nRIWORTS [1965] 3 s.c.R.\n\nThe Judgment of the Court was delivered by A\n\nSikri, J. These two appeals pursuant to a certificate granted by the High Court of Mysore under s. 66-A(2) of the Income-tax Act, 1922, are directed against its judgment answering the question referred tQ it in favour of the respondent-assessee. The question referred to is: B \"Whether the assessee, Mohandas Sadhuram, can be granted registration under Section 26-A of the Indian Income Tax Act on the basis of the partnership deed made ,1n 1-4-1952 for the assessment.year 1953-54 and on the basis of the said deed read with the supplementary deed on 1-4-1953 for the assessment year 1954-55\".\n\nThe respondent, MI s Shah Mohandas Sadhuram, hereinafter referred to as the assessee, is a firm. The assessee claimed registration under s. 26-A of the Indian Income- Tax Act on the strength of a Partnership Deed executed on April 1, 1952. As the answer to the question in part turns on the construction of the deed, the re-\n\nD . levant clauses may. be set out here. The Partnership Deed first describes the parties and then recites:\n\n\"Whereof the above four members were till this day members of a Joint Family, whereof yesterday that is on 31-3-1952 the said four members have 'tlecome divided not only in interest but also by metes and bounds, each E of the said members taking to his share one fourth (! / 4) of the said joint family assets and liabilities as detailed in the books of account as maintained by the fim1 known as Seth Mohandas Sadhuram and whereof we the first and second members have decided to constitute all the said four members as a partnership admitting the F third and fourth members thereof to the benefits of the said partnership but not to the liabilities thereunder\". ·\n\nThe first and second members referred to in the recital are Atmaram and Doulatram, both majors.\n\nThe other relevant clauses are as follows: G\n\n\"(4) The said firm is agreed to do business of Banking and Commerce (which term includes all that is usually and customarily is understood to be done thereunder) and also to deal in Automobiles business. The Automobiles business having been started by the said first and H second members under the name and style of Vijaya Automobiles, Mysore, when they were members of the\n\nsaid joint family as a partnership venture apart from the said family, it is agreed between us now that the said Automobiles business shall hereafter be continued to be done under the name and style of Vijaya Automobiles as part of the said firm.\n\nC.J.T. V.\n\nSHAH MOHANDAS (Sikri, J.)\n\n(7) It is agreed that the capital contribution of each member will be equal and the accounts to be maintained to indicate the said capital contribution, will show what each member has so contributed in the personal capital ledger account.\n\n(8) It is further agreed that after debiting all working expenses inclusive of those rererred to in para 6 supra, the profits of the firm less six pies per every rupee of profits which will be reserved for Charity Fuud will be distributed pro rata according to the proportion of capital investment as detailed of each member, all to be paid to his account in the books of account, from where each member can draw. The losses are agreed to be shared by the members in the like manner.\n\nThe share of profits for the 3rd and 4th member will be paid to them, the said profits to be credited to their ac: counts, and from there their maintenance charges and other expenses of necessities if any may be drawn by the said Guardian from the .said accounts.\n\n(I 0) It is agreed that the duration of this partnership will be for a period of one year, i.e. from !st of April, 1952 to 31st March, 1953, and the members might agree to continue the said partnership even thereafter under these terms or on terms to be determined then.\n\n(11) It is agreed that the profits and losses of the Bombay branch and other branches if any outside the State of\n\nMysore will be credited or debited separately in the books of account of these branches and final allocation made in those books of account. as distinct from the profits and losses of the firm .in State of Mysore.\n\n(12) It is agreed that the first and the second members do maintain proper accounts as is customarily to be maintained\".\n\nG For the assessment year 1953-54, the Income Tax Officer rejected the application for registration on the ground that \"in the case of the assessee, the minors are made parties to a contract by the eldest brother acting on their behalf. The minor has actually been debited with a share of loss. Taking these facts into account, I hold that the partnership is not entitled to the benefits of registra- H tion\". For the assessment year 1954-55, he also rejected the application but added thi~ further ground that \"a supplementary deed of partnership extending the life of the partnership beyond 1-4-1953 for a further period at the will of the partners is filed. This is on\n\n10 annas stamp paper. (The supplementary deed rests on clause 10 of the ori3inal deed.) I have already held that the original deed is not registerable. The supplementary deed cannot confer any fresh rights in the matter\".\n\n774 SUPllllJJ\n\nCOURT RJJlOBT8\n\n(19611) 3 S.C.R.\n\nThe f>ppellate Assistant Commissioner, on appeal, upheld the orders of the Income Tax Officer in respect of both the assessment years.\n\nOn further appeal, the Appellate Tribunal, following the decision of the Madras High Court in Jakka Devayya and Sons v.\n\nCommissioner of Income-tax, Madras(') construed the deed as B having admitted the minors only to the benefits of the partnership.\n\nIt accordingly held that the assessee was entitled to be registered for both the years. At the instance of the Commissioner of Income Tax, the Tribunal referred the question already set out above to the High Court: The High Court, following its judgment in Income Tax Re- C ference No. 2 of 1959, which is the subject-matter of appeal before us in The Commissioner of Income Tax Madras v. MI s Shah\n\nJethaji Plm/chand(') answered the question in favom of the assess.ee. The main reason given in that judgment of the High Court is \"that an instrument of partnership entered into between persons, some of whom are by law incompetent to contract, as D might happen if one of them is a minor, is not' necessarily null and void, and in a ca<e lil, e the present one, where the execution of the instrument of partnership on behalf of a minor by his guardian was for the purpose of admitting the minor to th_e benefits of partnership, no question of the invalidity of the instrumnt can proper Jy arise\".\n\nE Mr. Karkhanis, the learned counsel for the appellant contends that on a proper construction of the deed it is clear that the minors have been made partners, and therefore the deed is not valid. He relies on clauses 4, 7, 8, 10, 11 and 12 of the Partnership deed, set out above, to establish that the minors were admitted as full partners. He further urges that a guardian is not entitled to contract on behalf of a minor and the deed is consequently void.\n\nThis Court hele in Commissioner of Income Tax, Bombay v.\n\nDwarkadas Khetan & Co.(') that the income tax officer was only empowered to register a partnership which was specified in the instrument of partnership and it was nbt open to the Department to register a partnership different from that which was formed by the instrument. It further held that s. 30 of the Indian Partnership Act was designed to confer equal benefits upon the minor by treating him as a partner, but it did. not render a minor a competent and\n\nfull partner, and any document which made a minor full partner could not be regarded as valid for the purpose of registration. But B the facts in that case were that in the instrument of partnership Kantilal Kasherdeo was described as a full partner entitled not only to a share in the profits but also liable to bear all the lossess including loss of capital. It was also provided that \"all the four partners\n\n(') ( ) 22 I.T.R, 26i. (') Ciril Appe&ls Nos. 146·1'7 of 1964; judgment delivered on April 15, 1965. (') (t\n\n) 41 I.T.R. 528.\n\n('.I.T. V. SHAH llOHANDAS (Sikri, J.) 775\n\nA were to attend to the business, and if consent was needed, aU the partners including the minor had to give their consent in writig.\n\nThe minor was also entitled to manage the affairs of the firm, mcluding inspection of the account books, and was given tlie right to vote, if a decision on votes had to be taken\". As Hidayatullah J. observed, \"in short, no distinction was made between the ault B partner and the minor and to all intents and purposes, the mmor was a full partner, even though under the partnership law he could only be admitted to the benefits of the partnership and not as a partner\".\n\nDoes this deed then make the minors full partners or does it c only confer benefits of \\>artnership on them? Is any clause of the deed void? Before we discuss these questions it is necessary to consider what are the incidents and true nature of 'benefits of partnership' and what is a guardian of a minor competent to do on behalf of a minor to secure the full benefits of partnership to a minor.\n\nFirst it is clear from sub-s. (2) of s. 30 of the Partnership Act that a D minor cannot be made liable for losses. Secondly, s. 30, sub. s (-4)\n\nenables a minor to sever his connection with the firm and if he does so, the amount of his share has to be determined by evaluation made, as far as possible, in accordance with the rules contain•\n\ned in s. 48, which section visualises capital having been contributed by partners. There is no difficulty in holding that this severance E may be effected on behalf of a minor by his guardian. Therefore, sub-s.(4) contemplates that capital may have been contributed on behalf of a minor and that a guardian may on behalf of a minor sever his connection with the firm. If the guardian is entitled to sever the minor's connection with the firm, he must also be held to be entitled to refuse to accept the benefits of partnership or agree F to accept the benefits of partnership for a further period on terms which are in accordance with law. Sub-Section (5) proceeds on the basis that the minor may or may not know that he has been admitted to the benefits of partnership. This sub-section enables him to elect, on attaining majority, either to remain a partner or not to become a partner in the firm. Thus it contemplates that a guardian G may have accepted the benefits of a partnership on behalf of a minor without his knowledge. If a guardian can accept benefits of partnership on behalf of a minor he must have the power to scrutinise the terms on which such benefits are received by the minor.\n\nHe must also have the power to accept the conditions on which the benefits of partnership are being conferred. It appears to us that H the guardian can do all that is necessary to effectuate the conferment and receipt of the benefits of partnership.\n\nIt follows from the above discussion that as long as a partnership deed does not make a minor full partner a partnership deed cannot be regarded as invalid on the ground that a guardian has purported to contract on behalf of a minor if the contract is for the purposes mentioned above.\n\n'.f\n\nSUPREME COURT REPORTS\n\n[1965] 3 \", C, R:\n\nLet us then examine the partnership deed in the light of these A principles. It need hardly be stated that the partnership deed must be construed re.asonably. The recital set out above expressly states that it is the major members who had decided to constitute the partnership and admit the minors to the benefits of the said partnership. The rest of the clauses must be construed in the light of this recital. Clause 4 only states the business to be carried bn and the B name of the business. It seems to us that the expression 'ii has been agreed between us' has reference to the agreement mentioned in the recital. Regarding clause 7, which deals with capital contribution, it is urged that a guardian is not entitled to agree to contribute capital, We are unable to agree. If it is one of the terms on which benefits bf partnership are being conferred either the guardian must C refuse to accept the benefits or he must accept this term. In some cases such an agreement by a guardian may be avoided by the minor, if it was not entered into for his benefit, but the agreement will remain valid as long as it is not avoided by the minor. .\n\nRegarding clause 10, Mr. Karkhanis submits that this embo- D dies a clear agreement enabling the minor to continue the said partnership even thereafter umier these terms or on terms tb be determined then, and therefore this clause is void. We can find no defect in this clause. The duration of a partnership has to be fixed between the major members, and the guardian on behalf of a minor may agree to accept the benefits of the partnership only if the du- E ration is to the benefit of the minbr. Clause 10 enables the guardian to accept the benefits of partnership under these terms or under such other terms as may be determined. If the terms determined in future are similar, no objection can be taken; if on the other hand the terms determined later are in contravention of law, the partnership deed will be held to be bad. Clause 11 has refe- F rence to the manner of keeping acclmnts and a guardian is entitled to assent to the mode of keeping accounts.\n\nIn our opinion, the partnership deed, reasonably construed, only confers benefits of partnership on the two minors and does not make them full partners. The guardian has agreed to certain clauses in order to effectuate the decision of the major members to confer the benefits of the said partnership to the minors. Accordingly we hold that the Income Tax authorities should not have declined to register the firm. We may mention that the supplementary deed dated April 1, 1953, has not been included in the statement of the case, but it is common ground that nothing turns on H any bf the clauses in the supplementary deed.\n\nAccordingly, agreeing with the High Court; we hold that the firm is entitled to be registered under s. 26-A of the Income Tax Act, and the answer to the question referred is in the affirmative.\n\nThe appeals are dismissed with costs, one set of hearing fees.\n\nAppeals dismissed . •", "total_entities": 49, "entities": [{"text": "COMMISSIONER OF INCOME-TAX, BANGALORE", "label": "PETITIONER", "start_char": 0, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, BANGALORE", "offset_not_found": false}}, {"text": "v.\n\nSHAHMOHANDASSADHURAM\n", "label": "RESPONDENT", "start_char": 38, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "v.\n\nSHAHMOHANDASSADHURAM\n", "offset_not_found": false}}, {"text": "April 15, 1965", "label": "DATE", "start_char": 64, "end_char": 78, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF INCOME-TAX, BANGALORE v.\n\nSHAHMOHANDASSADHURAM\n\nApril 15, 1965\n\n(K. SUBBA RAO, J. C. SHAH AND S. M. SIKRI, JJ.]"}}, {"text": "K. SUBBA RAO, J.", "label": "JUDGE", "start_char": 81, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 98, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. M. SIKRI, JJ.", "label": "JUDGE", "start_char": 110, "end_char": 126, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Indian Income-tax Act", "label": "STATUTE", "start_char": 129, "end_char": 150, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 165, "end_char": 171, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-tax Act", "statute": "Indian Income-tax Act"}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 340, "end_char": 346, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-tax Act", "statute": "Indian Income-tax Act"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 1330, "end_char": 1344, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "N. D. Karkhanis", "label": "LAWYER", "start_char": 2225, "end_char": 2240, "source": "ner", "metadata": {"in_sentence": "N. D. Karkhanis and R. N. Sachthey, for the appellant (in both the appeals)."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 2245, "end_char": 2259, "source": "ner", "metadata": {"in_sentence": "N. D. Karkhanis and R. N. Sachthey, for the appellant (in both the appeals)."}}, {"text": "R. Ganapathy Iyer", "label": "LAWYER", "start_char": 2303, "end_char": 2320, "source": "ner", "metadata": {"in_sentence": "R. Ganapathy Iyer, for the respondent (in both the appeal!l)."}}, {"text": "A\n\nSikri", "label": "JUDGE", "start_char": 2455, "end_char": 2463, "source": "ner", "metadata": {"in_sentence": "R.\n\nThe Judgment of the Court was delivered by A\n\nSikri, J. These two appeals pursuant to a certificate granted by the High Court of Mysore under s. 66-A(2) of the Income-tax Act, 1922, are directed against its judgment answering the question referred tQ it in favour of the respondent-assessee."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 2554, "end_char": 2559, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 2572, "end_char": 2592, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 26", "label": "PROVISION", "start_char": 2811, "end_char": 2821, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Shah Mohandas Sadhuram", "label": "RESPONDENT", "start_char": 3075, "end_char": 3097, "source": "ner", "metadata": {"in_sentence": "The respondent, MI s Shah Mohandas Sadhuram, hereinafter referred to as the assessee, is a firm.", "canonical_name": "v.\n\nSHAHMOHANDASSADHURAM\n"}}, {"text": "s. 26", "label": "PROVISION", "start_char": 3191, "end_char": 3196, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "31-3-1952", "label": "DATE", "start_char": 3596, "end_char": 3605, "source": "ner", "metadata": {"in_sentence": "The Partnership Deed first describes the parties and then recites:\n\n\"Whereof the above four members were till this day members of a Joint Family, whereof yesterday that is on 31-3-1952 the said four members have 'tlecome divided not only in interest but also by metes and bounds, each E of the said members taking to his share one fourth (! /"}}, {"text": "Seth Mohandas Sadhuram", "label": "OTHER_PERSON", "start_char": 3886, "end_char": 3908, "source": "ner", "metadata": {"in_sentence": "4) of the said joint family assets and liabilities as detailed in the books of account as maintained by the fim1 known as Seth Mohandas Sadhuram and whereof we the first and second members have decided to constitute all the said four members as a partnership admitting the F third and fourth members thereof to the benefits of the said partnership but not to the liabilities thereunder\". ·"}}, {"text": "Atmaram", "label": "OTHER_PERSON", "start_char": 4215, "end_char": 4222, "source": "ner", "metadata": {"in_sentence": "The first and second members referred to in the recital are Atmaram and Doulatram, both majors."}}, {"text": "Doulatram", "label": "OTHER_PERSON", "start_char": 4227, "end_char": 4236, "source": "ner", "metadata": {"in_sentence": "The first and second members referred to in the recital are Atmaram and Doulatram, both majors."}}, {"text": "Vijaya Automobiles, Mysore", "label": "ORG", "start_char": 4614, "end_char": 4640, "source": "ner", "metadata": {"in_sentence": "The Automobiles business having been started by the said first and H second members under the name and style of Vijaya Automobiles, Mysore, when they were members of the\n\nsaid joint family as a partnership venture apart from the said family, it is agreed between us now that the said Automobiles business shall hereafter be continued to be done under the name and style of Vijaya Automobiles as part of the said firm."}}, {"text": "Vijaya Automobiles", "label": "ORG", "start_char": 4875, "end_char": 4893, "source": "ner", "metadata": {"in_sentence": "The Automobiles business having been started by the said first and H second members under the name and style of Vijaya Automobiles, Mysore, when they were members of the\n\nsaid joint family as a partnership venture apart from the said family, it is agreed between us now that the said Automobiles business shall hereafter be continued to be done under the name and style of Vijaya Automobiles as part of the said firm."}}, {"text": "C.J.T. V.\n\nSHAH MOHANDAS", "label": "JUDGE", "start_char": 4921, "end_char": 4945, "source": "ner", "metadata": {"in_sentence": "C.J.T. V.\n\nSHAH MOHANDAS (Sikri, J.)\n\n(7) It is agreed that the capital contribution of each member will be equal and the accounts to be maintained to indicate the said capital contribution, will show what each member has so contributed in the personal capital ledger account."}}, {"text": "!st of April, 1952", "label": "DATE", "start_char": 6050, "end_char": 6068, "source": "ner", "metadata": {"in_sentence": "(I 0) It is agreed that the duration of this partnership will be for a period of one year, i.e. from !"}}, {"text": "31st March, 1953", "label": "DATE", "start_char": 6072, "end_char": 6088, "source": "ner", "metadata": {"in_sentence": "st of April, 1952 to 31st March, 1953, and the members might agree to continue the said partnership even thereafter under these terms or on terms to be determined then."}}, {"text": "Bombay", "label": "GPE", "start_char": 6274, "end_char": 6280, "source": "ner", "metadata": {"in_sentence": "(11) It is agreed that the profits and losses of the Bombay branch and other branches if any outside the State of\n\nMysore will be credited or debited separately in the books of account of these branches and final allocation made in those books of account."}}, {"text": "Mysore", "label": "GPE", "start_char": 6336, "end_char": 6342, "source": "ner", "metadata": {"in_sentence": "(11) It is agreed that the profits and losses of the Bombay branch and other branches if any outside the State of\n\nMysore will be credited or debited separately in the books of account of these branches and final allocation made in those books of account."}}, {"text": "1-4-1953", "label": "DATE", "start_char": 7266, "end_char": 7274, "source": "ner", "metadata": {"in_sentence": "For the assessment year 1954-55, he also rejected the application but added thi~ further ground that \"a supplementary deed of partnership extending the life of the partnership beyond 1-4-1953 for a further period at the will of the partners is filed."}}, {"text": "clause 10", "label": "PROVISION", "start_char": 7401, "end_char": 7410, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 7827, "end_char": 7844, "source": "ner", "metadata": {"in_sentence": "On further appeal, the Appellate Tribunal, following the decision of the Madras High Court in Jakka Devayya and Sons v.\n\nCommissioner of Income-tax, Madras(') construed the deed as B having admitted the minors only to the benefits of the partnership."}}, {"text": "Karkhanis", "label": "OTHER_PERSON", "start_char": 9010, "end_char": 9019, "source": "ner", "metadata": {"in_sentence": "E Mr. Karkhanis, the learned counsel for the appellant contends that on a proper construction of the deed it is clear that the minors have been made partners, and therefore the deed is not valid."}}, {"text": "s. 30", "label": "PROVISION", "start_char": 9814, "end_char": 9819, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Partnership Act", "label": "STATUTE", "start_char": 9827, "end_char": 9849, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Kantilal Kasherdeo", "label": "OTHER_PERSON", "start_char": 10180, "end_char": 10198, "source": "ner", "metadata": {"in_sentence": "But B the facts in that case were that in the instrument of partnership Kantilal Kasherdeo was described as a full partner entitled not only to a share in the profits but also liable to bear all the lossess including loss of capital."}}, {"text": ".I.T. V. SHAH llOHANDAS", "label": "JUDGE", "start_char": 10521, "end_char": 10544, "source": "ner", "metadata": {"in_sentence": "('.I.T. V. SHAH llOHANDAS (Sikri, J.) 775\n\nA were to attend to the business, and if consent was needed, aU the partners including the minor had to give their consent in writig."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 10880, "end_char": 10892, "source": "ner", "metadata": {"in_sentence": "As Hidayatullah J. observed, \"in short, no distinction was made between the ault B partner and the minor and to all intents and purposes, the mmor was a full partner, even though under the partnership law he could only be admitted to the benefits of the partnership and not as a partner\"."}}, {"text": "s. 30", "label": "PROVISION", "start_char": 11602, "end_char": 11607, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 11690, "end_char": 11695, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 48", "label": "PROVISION", "start_char": 11913, "end_char": 11918, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 4", "label": "PROVISION", "start_char": 14102, "end_char": 14110, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 7", "label": "PROVISION", "start_char": 14319, "end_char": 14327, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 10", "label": "PROVISION", "start_char": 14844, "end_char": 14853, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 10", "label": "PROVISION", "start_char": 15332, "end_char": 15341, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 11", "label": "PROVISION", "start_char": 15663, "end_char": 15672, "source": "regex", "metadata": {"statute": null}}, {"text": "April 1, 1953", "label": "DATE", "start_char": 16259, "end_char": 16272, "source": "ner", "metadata": {"in_sentence": "We may mention that the supplementary deed dated April 1, 1953, has not been included in the statement of the case, but it is common ground that nothing turns on H any bf the clauses in the supplementary deed."}}, {"text": "s. 26", "label": "PROVISION", "start_char": 16521, "end_char": 16526, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_777_785_EN", "year": 1965, "text": "NARAYANDAS SHREERAM SOMANI\n\nTHE SANGLI BANK LTD. (With connected appeal)\n\nMarch 15, 1965\n\n[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]\n\nC Indian Companies Act (Act 7 of 1931), s. 91B(l)-Director interested in a!l-Otmeret of share~ Taking part in meeting-Effect.\n\nIndian Contract Act (9 of 1872), s. 50, I!!us. (a)-Advance of !oan-Tf could be by entries in accounts.\n\nThe respondent-Bank was unatle to carry on business ilfter it was promoted, in view of s. 277 (1) of the Companies Act, 1•13, be- D cause its ; mbscribed capital was less than half the authorised capital. In order to comply with .the requiremeIJ\\s of the section, the directors decided that they or their nominee~ would subscibe for a large number of shares. The first appellant was a director of the Bank and the se.cond appellant was the firm of the first appellant and his brother. The first appellant, decided to subscribe for 2000\n\nshares in the names of 3 ladies of his family, and the allotments of shares were made at a meeting of directors at which the first ap- E pellant also voted. At that meeting and subsequently various loans were advanced to the second appellant. A sum of Rs. 100,000 which was shown as a loan to the brother was later on adjusted by crediting his account with that item and debiting the account of the first appellant with that amount. The first appellant executed a promissory note and a letter of pledge for the amount, andi the brother paid\n\nF off the balance due from him after giving effect to the credit entry, and that loan account was closed. Suits were filed by the respondent e.gainst the appellants for realization of the sums due from them. The trial Court dismissed the suits but the High Court decreed them.\n\nIn their appeals to this Court the appellants contended inter a!ia that: (i) if the vote of the first appellant be not counted as required G by s. 91B(l) of the Act because of his interestedness in the allotment, there would be no quorum for tI:>e meeting and therefore the allotment of shares to the nominees of the first appellant would be invalid, and as the consideration for the shares was paid out of the loans, the appellants would not be liable to repay those loans; (ii) since no cash amount was paid and no loan advanced by the respondent to the first appellant the suit to recover the sum of Rs. 100,000 H as a loan was not maintainable.\n\nHELD: (i) The allotment of the shares at the meeting, to the nominees of the first appellant was not void. In view of the fact that the first appellant was not entitled to vote on the allotment and after the exclusion of his vote there was no quorum, the allotment was icregular and the respondent was entitled to avoid it But. instead of avoiding the allotment the respondent has chosen to affirm it and so the allotment is valid and binding on the allottees. [783 E]\n\nIUPRRKE\n\nCOYRT RiPoKTS\n\n(1965) 3 8.C.R.\n\nMoreover, the first appellant was a party to the .resolution allot- A ting shares and dealt with the shares on the footing that the allottees were the holders with a clear knowledge of all circumstances, and therefore, was estopped from contending that the allotment was invalid. (783 F-G]\n\n(ii) To support a plea of payment, it is not necessary to show that cash passed. Illustration (a) to s. 50 of the Indian Contract Act, 1872.\n\nshow~ that payment may be made by means of transfer entries in books of account. [784 E]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 801 and 802 of 1962.\n\nAppeals from the judgment and decree dated August 11,1960 C of the Bombay High Court in first Appeals Nos. 819, 8?0 of 1955.\n\nPurshottam Trikamdas, V. !. Jhaveri and S. N. And/ey for the appellants (in both the appeals). ·\n\nK . .H. Bhabha, Iqbal Chagla and !. B. Dadachanji, for the D respondent (in both the appeals).\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. The Bank of Poona Ltd., (hereinafter referred to as the Company) now amalgamated with the Sangli Bank, Ltd. E was incorporated in 1945. The Company was promoted by N. G.\n\nParulekar and Murlidhar Chaturbhuj Loya. The authorised capital of the Company was Rupees fifty lakhs divided into 50,000 ordinary shares of Rs. 100/· each. By the end of April, 1946, the Company was able to find subscribers for 4,860 shares only. In view of s. 277(1) of the Indian Companies Act, 1913, the Com- F pany was unable to carry on business unless the subscribed capi ta! was not less than half the authorised capital. In order to comply with the requirements of s. 277(1); the directors of the Com pany decided that they or their nominees would subscribe for large number of shares. Narayandas Shriram Somani was one of the directors of the Company. Ramnath Shriram Somani is his G brother. They carried. on business in the name. of Ramkisan Ramratan Somani. Jivanbai is the mother of Narayandas and Ramnath Goverjabai is the wife of Narayandas, and Kamalabai is the wife of Ramnath. Narayandas decided to subscribe for 2000 shares in the names of the three ladies. At a meeting held on May 25, 1946, the board of directors of the Company allotted 500 shares to Gov- B erjabai, 500 shares to Kamalabai and 1000 shares to Jivanbai against three separate applications for shares signed by them. The applications were accompanied by three separate hundis dated May 25, 1946 for Rs. 25.000, Rs. 12,500 and Rs. 12,500 drawn by Narayandas in favour of the Company. The meeting of May 25, 1946 was attended by three directors, Murlidhar Loya, D. R. Nayak and Narayandas. At that meeting. the directors also sanctioned a\n\nA loan of Rs. 60,000 to Ramnath. On May 28, 1946, Ramnath obtained from the Company the loan of Rs. 60,000 against his promissory note, and a separate loan account No. l / 18 was opened in his name in the books of the Company. The three hundis were honoured on May 29, 1946. The directors of the Company at a meet- B ing held on June 8, 1946 resolved to give an overdraft of Rs. 40,000\n\nto Ramnath. A separate overdraft account L.A. IC No. 71 in the name of Ramnath was opened in the books of the Company, and Ramnath obtained the sanctioned overdraft by a cheque dated June 27, 1946 for Rs. 15,000/- and another cheque dated June 29, 1946 for Rs. 25,000. The balance of the application and allot- C ment moneys amounting to Rs. 12,500, Rs. 12,500 and Rs. 25,000 in respect of the shares of Goverjabai, Kamalabai and Jivanbai were paid to the Company on June 22, June 28 and June 29 respectively. There is reason to believe that the subscription of the 2000 shares was financed by the advances to Ramnath.\n\nOn December 28, 1948, Ramnath was indebted to the Company in his loan account for Rs. 65,743-6-6 and in his overdraft account for Rs. 41,909-10-0. On that date, both accounts were closed, and a new loan account No. 9 with a debit of Rs. 1,09,500/- was opened in the name of Ramnath, who executed a promissory note. The Reserve Bank of India was pressing the Company to take steps in respect of the advances to Ramnath. In these circumstances, Ramnath repaid to the Company Rs. 18,500 /- on December 29, 1950 and Rs. 1,500/- on January 2, 1951. At the same time, on January 6, 1951, the Company gave a new loan of Rs. 20,000 /- to Ramkisan Ramratan Somani and Ramnath, and the borrowers executed a joint and several promissory note in fa- F vour. of the Company for the sum of Rs. 20,000/-. In respect of this loan, a separate loan account was opened in the books of the Company. In his loan account No. 9, Ramnath repaid Rs. 1,00,000/- on December 27, 1951 and Rs. 4,198-8-0 on December 29, 1951, and as a result of the last payment, the account was closed. The above sum of Rs. 1,00,000/- was paid on behalf of Ramnath by Narayan- G das, who on the same date obtained a loan of Rs. 1,00,000 /- from the Comgany. On the same date, Narayandas executed a promissory note for the sum of Rs. 1,00.000 /-, a letter of pledge and trust receipt in respect of cloth, saris etc., valued at Rs. 1,50,000/-, and a separate loan account No. 6/ 184 in his name was opened in the books l'lf the Company.\n\nH In spite of demands, the Company was unable to realise its dues in respect of the outstanding loans. On March 18, 1954, the Company instituted Special Suit No. 39 of 1954 in the Court of the Civil Judge, .Senior Division of Poona, against Ramki'san Ramratan Somani and Ramnath for the recovery of Rs. 22,964-13-0 due from them in respect of their loan account and the promissory note dated January 6, 1051. The suit was dismissed by the trial .JP{N)5SC1-· 1 l\n\nCourt on April 23, 1955, but in First Appeal No. 819 of 1955 pre- A ferred by the Company, the High Court decreed the suit. Civil Appeal No. 801 of 1962 arises out of this claim. On April 24, 1954, the Company instituted Special Suit No. 78 of 1954 in the Court of the Civil Judge, Senior Division, Poona against Narayandas for the recovery of Rs. 1,09,099-14-4 due from him in respect of the loan account No. 6/ 184 and the promissory note dated December B 27, 1951. On April 23, 1955, the trial Court dismissed the suit, but in First Appeal No. 820 of 1955 preferred by the Company, the High Court decreed the suit. Civil Appeal No. 802 of 1962 arises out of this claim.\n\nOn behalf of the appellants, Mr.\n\nPurushottam Tricamdas C contended that the a!Iotment of the 2000 shares and the several loans in the names of Ramnath and Narayandas were not genuine transactions, and that the parties did not intend that the allottees would be the holders bf the shares or that Narayandas and Ramnath would be liable to repay the loans. It is to be noticed that the D plea that the allotment of the 2000 shares was not intended to be operative, was not sufficiently raised in the pleadings. Narayandas pleaded in his written statement that at the time of the purchase of the shares, Loya and Parulekat gave him and Ramnath the assurance that the sum of Rs. 1,00,000 /- required for the purchase of the shares would be paid by the Company on interest at 4! per cent E per annum and Loya and Parulekar would no.t demand and recover the amount but they would sell the shares and credit the amount of the sale proceeds towards the principal and interest in the loan account and would not allow Narayandas and Ramnath to suffer loss with regard thereto. Narayandas swore that it was agreed between him, Parulekar and Loya that he .would nominally take the 2000 shares which would be finally sold to others and he would F tie out of liability and he ; md Ramnath would not repay the loans nor take any benefit thereunder. He also suggested that he or Ramnath did not repay any moneys out of their own pocket, and all repayments in the accounts were made out of the moneys received by him from the Company. At the trial, the Company did not G examine either Loya or Parulekar. It may be that Loya and Parulekar gave some understanding to Narayandas with regard to the disposal of the shares, and in view of this understanding, they subsequently executed in. favour of Narayandas two letters dated December 27, 1951, whereby Parulekar agreed to buy from him 500 shares and Loya agreed to buy from him 800 shares. But these B assurances, if any, were given to Narayandas by Parulekar and Loya . in their individual capacity and not as directors of the Company.\n\nThere is no record of any assurance given on behalf of the Company to Narayandas in the minutes of the board meetings. Narayandas and his nominees, Goverjabai, Kamalabai and Jivanbai dealt with the shares on the footing that they were the owners of the shares. some of the shares were transferred to third parties under transfer\n\nA deeds executed by Jivanbai, and the sale proceeds were credited to the loan account of Narayandas. Jivanbai received from the Company all the 1000 shares allotted to her and executed a receipt dated February 25, 1953. Narayandas obtained from Loya and Parulekar written undertakings dated December 27, 1951 for the purchase of 800 and 500 shares respectively. By letter dated June 28, B 1954, Narayandas called upon Parulekar to fulfil his undertaking for the purchase of 500 shares. All these circumstances prove that the allotment of the 2000 shares was intended to be operative and the allottees were intended to be the holders of the shares. Ramnath out of his own funds paid several sums of money towards discharge of his indebtedness in the loan accounts.\n\nHe paid C Rs. 750.4-0 in the overdraft account towards interest on December 12, 1946 and Rs. 1,484-7-0 in the loan account No. 1/18 on April 21, 1947, and we are not satisfied that these sums were paid out of commission earned by Narayandas from the Company. Similarly, on December 29, 1951, he paid Rs. 4,198-8-0 in the loan account No. 9 and on January 4, 1954, Rs. 100 I - was paid by D Ramkisan Ramratan and Ramnath in their loan account. The loan accounts were secured by promissory notes. Moreover, the loan account of Narayandas was secured by a trust receipt and a letter of pledge. Even on March 3, 1953, Narayandas executed a letter in favour of the Company declaring that he held as security a stock of sarees valued at Rs. 1,50,000 /-. In respect t>f other E loan transactions, the Company charged the appellants interest at the rate of 6 per cent and those loans were repaid quickly. But the loan transactions in suit were intended to be of a more permanent nature, and in order to accommodate Narayandas and Ramnath, the Company agreed to charge interest at 4t per cent. We are F satisfied that the allotment of the 2000 shares was intended to be operative and the allottees became the owners of the shares. We are also satisfied that the loans to Ramnath and Narayandas. were intended to be operative, and the Company did not give any assurance to them that they would not be called upon to repay the loans.\n\nG The next contention of Mr. Purushottam Tricamdas arises in this way, Article 126 of the articles of association of the Company provides that the directors may determine the quorum necessary for the transaction of business, and unless and until otherwise determined, three directors shall be the quorum. The directors did B not make any other determination with regard to quorum, and at all material times, a quorum of three was required for a directors' meeting. The board meeting of May 25, 1946 was attended by three directors only, namely, M. C. Loya, D. R. Nayak and Narayandas. At this meeting, the directors resolved to allot 2000 shares to the nominees of Narayandas. Narayandas was clearly interested in the allotment of the shares. Section 91B(l) of the Indian Companies Act, 1913 provided that \"No director shall, as a director,\n\nvote on any contract or arrangement in which he is either direct- A ly or indirectly concerned or interested nor shall his presence count for the purpose of forming. a quorum at the time of any such vote; and if he does so vote, the vote shall not be counted\".\n\nThe Poona Bank, Ltd. was a public company, and s. 91B(l) applied to its directors. Narayandas, therefore, ought not to have voted at the meeting of May 25, 1946. If his vote is excluded, there B was no quorum for the meeting.' Mr. Purushottam Tricamdas, therefore. contended that the allotment of 2000 shares to the nominees of Narayandas at this meeting was invalid and no title passed to the allottees in respect of the shares, and in the circumstances, there was a total failure of the consideration paid for the shares, and as the consideration was paid out of the loans, the ap- C pellants are not liable to repay the sam~.\n\nNow, a director of a company stands in a fiduciary position towards the company and is .bound to protect its interests. For long, it has been an established rule of equity that he must not place himself in a position in which his personal interest conflicts D with his duty, and unless authorised by the company's articles, he must not vote as a director on any contract or arrangement in which he is directly or indirectly interested. Standard articles give effect to this rule of equity. See Palmer's Company Precedents, 17th Edn, Part I, p. 553. If he votes in such a case, his vote would E not be counted, and his presence wouldnot count towards the quorum, that is to say, the minimum number fixed for the transaction of business by a board meeting, for a quorum must be a disinterested quorum, and must be comprised of directors• who are entitled to vote on the particular matter before the meeting. See In re. Yuill v. Greymouth Point Elizabeth Railway and Coal Company.\n\nF Limited('). If an interested director votes and without his vote being counted there is no quorum, the meeting is irregular, and the ' contract sanctioned at the meeting is vo'dable by the company against the director and any other contracting party who J:\\as notice of the irregularity, see Transvaal Lands Company v. New Belgium (Transvaal) Land and Development Company('); but the company G may waive the irregularity and affirm the transaction. The matter is put succinctly by Gore-Browne in Handbook on Joint Stock Companies, 41 st Edn., p. 363 thus:\n\n\"According to the well-established rule that an agent cannot act on behalf of his principal in a matter in which the agent has a conflicting interest or duty, directors are H µrecluded from taking part in any resolution under which they take a benefit or which adopts a contract that concerns them unless the Articles authorises their doing so. It must be here noted that if interested directors take part in any transaction there is an irregularity\n\n(') [1904] I Oh. 32. (') [1914] 2 Ch. 4\"88.\n\nNARAYANDAS v. BA1'K Ok' POONA (Bachawat, J.) i83\n\nwhich renders the transaction voidable by the company as against the directors and any persons who have knowledge of the facts\".\n\nSection 9 IB embodied the existing rule of equity in the form of a statutory provision. In Pratt (Bombay) Ltd. v. M. T. Ltd. and B Sassoon & Co. Ltd. v. Pratt (Bombay) Ltd.('), Sir George Rankin observed that the section is a concise statement of the general rule of equity explained in the Transvaal Lands Company's case('), and he pointed out that the impugned transactions on which the interested directors had voted, were voidable by the official liquidator of the company. The voting by the interested director, of- C itself, does not invalidate the contract. The effect of s. 91B is that the vote of the interested director must be excluded, and if as a result of such exclusion there is no quorum, the resolution sanctioning the contract is irregular and the contract is liable to be avoided by the company against the directors and any other contracting party having notice of the irregularity. Section 9 lB is D meant for the protection of the company, and the company may, if it chooses, waive the irregularity and affirm the contract.\n\nWe think that the allotment of the 2000 shares to the nominees of Narayandas in the meeting of the directors of the company held on May 25, 1946 was not void. Jn view of the fact that E Narayandas was not entitled to vote on the allotment and after exclusion of his vote there was no quorum, the allotment was irregular, and the Company was entitled to avoid the allotment. Instead of avoiding the allotment, the Company has chosen to affirm it. The allotment is, therefore, valid and binding on the allottees.\n\nF Moreover, Narayandas cannot be heard to say that there was no valid allotment of the shares. For the purpose of satisfying the requirement of s. 277(1) it was necessary to allot the shares, and he allowed the Company to commence business on the footing that the shares had been_ subscribed. He was a director of the Company and a party to the resolution allotting the shares. He dealt with G the shares on the footing that the allottees were the holders of the shares with a clear knowledge of the circumstances on which he might have founded his present objection. He cannot now be heard to say that he was interestoo in the allotment and could not vote. Like the director in York-Tramways Company v.\n\nWillows('), he is now estopped from contending that the allotment is invalid. For all these reasons, we hold that the allotment is valid, and there is no failure of consideration.\n\nIn the plaint in Suit No. 78 of 1954, the Company pleaded that on December 27, 1951 Narayandas took from it on loan a sum of\n\n(I) I.1.R. [1938] Born. 421. 1'1 [1914] 2 Ch. 488. 1'1 [18821 8 Q.B.ll. 685.\n\nSUPREME\n\nCOUIIT llllPOIITS [1965] 3 s.c.11.\n\nRs. l,00,000/- and executed an on-demand promissory note for A the amount. Mr. Purushc; ittam Tricamdas contended that, as a matter of fact, no cash amount was paid and no loan was advanced by the Company to Narayandas on December 27, 1951, and consequently, the suit as framed is not maintainable. Now, at the relevant time, Ramnath was indebted to the Company for Rs. 1,04,198/- in respect of loan account No. 9. On December 27, B 1951, at the request of Narayandas, the Company credited Ramnath with Rs. 1,00,000/- in his Joan account and debited Narayandas with Rs. 1,00,000 /- in a new loan account opened in his name. On the same date, Narayandas acknowledged in writing the receipt of Rs. 1,00,000/- and executed a promissory note for the amount in favour of the Company. Ramnath took full advantage C of the credit of Rs. 1,00,000 /- and on payment of the balance of Rs. 4,198-8-0 closed his loan account No: 9. Though no actual money passed, the two entries in the books of account amounted to .payment of Rs. 1,00,000/- by the Company to Narayandas by way of a loan and repayment of the same attrount by Narayandas to the Company towards discharge of the indebtedness of Ramnath ; n the D latter's loan account with the Company. The result was as if the Company had paid a sum of Rs. 1,00,000/- in cash to Narayandas and then Narayandas had returned the amount to the Company with instructions to credit it to Ramnath. To support a plea o' payment, it is not necessary to show that cash passed. Illustra- E ti m (a) to s. 50 of the Indian Contract Act, 1872 shows that payment may be made by means of transfer entries in books of account. The Company has sufficiently established a payment of Rs. 1,00,000/- by it to Narayandas by way of loan on December 27, 1951.\n\nMr. Purushottam Tricamdas contended that the loans to Na- F rayandas and Ramnath were financial assistance by the Company for the purpose of or in connection with the purchase of its shares by Narayandas or his nominees, and the loans being in contravention of s. 54A(2) of the Indian Companies Act, 1913 were illegal and could not be recovered. Mr. K. N. Bhabha contended G (I) that the appellants ought not to be allowed to take this new point in this appeal; (2) the lending of the money was a part of the ordinary business of a banking company and the loans to Ramnath and Narayandas were made by the Company in the course of its business; and (3) having regard to the decision in Re V.G.M.\n\nHoldings, Ltd('), the word \"purchase\" in s. 54A(2) did not include H the acquisition of shares by subscription or allotment, and in this case, the loans were given in connection with the acquisition by Narayandits or his nominees of shares by subscription.or allotment. and not in connection with acquisition of shares by purchase, and consequently, s. 54A(2) had no application. Now, it appears that in paragraph 15 of his written statement Narayandas pleaded that\n\n(') [1942] 1 All E.R. 234.\n\nA the advance of loans to him in connection with the purchase of shares was illegal, but no issue was raised on the question whether the loans were financial assistance in connection with the purchase of the shares and were in contravention of s. 54A(2). There is a passing reference to this contention in paragraph 15 of the judgment of the trial Court, but there is no reference to it in the judgment of B the High Court. We find also that this contention finds no place in the statement of the case filed on behalf of the appellants. Mr. Purushottam Tricamdas relied on ground No. 12 of the appellants statement of case, but, we think that this ground is wholly insufficient to raise this contention. In these circumstances, we think that it is c not open to the appellants to urge this contention, and we indicated this to Mr. Purushottam Tricamdas in the course of the argument.\n\nIn the Courts below, the appellants contended that Kama!abai was a minor, and, therefore, the allotment of 1000 shares to her was invalid. This contention is no longer pressed, and does not survive.\n\nD No other contentions were advanced before us.\n\nIn the result, the appeals are dismissed with costs, one hi:aring fee.\n\nAppeals dismissed.", "total_entities": 103, "entities": [{"text": "NARAYANDAS SHREERAM SOMANI", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "NARAYANDAS SHREERAM SOMANI", "offset_not_found": false}}, {"text": "THE SANGLI BANK LTD", "label": "RESPONDENT", "start_char": 28, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "THE SANGLI BANK LTD", "offset_not_found": false}}, {"text": "March 15, 1965", "label": "DATE", "start_char": 74, "end_char": 88, "source": "ner", "metadata": {"in_sentence": "With connected appeal)\n\nMarch 15, 1965\n\n[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]"}}, {"text": "A. K. SARKAR, J.", "label": "JUDGE", "start_char": 91, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR*", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 108, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ.", "label": "JUDGE", "start_char": 125, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Indian Companies Act", "label": "STATUTE", "start_char": 149, "end_char": 169, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 91B(l)", "label": "PROVISION", "start_char": 187, "end_char": 196, "source": "regex", "metadata": {"linked_statute_text": "Indian Companies Act", "statute": "Indian Companies Act"}}, {"text": "Indian Contract Act", "label": "STATUTE", "start_char": 274, "end_char": 293, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 50", "label": "PROVISION", "start_char": 307, "end_char": 312, "source": "regex", "metadata": {"linked_statute_text": "Indian Contract Act", "statute": "Indian Contract Act"}}, {"text": "s. 277", "label": "PROVISION", "start_char": 465, "end_char": 471, "source": "regex", "metadata": {"linked_statute_text": "Indian Contract Act", "statute": "Indian Contract Act"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 483, "end_char": 496, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 91B(l)", "label": "PROVISION", "start_char": 1879, "end_char": 1888, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 50", "label": "PROVISION", "start_char": 3288, "end_char": 3293, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Contract Act, 1872", "label": "STATUTE", "start_char": 3301, "end_char": 3326, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Purshottam Trikamdas", "label": "PETITIONER", "start_char": 3615, "end_char": 3635, "source": "ner", "metadata": {"in_sentence": "Purshottam Trikamdas, V. !.", "canonical_name": "Purushottam Tricamdas"}}, {"text": "V. !. Jhaveri", "label": "LAWYER", "start_char": 3637, "end_char": 3650, "source": "ner", "metadata": {"in_sentence": "Purshottam Trikamdas, V. !."}}, {"text": "S. N.", "label": "LAWYER", "start_char": 3655, "end_char": 3660, "source": "ner", "metadata": {"in_sentence": "Jhaveri and S. N. And/ey for the appellants (in both the appeals). ·"}}, {"text": "K . .H. Bhabha", "label": "LAWYER", "start_char": 3713, "end_char": 3727, "source": "ner", "metadata": {"in_sentence": "K ."}}, {"text": "Iqbal Chagla", "label": "LAWYER", "start_char": 3729, "end_char": 3741, "source": "ner", "metadata": {"in_sentence": ".H. Bhabha, Iqbal Chagla and !."}}, {"text": ". B. Dadachanji", "label": "LAWYER", "start_char": 3747, "end_char": 3762, "source": "ner", "metadata": {"in_sentence": ".H. Bhabha, Iqbal Chagla and !."}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 3853, "end_char": 3861, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBachawat, J. The Bank of Poona Ltd., (hereinafter referred to as the Company) now amalgamated with the Sangli Bank, Ltd. E was incorporated in 1945."}}, {"text": "Bank of Poona Ltd.", "label": "PETITIONER", "start_char": 3870, "end_char": 3888, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBachawat, J. The Bank of Poona Ltd., (hereinafter referred to as the Company) now amalgamated with the Sangli Bank, Ltd. E was incorporated in 1945."}}, {"text": "Sangli Bank, Ltd.", "label": "ORG", "start_char": 3956, "end_char": 3973, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBachawat, J. The Bank of Poona Ltd., (hereinafter referred to as the Company) now amalgamated with the Sangli Bank, Ltd. E was incorporated in 1945."}}, {"text": "N. G.\n\nParulekar", "label": "OTHER_PERSON", "start_char": 4030, "end_char": 4046, "source": "ner", "metadata": {"in_sentence": "The Company was promoted by N. G.\n\nParulekar and Murlidhar Chaturbhuj Loya."}}, {"text": "Murlidhar Chaturbhuj Loya", "label": "OTHER_PERSON", "start_char": 4051, "end_char": 4076, "source": "ner", "metadata": {"in_sentence": "The Company was promoted by N. G.\n\nParulekar and Murlidhar Chaturbhuj Loya."}}, {"text": "s. 277(1)", "label": "PROVISION", "start_char": 4296, "end_char": 4305, "source": "regex", "metadata": {"linked_statute_text": "the Indian Contract Act, 1872", "statute": "the Indian Contract Act, 1872"}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 4313, "end_char": 4339, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 277(1)", "label": "PROVISION", "start_char": 4511, "end_char": 4520, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "Narayandas Shriram Somani", "label": "PETITIONER", "start_char": 4632, "end_char": 4657, "source": "ner", "metadata": {"in_sentence": "Narayandas Shriram Somani was one of the directors of the Company.", "canonical_name": "NARAYANDAS SHREERAM SOMANI"}}, {"text": "Ramnath Shriram Somani", "label": "OTHER_PERSON", "start_char": 4699, "end_char": 4721, "source": "ner", "metadata": {"in_sentence": "Ramnath Shriram Somani is his G brother."}}, {"text": "Ramkisan Ramratan Somani", "label": "OTHER_PERSON", "start_char": 4782, "end_char": 4806, "source": "ner", "metadata": {"in_sentence": "of Ramkisan Ramratan Somani."}}, {"text": "Jivanbai", "label": "OTHER_PERSON", "start_char": 4808, "end_char": 4816, "source": "ner", "metadata": {"in_sentence": "Jivanbai is the mother of Narayandas and Ramnath Goverjabai is the wife of Narayandas, and Kamalabai is the wife of Ramnath."}}, {"text": "Narayandas", "label": "OTHER_PERSON", "start_char": 4834, "end_char": 4844, "source": "ner", "metadata": {"in_sentence": "Jivanbai is the mother of Narayandas and Ramnath Goverjabai is the wife of Narayandas, and Kamalabai is the wife of Ramnath.", "canonical_name": "Narayan- G das"}}, {"text": "Ramnath Goverjabai", "label": "OTHER_PERSON", "start_char": 4849, "end_char": 4867, "source": "ner", "metadata": {"in_sentence": "Jivanbai is the mother of Narayandas and Ramnath Goverjabai is the wife of Narayandas, and Kamalabai is the wife of Ramnath."}}, {"text": "Kamalabai", "label": "PETITIONER", "start_char": 4899, "end_char": 4908, "source": "ner", "metadata": {"in_sentence": "Jivanbai is the mother of Narayandas and Ramnath Goverjabai is the wife of Narayandas, and Kamalabai is the wife of Ramnath.", "canonical_name": "Kamalabai"}}, {"text": "Ramnath", "label": "OTHER_PERSON", "start_char": 4924, "end_char": 4931, "source": "ner", "metadata": {"in_sentence": "Jivanbai is the mother of Narayandas and Ramnath Goverjabai is the wife of Narayandas, and Kamalabai is the wife of Ramnath."}}, {"text": "May 25, 1946", "label": "DATE", "start_char": 5036, "end_char": 5048, "source": "ner", "metadata": {"in_sentence": "At a meeting held on May 25, 1946, the board of directors of the Company allotted 500 shares to Gov- B erjabai, 500 shares to Kamalabai and 1000 shares to Jivanbai against three separate applications for shares signed by them."}}, {"text": "Gov- B erjabai", "label": "OTHER_PERSON", "start_char": 5111, "end_char": 5125, "source": "ner", "metadata": {"in_sentence": "At a meeting held on May 25, 1946, the board of directors of the Company allotted 500 shares to Gov- B erjabai, 500 shares to Kamalabai and 1000 shares to Jivanbai against three separate applications for shares signed by them."}}, {"text": "Murlidhar Loya", "label": "OTHER_PERSON", "start_char": 5469, "end_char": 5483, "source": "ner", "metadata": {"in_sentence": "The meeting of May 25, 1946 was attended by three directors, Murlidhar Loya, D. R. Nayak and Narayandas."}}, {"text": "D. R. Nayak", "label": "OTHER_PERSON", "start_char": 5485, "end_char": 5496, "source": "ner", "metadata": {"in_sentence": "The meeting of May 25, 1946 was attended by three directors, Murlidhar Loya, D. R. Nayak and Narayandas."}}, {"text": "May 28, 1946", "label": "DATE", "start_char": 5599, "end_char": 5611, "source": "ner", "metadata": {"in_sentence": "On May 28, 1946, Ramnath obtained from the Company the loan of Rs."}}, {"text": "May 29, 1946", "label": "DATE", "start_char": 5824, "end_char": 5836, "source": "ner", "metadata": {"in_sentence": "The three hundis were honoured on May 29, 1946."}}, {"text": "June 8, 1946", "label": "DATE", "start_char": 5892, "end_char": 5904, "source": "ner", "metadata": {"in_sentence": "The directors of the Company at a meet- B ing held on June 8, 1946 resolved to give an overdraft of Rs."}}, {"text": "June 27, 1946", "label": "DATE", "start_char": 6133, "end_char": 6146, "source": "ner", "metadata": {"in_sentence": "71 in the name of Ramnath was opened in the books of the Company, and Ramnath obtained the sanctioned overdraft by a cheque dated June 27, 1946 for Rs."}}, {"text": "June 29, 1946", "label": "DATE", "start_char": 6189, "end_char": 6202, "source": "ner", "metadata": {"in_sentence": "15,000/- and another cheque dated June 29, 1946 for Rs."}}, {"text": "Goverjabai", "label": "OTHER_PERSON", "start_char": 6354, "end_char": 6364, "source": "ner", "metadata": {"in_sentence": "25,000 in respect of the shares of Goverjabai, Kamalabai and Jivanbai were paid to the Company on June 22, June 28 and June 29 respectively."}}, {"text": "June 22, June 28 and June 29", "label": "DATE", "start_char": 6417, "end_char": 6445, "source": "ner", "metadata": {"in_sentence": "25,000 in respect of the shares of Goverjabai, Kamalabai and Jivanbai were paid to the Company on June 22, June 28 and June 29 respectively."}}, {"text": "December 28, 1948", "label": "DATE", "start_char": 6573, "end_char": 6590, "source": "ner", "metadata": {"in_sentence": "On December 28, 1948, Ramnath was indebted to the Company in his loan account for Rs."}}, {"text": "Reserve Bank of India", "label": "ORG", "start_char": 6889, "end_char": 6910, "source": "ner", "metadata": {"in_sentence": "The Reserve Bank of India was pressing the Company to take steps in respect of the advances to Ramnath."}}, {"text": "December 29, 1950", "label": "DATE", "start_char": 7060, "end_char": 7077, "source": "ner", "metadata": {"in_sentence": "18,500 /- on December 29, 1950 and Rs."}}, {"text": "January 2, 1951", "label": "DATE", "start_char": 7097, "end_char": 7112, "source": "ner", "metadata": {"in_sentence": "1,500/- on January 2, 1951."}}, {"text": "January 6, 1951", "label": "DATE", "start_char": 7135, "end_char": 7150, "source": "ner", "metadata": {"in_sentence": "At the same time, on January 6, 1951, the Company gave a new loan of Rs."}}, {"text": "December 27, 1951", "label": "DATE", "start_char": 7509, "end_char": 7526, "source": "ner", "metadata": {"in_sentence": "1,00,000/- on December 27, 1951 and Rs."}}, {"text": "December 29, 1951", "label": "DATE", "start_char": 7548, "end_char": 7565, "source": "ner", "metadata": {"in_sentence": "4,198-8-0 on December 29, 1951, and as a result of the last payment, the account was closed."}}, {"text": "Narayan- G das", "label": "OTHER_PERSON", "start_char": 7693, "end_char": 7707, "source": "ner", "metadata": {"in_sentence": "1,00,000/- was paid on behalf of Ramnath by Narayan- G das, who on the same date obtained a loan of Rs.", "canonical_name": "Narayan- G das"}}, {"text": "March 18, 1954", "label": "DATE", "start_char": 8167, "end_char": 8181, "source": "ner", "metadata": {"in_sentence": "On March 18, 1954, the Company instituted Special Suit No."}}, {"text": "Ramki'san", "label": "OTHER_PERSON", "start_char": 8302, "end_char": 8311, "source": "ner", "metadata": {"in_sentence": "39 of 1954 in the Court of the Civil Judge, .Senior Division of Poona, against Ramki'san Ramratan Somani and Ramnath for the recovery of Rs."}}, {"text": "January 6, 1051", "label": "DATE", "start_char": 8453, "end_char": 8468, "source": "ner", "metadata": {"in_sentence": "22,964-13-0 due from them in respect of their loan account and the promissory note dated January 6, 1051."}}, {"text": "April 23, 1955", "label": "DATE", "start_char": 8533, "end_char": 8547, "source": "ner", "metadata": {"in_sentence": "The suit was dismissed by the trial .JP{N)5SC1-· 1 l\n\nCourt on April 23, 1955, but in First Appeal No."}}, {"text": "April 24, 1954", "label": "DATE", "start_char": 8706, "end_char": 8720, "source": "ner", "metadata": {"in_sentence": "On April 24, 1954, the Company instituted Special Suit No."}}, {"text": "Civil Judge, Senior Division, Poona", "label": "COURT", "start_char": 8793, "end_char": 8828, "source": "ner", "metadata": {"in_sentence": "78 of 1954 in the Court of the Civil Judge, Senior Division, Poona against Narayandas for the recovery of Rs."}}, {"text": "December B 27, 1951", "label": "DATE", "start_char": 8971, "end_char": 8990, "source": "ner", "metadata": {"in_sentence": "6/ 184 and the promissory note dated December B 27, 1951."}}, {"text": "Purushottam Tricamdas", "label": "PETITIONER", "start_char": 9232, "end_char": 9253, "source": "ner", "metadata": {"in_sentence": "On behalf of the appellants, Mr.\n\nPurushottam Tricamdas C contended that the a!Iotment of the 2000 shares and the several loans in the names of Ramnath and Narayandas were not genuine transactions, and that the parties did not intend that the allottees would be the holders bf the shares or that Narayandas and Ramnath would be liable to repay the loans.", "canonical_name": "Purushottam Tricamdas"}}, {"text": "Loya", "label": "OTHER_PERSON", "start_char": 9799, "end_char": 9803, "source": "ner", "metadata": {"in_sentence": "Narayandas pleaded in his written statement that at the time of the purchase of the shares, Loya and Parulekat gave him and Ramnath the assurance that the sum of Rs."}}, {"text": "Parulekat", "label": "OTHER_PERSON", "start_char": 9808, "end_char": 9817, "source": "ner", "metadata": {"in_sentence": "Narayandas pleaded in his written statement that at the time of the purchase of the shares, Loya and Parulekat gave him and Ramnath the assurance that the sum of Rs.", "canonical_name": "Parulekat"}}, {"text": "Parulekar", "label": "OTHER_PERSON", "start_char": 10006, "end_char": 10015, "source": "ner", "metadata": {"in_sentence": "per cent E per annum and Loya and Parulekar would no.t demand and recover the amount but they would sell the shares and credit the amount of the sale proceeds towards the principal and interest in the loan account and would not allow Narayandas and Ramnath to suffer loss with regard thereto.", "canonical_name": "Parulekat"}}, {"text": "February 25, 1953", "label": "DATE", "start_char": 11800, "end_char": 11817, "source": "ner", "metadata": {"in_sentence": "Jivanbai received from the Company all the 1000 shares allotted to her and executed a receipt dated February 25, 1953."}}, {"text": "June 28, B 1954", "label": "DATE", "start_char": 11977, "end_char": 11992, "source": "ner", "metadata": {"in_sentence": "By letter dated June 28, B 1954, Narayandas called upon Parulekar to fulfil his undertaking for the purchase of 500 shares."}}, {"text": "December 12, 1946", "label": "DATE", "start_char": 12431, "end_char": 12448, "source": "ner", "metadata": {"in_sentence": "750.4-0 in the overdraft account towards interest on December 12, 1946 and Rs."}}, {"text": "April 21, 1947", "label": "DATE", "start_char": 12499, "end_char": 12513, "source": "ner", "metadata": {"in_sentence": "1/18 on April 21, 1947, and we are not satisfied that these sums were paid out of commission earned by Narayandas from the Company."}}, {"text": "January 4, 1954", "label": "DATE", "start_char": 12711, "end_char": 12726, "source": "ner", "metadata": {"in_sentence": "9 and on January 4, 1954, Rs."}}, {"text": "D Ramkisan Ramratan", "label": "OTHER_PERSON", "start_char": 12752, "end_char": 12771, "source": "ner", "metadata": {"in_sentence": "100 I - was paid by D Ramkisan Ramratan and Ramnath in their loan account."}}, {"text": "March 3, 1953", "label": "DATE", "start_char": 12963, "end_char": 12976, "source": "ner", "metadata": {"in_sentence": "Even on March 3, 1953, Narayandas executed a letter in favour of the Company declaring that he held as security a stock of sarees valued at Rs."}}, {"text": "Article 126", "label": "PROVISION", "start_char": 13859, "end_char": 13870, "source": "regex", "metadata": {"statute": null}}, {"text": "M. C. Loya", "label": "OTHER_PERSON", "start_char": 14333, "end_char": 14343, "source": "ner", "metadata": {"in_sentence": "The board meeting of May 25, 1946 was attended by three directors only, namely, M. C. Loya, D. R. Nayak and Narayandas."}}, {"text": "Section 91B(l)", "label": "PROVISION", "start_char": 14531, "end_char": 14545, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 14553, "end_char": 14579, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Poona Bank, Ltd.", "label": "ORG", "start_char": 14896, "end_char": 14912, "source": "ner", "metadata": {"in_sentence": "The Poona Bank, Ltd. was a public company, and s. 91B(l) applied to its directors."}}, {"text": "s. 91B(l)", "label": "PROVISION", "start_char": 14939, "end_char": 14948, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "Palmer", "label": "OTHER_PERSON", "start_char": 16016, "end_char": 16022, "source": "ner", "metadata": {"in_sentence": "See Palmer's Company Precedents, 17th Edn, Part I, p. 553."}}, {"text": "Gore-Browne", "label": "OTHER_PERSON", "start_char": 16984, "end_char": 16995, "source": "ner", "metadata": {"in_sentence": "The matter is put succinctly by Gore-Browne in Handbook on Joint Stock Companies, 41 st Edn.,"}}, {"text": "Section 9", "label": "PROVISION", "start_char": 17736, "end_char": 17745, "source": "regex", "metadata": {"statute": null}}, {"text": "George Rankin", "label": "OTHER_PERSON", "start_char": 17917, "end_char": 17930, "source": "ner", "metadata": {"in_sentence": "In Pratt (Bombay) Ltd. v. M. T. Ltd. and B Sassoon & Co. Ltd. v. Pratt (Bombay) Ltd.('), Sir George Rankin observed that the section is a concise statement of the general rule of equity explained in the Transvaal Lands Company's case('), and he pointed out that the impugned transactions on which the interested directors had voted, were voidable by the official liquidator of the company."}}, {"text": "Transvaal Lands Company", "label": "ORG", "start_char": 18027, "end_char": 18050, "source": "ner", "metadata": {"in_sentence": "In Pratt (Bombay) Ltd. v. M. T. Ltd. and B Sassoon & Co. Ltd. v. Pratt (Bombay) Ltd.('), Sir George Rankin observed that the section is a concise statement of the general rule of equity explained in the Transvaal Lands Company's case('), and he pointed out that the impugned transactions on which the interested directors had voted, were voidable by the official liquidator of the company."}}, {"text": "s. 91B", "label": "PROVISION", "start_char": 18315, "end_char": 18321, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9", "label": "PROVISION", "start_char": 18639, "end_char": 18648, "source": "regex", "metadata": {"statute": null}}, {"text": "E Narayandas", "label": "OTHER_PERSON", "start_char": 18967, "end_char": 18979, "source": "ner", "metadata": {"in_sentence": "Jn view of the fact that E Narayandas was not entitled to vote on the allotment and after exclusion of his vote there was no quorum, the allotment was irregular, and the Company was entitled to avoid the allotment.", "canonical_name": "Narayan- G das"}}, {"text": "s. 277(1)", "label": "PROVISION", "start_char": 19439, "end_char": 19448, "source": "regex", "metadata": {"statute": null}}, {"text": "Purushc", "label": "OTHER_PERSON", "start_char": 20509, "end_char": 20516, "source": "ner", "metadata": {"in_sentence": "Mr. Purushc; ittam Tricamdas contended that, as a matter of fact, no cash amount was paid and no loan was advanced by the Company to Narayandas on December 27, 1951, and consequently, the suit as framed is not maintainable."}}, {"text": "ittam Tricamdas", "label": "OTHER_PERSON", "start_char": 20518, "end_char": 20533, "source": "ner", "metadata": {"in_sentence": "Mr. Purushc; ittam Tricamdas contended that, as a matter of fact, no cash amount was paid and no loan was advanced by the Company to Narayandas on December 27, 1951, and consequently, the suit as framed is not maintainable."}}, {"text": "December 27, B 1951", "label": "DATE", "start_char": 20848, "end_char": 20867, "source": "ner", "metadata": {"in_sentence": "On December 27, B 1951, at the request of Narayandas, the Company credited Ramnath with Rs."}}, {"text": "s. 50", "label": "PROVISION", "start_char": 21959, "end_char": 21964, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Contract Act, 1872", "label": "STATUTE", "start_char": 21972, "end_char": 21997, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Na- F rayandas", "label": "OTHER_PERSON", "start_char": 22260, "end_char": 22274, "source": "ner", "metadata": {"in_sentence": "Mr. Purushottam Tricamdas contended that the loans to Na- F rayandas and Ramnath were financial assistance by the Company for the purpose of or in connection with the purchase of its shares by Narayandas or his nominees, and the loans being in contravention of s. 54A(2) of the Indian Companies Act, 1913 were illegal and could not be recovered.", "canonical_name": "Narayan- G das"}}, {"text": "s. 54A(2)", "label": "PROVISION", "start_char": 22467, "end_char": 22476, "source": "regex", "metadata": {"linked_statute_text": "the Indian Contract Act, 1872", "statute": "the Indian Contract Act, 1872"}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 22484, "end_char": 22510, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "K. N. Bhabha", "label": "OTHER_PERSON", "start_char": 22556, "end_char": 22568, "source": "ner", "metadata": {"in_sentence": "Mr. K. N. Bhabha contended G (I) that the appellants ought not to be allowed to take this new point in this appeal; (2) the lending of the money was a part of the ordinary business of a banking company and the loans to Ramnath and Narayandas were made by the Company in the course of its business; and (3) having regard to the decision in Re V.G.M.\n\nHoldings, Ltd('), the word \"purchase\" in s. 54A(2) did not include H the acquisition of shares by subscription or allotment, and in this case, the loans were given in connection with the acquisition by Narayandits or his nominees of shares by subscription.or allotment."}}, {"text": "s. 54A(2)", "label": "PROVISION", "start_char": 22943, "end_char": 22952, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "Narayandits", "label": "OTHER_PERSON", "start_char": 23104, "end_char": 23115, "source": "ner", "metadata": {"in_sentence": "Mr. K. N. Bhabha contended G (I) that the appellants ought not to be allowed to take this new point in this appeal; (2) the lending of the money was a part of the ordinary business of a banking company and the loans to Ramnath and Narayandas were made by the Company in the course of its business; and (3) having regard to the decision in Re V.G.M.\n\nHoldings, Ltd('), the word \"purchase\" in s. 54A(2) did not include H the acquisition of shares by subscription or allotment, and in this case, the loans were given in connection with the acquisition by Narayandits or his nominees of shares by subscription.or allotment.", "canonical_name": "Narayan- G das"}}, {"text": "s. 54A(2)", "label": "PROVISION", "start_char": 23252, "end_char": 23261, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "s. 54A(2)", "label": "PROVISION", "start_char": 23641, "end_char": 23650, "source": "regex", "metadata": {"statute": null}}, {"text": "Kama!abai", "label": "PETITIONER", "start_char": 24333, "end_char": 24342, "source": "ner", "metadata": {"in_sentence": "In the Courts below, the appellants contended that Kama!abai was a minor, and, therefore, the allotment of 1000 shares to her was invalid.", "canonical_name": "Kamalabai"}}]}
{"document_id": "1965_3_786_792_EN", "year": 1965, "text": "THE MADHYA PRADESH STATE ROAD TRANSPORT\n\nCORPORATION\n\nmE REGIONAL TRANSPORT AUmORITY, RAIPUR B\n\nApril 15, 1965 IP. B. GAJENDRAGADKAR, c. J., K. N. WANCHOO, M. HIDAYATULLAH\n\nAND V. RAMASWAMI, JJ.]\n\nMotor Vehicles Act, (4 of 1939), s. 62--Scope of. c\n\nIn February, 1963, the first respondent, Regional Transport Authority, granted a permit to the third respondent for running a town bus service in Raipur, but as the latter was unable to pUt the service into operation, the permit was revoked in September,· 1964.\n\nThereafter, the first respondent granted a temporary permit to the appellant for a period of two months and in November, 1964 pending D the grant of a permit for permanent regular operations, granted a :; econd temporary permit to the appellant for four months.\n\nThe third respondent thereupon filed a petition in the High Court for a writ of certiorari to quash the order of the first respondent granting a temporary permit to the appellant on the ground, inter atia, that such grant was in violation of s. 62 of the Motor Vehicles E Act. The High Court allowed the petition, being of the view that a temporary permit could not be granted for any route when there was a permanent need for providing transport facilities on that route and it had been decided to invite applications for that purpose. In the appeal before this Court, it was a1so contended that the provision in s. 62 that a temporary permit could be granted for a period not \"in any case\" to exceed four months meant that under no circumstances could a temporary permit be granted on any route for more than a I' total period of four months.\n\nOn the other hand, it was the appellant's contention that in the -circumstances of the case~ there was a \"particular temporary need\"\n\nwithin the meaning of s. 62(c) and the High Court was in error in taking the view that whenever there was a permanent need, there could be no temporary need. •· G HELD: (i) The Regional Transport Authority was right as a matter of law in granting a temporary permit to the appellant under s. 62(c) of the Act in the circumstances of the case. [WOC]\n\nAfter the regular permit granted to the third respondent was <:ancelled, in view of a . shortage of transport vehicles on the route the Regional Transport Authority thought it fit to provide for this H temporary need until permanent regular operations could be introduced in accordance with the procedure prescribed in s. 57. There was no reason why the clause \"to meet a particular temporary need\" should be given any special or restricted meaning. There is no antithesis between a particular temporary need and a permanent need and it is manifest that these two kinds of need may co-exist on a particular ro11te. [789 G-HJ\n\n. '\n\n<ii) The words \"in any case\" in s. 62 do not mean \"in any circumstance\". The section means that at any one time the Transport Authority is not permitted to issue to any person a temporary permit for a period exceeding 4 months; but if the temporary need per sists then, except where an abuse of the power is shown, it would be permissible to grant a second temporary per.nm to .meet the temporacy need.\n\n[790 D-F) ·\n\nJairam Dass v. Regional Transport Authority, I.L.R. 1956 Rajasthan 1053; Chandi Praood Mahajan v. The Regional Transport Authority, Gauhati, I.L.R., 1952, Assam 9, approved.\n\nSri Rama Vilas Service Ltd. v. The Road Traffic Board, Madras, A.I.R., 1948 Madras 400, Balagangadharan v. Regional Transport Board, Quilon, A.LR., 1958, Kerala 144, Shah Transport Co., Chhindwara v. The State of Madhya Pradesh, A.LR., 1952 Nagpur 363, Mallasattawa v. The Chairman, Regiona1l Transport Authority, Bangalore, A.LR., 1959, Mysore 114, disapproved.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 243 of 1965.\n\nAppeal by special leave from the judgment and order dated January 13, 1965 of the Madhya Pradesh High Court in Misc.\n\nPetition No. 624 of 1964.\n\nS. V. Gupte, Solicitor-General, and 1. N. Shroff, for the appellant.\n\nA. G. Ratnaparkhi, for the respondent No. 3.\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J. This appeal raises an important question as to the scope and interpretation of s. 62(c) of the Motor Vehicles F Act and as to whether the appellant-The Madhya Pradesh State Road Transport Corporation-was entitle:l, in the circumstances of the case, to the grant of a temporary perm't for 4 months under s. 62(c) of the Motor Vehicles Act.\n\n' On November 27, 1962 applications were invited for a permit for running a town bus service in Raipur. On February 20, 1963 it was decided by the Regional Transport Authority to grant a permit Jor the service to the 3rd resP.ondent-Madhya Pradesh Transport Co. (Pvt.) Ltd\\,. Raipu; r-but the 3rd respondent did not produce buses of the required specifications for operating the service though several opportunities were given. The order granting the permit to the 3rd respondent was consequently revoked by the Regional Transport Authority on September 13, 1964. Shortly thereafter the Regional Transport Authority granted a temporary permit to the appellant for a period of two months i.e. from September 29, to November 28, 1964 in respect of the aforesaid bu11 service. By the order dated November 25, 1964 the Regional Transport Authority granted, another temporary permit for 4 months to the .appellant. The order of November 25, 1964 states:\n\n788 BUl'REME\n\nCOJJRT RBl'ORT!l\n\n(1965] 3 S.C.R.\n\n\"From the large number of letters from some responsible members of the public received with this application and the statistics of the traffic catered to by the buses operated by the Corporation, it is now clear that the public of Raipur is feeling the .need of the town bus operations.\n\nIt Iias been decided by this Authority separately that applications for regular operations on two routes actually operated temporarily with some extensions a.nd one additional route be invited. However, it has to be accepted that expectations of the public for these transport facilities at least on the existing two routes have been aroused and have created a particular need which has to be met temporarily till regular operations are introduced.\n\nThe restrictions put by the first proviso to s. 62 of the Motor Vehicles Act and which has been emphasized in the decision of their Lordships of the M.P. High Court in Shri Ram Khanna v. Ramgopal Satyanarain '(1961 M.P.L.J. notes 121) will not operate in sanctioning a further grant for a period of four months till nearly tl1e end of March when the academic year may end for a large number of students availing of this facility.\n\nA iem]:iJtary permit for a period of fout months from the date of ex¢ry, i.e., 28-11-1964, on the routes and timings covered by the previous order of grant dated 19-9-1964 is approved. This will stand cancelled if regular operations covering these routes are introduced in the meantime.\"\n\nThe 3rd respondent thereupon moved the High Court of Madhya Pradesh on December 19, 1.964 for grant of a writ of certiorari to F quash the order of the Regional Transport Authority granting temporary permits to the appellant for operating the bus servii:e.\n\nThe application was allowed by the High Court on January 13, 1965 and a writ in the nature of certiorari was issued quashing the order of the Regional Transport Authority dated November 25, 1964 by which a temporary permit was granted to the appellant.\n\nG The High Court took the view that a temporary permit cannot be granted for any route when there is a permanent need for providing transport facilities on that route and it has been decided to invite applications for that purpose. This appeal is brought, by special leave, by the Madhya Pradesh State Road Transport Cor- R\n\noration against the judgment of the High Court in th<; writ {'etiuon.\n\nSection 62 of the Motor Vehicles Act states:\n\n\"62. A Regional Tralllport Authority may without following the procedure laid down in section 57, grant permits, to be effective for a limited period not in any case,\n\n. t\n\nto exceed four months, to authorise the use of a transport vehicle temporarily-\n\n(a) for the conveyance of passengers on special cca sion such as to and from fairs and religious gatherings, or\n\n(bl for the purposes of a seasonal business, or\n\n(c) to meet a particular temporary need, or\n\n(d) pending decision on an application for the renewal of a permit; and may attach to any such permit any condition it thinks fit: Provided that a temporary permit under this section shall, in no case, be granted in respect of any route or area specified in an application for the grant of a new permit under section 46 or section 54 during the pendency of the application:\n\nProvided further that a temporary permit under this section shall. in no case, be granted more than once in respect of any route or area specified in an application for the renewal of a permit during the pendency of such. application for renewal.\"\n\nOn behalf of the appellant it was contended, in the first pface, that there was a particular temporary need for the provision of transport facilities and the High Court was erroneous in taking the view that whenever there was a permanent need there could be no temporary need, and so temporary permit could not be granted' under s. 62(c) of the Motor Vehicles Act. In our opinion, the argument put forward by the learned Solicitor-General on behalf of the appellant is well-founded and must be accepted as correct.\n\nIt appears from the order of the Regional Transport Authority G that after the regular permit granted to respondent No. 3 was cancelled there was a shortage of necessary number of transport vehicles on the route and the Regional Transport Authority thought it fit to provide for this temporary need until regular operations were introduced and regular permits were granted after following the procedure prescribed under s. 57 of the Motor Vehicles Act. Section\n\nH 62(c) of the Motor Vehicles Act states that the Regionat Transport Authority may grant a temporary permit \"to meet a particular temporary' need\" and we see no reason why this clause should be given any special or restricted meaning. There is no antithesis between a particular temporary need and a perma. nent need and it is manifest that these two kinds of need may coexist on a particular route. If, therefore, the Regional Transport Authority considered that, in the circumstances of the case, there\n\nSUPREME\n\nCOURT\n\nREPORTS ' [l961i] 3 s.c.a.\n\nwas a particular temporary need, and granted a temporary permit A to the api>ellant, the action of the 'Regional Transport Authority cannot be challenged as legally invalid. Reference may be made, in this connection, to s. 62(d) which contemplates that temporal)\"\n\npermits may be granted to authorise the use of a transport vehicle temporarily pending decision on an application for the renewal of a permit. This sub-section, therefore, contemplates that there may B exist a temporary need for transport facilities on a particular route even in case of permanent need for such facilities. We are accordingly of opinion that the Regional Transport Authority was right as a matter of law in granting a temporary permit to the appellant under s. \\62(c) of the Motor Vehicles Act in the circumstances of C . this case and the view expressed by the High Court is not correct.\n\nIt was also contended on behalf of respondent No. 3 by Mr.\n\nRatnaparkhi that, in any event, the Regional Transport Authority ought not to have granted a temporary permit for a total period exceeding the limit of 4 months. Learned Counsel placed reliance D on the words \"in any case\" appearing in s. 62 of the Motor Vehicles Act which has already been quoted. It was utged that the words \"in any case\" mean that under no circumstances a temporary permit can be granted on any route for more than a total period of 4 months. We are of opinion that the words \"in any case\" do not mean \"in any circumstance\". The section means that E at any one time the Regional Transport Authority is not permitted to issue to any person a temporary permit for a period exceeding 4 months, but if the temporary need persists, as, for example, where the formalities under s. 57 are not completed \\\\'.ithin a period of 4 months, it would, in our opinion, be permissible for the Regional Transport Authority to grant a second temporary permit in order p to meet the temporary need. We should, of course, make it clear that the Regional Transport Authordfy cannot abuse its power and go on granting temporary permits In quick succession and not take speedy action for completing the procedure under s. 57 of the Motor Vehicles Act. If upon the facts of any particular case it appears that the Regional Transport Authority is so abusing its G powers its action is liable to be corrected by grant of a writ, but where such abuse of power is not alleged or shown the mere fact that .the Regional Transport Authority has granted a temporary permit for a second time and the total duration of the two periods is more than 4 months, would not invalidate the second permit.\n\nWe accordingly reject the argument of learned Counsel for res- H pondent No. 3 on this point.\n\nWith regard to the construction of s. 62(c) of the Motor Vehicles Act there is divergencil of opinion among the various High Courts. In Jairam Dass v. Regional Transport Authority(')\n\n(1) I.L.R. rl956JRajasthan 1053,\n\nA it was held by the Rajasthan High Court that in a case where the Regional Transport Authority was of the view that the existing regular bus service was not sufficient to meet the traffic and decided to increase the number of regular buses plying on the route, it had the power to grant a temporary permit till the necessary formalities for increasmg the regular permits were B gone through and that thill would amount to a temporary need.\n\nThe same view has been taken by the Assam High Court in C handi\n\nPrasad Mahajan v. The Regional Transport Authority, Gauhati(') in which it was said that s. 62{c) of the Motor Vehicles Act is quite general in terms and is not restricted to an existing particular need but includes a particular temporary need created by the inability of government or an individual to provide transport immediately. A contrary view has been expressed by Madras High Court in Sri Rama Vilas Service Ltd. v. The Road Traffic Board, Madl'as,(') by Kerala High Court in Balagangadhamn v. Regional Tmnsport Board, Quilon,(') by Nagpur High Court in Shah Transport Co., Chhindwara v. The State of Madhya Pradesh,(') and by Mysore High Court in Mallasattappa v. The Chairman, Regional Transport Authority, Bangalore.(')\n\nFor the reasons already expressed, we hold that the view taken by the Rajasthan High Court in Jairam Dass v. Regional Transport Authority(') and the Assam High Court in Chandi Prasad Mahajan v. The Regional Transport Authority, Gauhati(') as to the interpretation and the effect of s. 62(c) of the Motor Vehicles Act is correct.\n\nIt was submitted on behalf of respondent No. 3 that the order of the Regional Transport Authority dated November 25, 1964 had already expired and the Regional Transport Authority had invited fresh applications for permanent permit by Gazette notification dated December 14, 1964. It was contended by Mr. Ratnaparkhi that any declaration that this Court may make with regard to the grant of temporary permit dated November 25, 1964 would be academic. But the Solicitor-General submitted on behalf of the appellant that it was necessary for this Court to declare the true position in law, so that in consideration of fresh applications for a temporary permit in future no mistake may be made. The view taken by the High Court in the judgment under appeal would bind the Keg10nal Transport Authorities in the State unless it is set aside. We agree with the contention of Solicitor-General and con- H sider that, in the circumstances of this case, the question is not totally academic.\n\n(') I.L.R. [1952] A.,.am 9. (') A.LR. 1948 Madras 400.\n\n13) A.I.R. 1958 Kera.la 144.\n\n( 4) A.I.R. 1952 Nagpur 353.\n\n( 6) A.1.R. 1959 Mysore 114. (') I.L.R. [1956] R&jastban 1053.\n\nSUPREME\n\nCOURT RJllPORTS [1965J 3 s.c.R.\n\nWe accordingly allow this app.eai and set aside the order A passed by the High Court dated January 13, 1965 and declare that the order of the Regional Transport Authority dated November 25, 1964 granting a temporary permit to the appellant is legally valid. There will be no order with regard to costs of this appeal.\n\nAppeal allowed.", "total_entities": 67, "entities": [{"text": "THE MADHYA PRADESH STATE ROAD TRANSPORT\n\nCORPORATION", "label": "PETITIONER", "start_char": 0, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "THE MADHYA PRADESH STATE ROAD TRANSPORT CORPORATION", "offset_not_found": false}}, {"text": "mE REGIONAL TRANSPORT AUmORITY, RAIPUR B", "label": "RESPONDENT", "start_char": 54, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "THE REGIONAL TRANSPORT AUTHORITY, RAIPUR", "offset_not_found": false}}, {"text": "1965 IP. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 106, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 141, "end_char": 154, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 156, "end_char": 171, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 177, "end_char": 194, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 197, "end_char": 215, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 62", "label": "PROVISION", "start_char": 230, "end_char": 235, "source": "regex", "metadata": {"linked_statute_text": "Motor Vehicles Act", "statute": "Motor Vehicles Act"}}, {"text": "s. 62", "label": "PROVISION", "start_char": 1018, "end_char": 1023, "source": "regex", "metadata": {"linked_statute_text": "Motor Vehicles Act", "statute": "Motor Vehicles Act"}}, {"text": "s. 62", "label": "PROVISION", "start_char": 1390, "end_char": 1395, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62(c)", "label": "PROVISION", "start_char": 1778, "end_char": 1786, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62(c)", "label": "PROVISION", "start_char": 2045, "end_char": 2053, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57", "label": "PROVISION", "start_char": 2425, "end_char": 2430, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62", "label": "PROVISION", "start_char": 2769, "end_char": 2774, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3693, "end_char": 3721, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 3900, "end_char": 3911, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-General, and 1."}}, {"text": "N. Shroff", "label": "RESPONDENT", "start_char": 3939, "end_char": 3948, "source": "ner", "metadata": {"in_sentence": "N. Shroff, for the appellant."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 3970, "end_char": 3987, "source": "ner", "metadata": {"in_sentence": "A. G. Ratnaparkhi, for the respondent No."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 4060, "end_char": 4069, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. This appeal raises an important question as to the scope and interpretation of s. 62(c) of the Motor Vehicles F Act and as to whether the appellant-The Madhya Pradesh State Road Transport Corporation-was entitle:l, in the circumstances of the case, to the grant of a temporary perm't for 4 months under s. 62(c) of the Motor Vehicles Act."}}, {"text": "s. 62(c)", "label": "PROVISION", "start_char": 4153, "end_char": 4161, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh State Road Transport Corporation", "label": "PETITIONER", "start_char": 4226, "end_char": 4273, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. This appeal raises an important question as to the scope and interpretation of s. 62(c) of the Motor Vehicles F Act and as to whether the appellant-The Madhya Pradesh State Road Transport Corporation-was entitle:l, in the circumstances of the case, to the grant of a temporary perm't for 4 months under s. 62(c) of the Motor Vehicles Act."}}, {"text": "s. 62(c)", "label": "PROVISION", "start_char": 4377, "end_char": 4385, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 4393, "end_char": 4411, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "November 27, 1962", "label": "DATE", "start_char": 4419, "end_char": 4436, "source": "ner", "metadata": {"in_sentence": "' On November 27, 1962 applications were invited for a permit for running a town bus service in Raipur."}}, {"text": "Raipur", "label": "GPE", "start_char": 4510, "end_char": 4516, "source": "ner", "metadata": {"in_sentence": "' On November 27, 1962 applications were invited for a permit for running a town bus service in Raipur."}}, {"text": "February 20, 1963", "label": "DATE", "start_char": 4521, "end_char": 4538, "source": "ner", "metadata": {"in_sentence": "On February 20, 1963 it was decided by the Regional Transport Authority to grant a permit Jor the service to the 3rd resP.ondent-Madhya Pradesh Transport Co. (Pvt.)"}}, {"text": "Madhya Pradesh Transport Co. (Pvt.) Ltd\\", "label": "RESPONDENT", "start_char": 4647, "end_char": 4687, "source": "ner", "metadata": {"in_sentence": "On February 20, 1963 it was decided by the Regional Transport Authority to grant a permit Jor the service to the 3rd resP.ondent-Madhya Pradesh Transport Co. (Pvt.)"}}, {"text": "November 25, 1964", "label": "DATE", "start_char": 5207, "end_char": 5224, "source": "ner", "metadata": {"in_sentence": "By the order dated November 25, 1964 the Regional Transport Authority granted, another temporary permit for 4 months to the .appellant."}}, {"text": "s. 62", "label": "PROVISION", "start_char": 6196, "end_char": 6201, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 6209, "end_char": 6227, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "M.P. High Court", "label": "COURT", "start_char": 6300, "end_char": 6315, "source": "ner", "metadata": {"in_sentence": "The restrictions put by the first proviso to s. 62 of the Motor Vehicles Act and which has been emphasized in the decision of their Lordships of the M.P. High Court in Shri Ram Khanna v. Ramgopal Satyanarain '(1961 M.P.L.J. notes 121) will not operate in sanctioning a further grant for a period of four months till nearly tl1e end of March when the academic year may end for a large number of students availing of this facility."}}, {"text": "28-11-1964", "label": "DATE", "start_char": 6661, "end_char": 6671, "source": "ner", "metadata": {"in_sentence": "A iem]:iJtary permit for a period of fout months from the date of ex¢ry, i.e., 28-11-1964, on the routes and timings covered by the previous order of grant dated 19-9-1964 is approved."}}, {"text": "19-9-1964", "label": "DATE", "start_char": 6744, "end_char": 6753, "source": "ner", "metadata": {"in_sentence": "A iem]:iJtary permit for a period of fout months from the date of ex¢ry, i.e., 28-11-1964, on the routes and timings covered by the previous order of grant dated 19-9-1964 is approved."}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 6910, "end_char": 6938, "source": "ner", "metadata": {"in_sentence": "The 3rd respondent thereupon moved the High Court of Madhya Pradesh on December 19, 1.964 for grant of a writ of certiorari to F quash the order of the Regional Transport Authority granting temporary permits to the appellant for operating the bus servii:e.\n\nThe application was allowed by the High Court on January 13, 1965 and a writ in the nature of certiorari was issued quashing the order of the Regional Transport Authority dated November 25, 1964 by which a temporary permit was granted to the appellant."}}, {"text": "December 19, 1.964", "label": "DATE", "start_char": 6942, "end_char": 6960, "source": "ner", "metadata": {"in_sentence": "The 3rd respondent thereupon moved the High Court of Madhya Pradesh on December 19, 1.964 for grant of a writ of certiorari to F quash the order of the Regional Transport Authority granting temporary permits to the appellant for operating the bus servii:e.\n\nThe application was allowed by the High Court on January 13, 1965 and a writ in the nature of certiorari was issued quashing the order of the Regional Transport Authority dated November 25, 1964 by which a temporary permit was granted to the appellant."}}, {"text": "January 13, 1965", "label": "DATE", "start_char": 7178, "end_char": 7194, "source": "ner", "metadata": {"in_sentence": "The 3rd respondent thereupon moved the High Court of Madhya Pradesh on December 19, 1.964 for grant of a writ of certiorari to F quash the order of the Regional Transport Authority granting temporary permits to the appellant for operating the bus servii:e.\n\nThe application was allowed by the High Court on January 13, 1965 and a writ in the nature of certiorari was issued quashing the order of the Regional Transport Authority dated November 25, 1964 by which a temporary permit was granted to the appellant."}}, {"text": "Madhya Pradesh State Road Transport Cor- R", "label": "ORG", "start_char": 7664, "end_char": 7706, "source": "ner", "metadata": {"in_sentence": "This appeal is brought, by special leave, by the Madhya Pradesh State Road Transport Cor- R\n\noration against the judgment of the High Court in th<; writ {'etiuon."}}, {"text": "Section 62", "label": "PROVISION", "start_char": 7779, "end_char": 7789, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 7797, "end_char": 7815, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 57", "label": "PROVISION", "start_char": 7911, "end_char": 7921, "source": "regex", "metadata": {"statute": null}}, {"text": "section 46", "label": "PROVISION", "start_char": 8595, "end_char": 8605, "source": "regex", "metadata": {"statute": null}}, {"text": "section 54", "label": "PROVISION", "start_char": 8609, "end_char": 8619, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62(c)", "label": "PROVISION", "start_char": 9239, "end_char": 9247, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 9255, "end_char": 9273, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 57", "label": "PROVISION", "start_char": 9846, "end_char": 9851, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 9859, "end_char": 9877, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 9903, "end_char": 9921, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 62(d)", "label": "PROVISION", "start_char": 10658, "end_char": 10666, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 11195, "end_char": 11213, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ratnaparkhi", "label": "OTHER_PERSON", "start_char": 11370, "end_char": 11381, "source": "ner", "metadata": {"in_sentence": "3 by Mr.\n\nRatnaparkhi that, in any event, the Regional Transport Authority ought not to have granted a temporary permit for a total period exceeding the limit of 4 months."}}, {"text": "s. 62", "label": "PROVISION", "start_char": 11606, "end_char": 11611, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 11619, "end_char": 11637, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 57", "label": "PROVISION", "start_char": 12162, "end_char": 12167, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57", "label": "PROVISION", "start_char": 12586, "end_char": 12591, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 12599, "end_char": 12617, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 62(c)", "label": "PROVISION", "start_char": 13185, "end_char": 13193, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 13201, "end_char": 13219, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Rajasthan High Court", "label": "COURT", "start_char": 13389, "end_char": 13409, "source": "ner", "metadata": {"in_sentence": "In Jairam Dass v. Regional Transport Authority(')\n\n(1) I.L.R. rl956JRajasthan 1053,\n\nA it was held by the Rajasthan High Court that in a case where the Regional Transport Authority was of the view that the existing regular bus service was not sufficient to meet the traffic and decided to increase the number of regular buses plying on the route, it had the power to grant a temporary permit till the necessary formalities for increasmg the regular permits were B gone through and that thill would amount to a temporary need."}}, {"text": "Assam High Court", "label": "COURT", "start_char": 13846, "end_char": 13862, "source": "ner", "metadata": {"in_sentence": "The same view has been taken by the Assam High Court in C handi\n\nPrasad Mahajan v. The Regional Transport Authority, Gauhati(') in which it was said that s. 62{c) of the Motor Vehicles Act is quite general in terms and is not restricted to an existing particular need but includes a particular temporary need created by the inability of government or an individual to provide transport immediately."}}, {"text": "s. 62", "label": "PROVISION", "start_char": 13964, "end_char": 13969, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 13980, "end_char": 13998, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Madras High Court", "label": "COURT", "start_char": 14247, "end_char": 14264, "source": "ner", "metadata": {"in_sentence": "A contrary view has been expressed by Madras High Court in Sri Rama Vilas Service Ltd. v. The Road Traffic Board, Madl'as,(') by Kerala High Court in Balagangadhamn v. Regional Tmnsport Board, Quilon,(') by Nagpur High Court in Shah Transport Co., Chhindwara v. The State of Madhya Pradesh,(') and by Mysore High Court in Mallasattappa v. The Chairman, Regional Transport Authority, Bangalore.(')"}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 14510, "end_char": 14527, "source": "ner", "metadata": {"in_sentence": "A contrary view has been expressed by Madras High Court in Sri Rama Vilas Service Ltd. v. The Road Traffic Board, Madl'as,(') by Kerala High Court in Balagangadhamn v. Regional Tmnsport Board, Quilon,(') by Nagpur High Court in Shah Transport Co., Chhindwara v. The State of Madhya Pradesh,(') and by Mysore High Court in Mallasattappa v. The Chairman, Regional Transport Authority, Bangalore.(')"}}, {"text": "s. 62(c)", "label": "PROVISION", "start_char": 14889, "end_char": 14897, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 14905, "end_char": 14923, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "December 14, 1964", "label": "DATE", "start_char": 15198, "end_char": 15215, "source": "ner", "metadata": {"in_sentence": "3 that the order of the Regional Transport Authority dated November 25, 1964 had already expired and the Regional Transport Authority had invited fresh applications for permanent permit by Gazette notification dated December 14, 1964."}}, {"text": "A.I.R. 1958 Kera.la", "label": "RESPONDENT", "start_char": 15980, "end_char": 15999, "source": "ner", "metadata": {"in_sentence": "13) A.I.R. 1958 Kera.la 144."}}]}
{"document_id": "1965_3_78_85_EN", "year": 1965, "text": "H. K. CHOUDHURY, REGIONAL SETTLEMENT\n\nCOMMISSIONER\n\nSHRI ISSARDAS KUNDANMAL MOTIANI AND OTHERS\n\nFebruary 15, 1965\n\n[P.B. GAJENDRAGADKAR, C.J., M. HIDAYATULLAH, J.C. SHAH AND\n\nS.M. S!KRI, JJ.]\n\nDisplaced Persons (Compensation and RehabiMation) Rules, 1955, r.l!f-If applies to agricultural woperty.\n\nThe respondent who had a \"verified claim\" applied for compensation under the Displaced Persons (Compensation and Rehabilitation) Act, 1954. He alleged that he was a co-sharer along with his brothers in agricultural property in West Pakistan and claimed his share of the compensation. The Assistant Settlement Officer held that the alleged co-sharers were members of a joint Hindu, family and that the agricultural property was joint property. He then calculated the compensation on the joint property as per rr. 51 and 56 of the Displaced Persons (Compensation and Rehabilitation) Rules\n\n1955. The respondent thereupon filed a petition in the High Court under Arts. 226 and 227 of the Constitution contending that on the finding that the respondent and his brothers constituted a joint family, the unit for assessment of compensation should first be determined according to f. :!.~, which makes special provision for payment of coi;; npensation to joint families, before compensaton was calculated. The High Court allowed the petition.\n\nE In the appeal to this Court it was contended that r. 19 was inapplicable as that rule does not apply to agricultural land.\n\nHELD: The High Court was iight in holding that the rule applied to the claim of the respondent in respect of the agricultural land.\n\nChapter IV of the Rules in which r.19 occurs contains some F rules which apply to applications for compensation in respect of agricultural lands also. Therefore it cannot be said that the Chapter does not deal with agricultural lands at all. Each rule must be considered to see whether it has application to a claim for compensation in respect of agricultural land. So considered, there is no principle of construction by which the scope af'the general words in r. 19 could be limited, so as not to apply to agricultural land. Chapter G VIII of the Rules provides for compensation in respect of verified claims for agricultural lands in rural areas and only deals with how a unit that has been determined is to be compensated. There is nothing in that Chapter which modifies or overrides r.19 which enables the authorities to determine the unit for assessment of compensation in the case of joint families. [83 D-E; 85 A-Fl\n\nC1v1L APPELLATE JuRJSDICTJON; Civil Appeals Nos. 89-93 H of 1964.\n\nAppeals by special leave from the judgment and orders dated August 30, 1961 and June 13, 1961 in Special Civil Application Nos. 440, 441, 509, 510 and 7 of 1961.\n\nK. S. Chawla and R. S. Saclzthey, for the appellant (in C. As.\n\nNo,. 89/91-'19641\n\nCliuUDHGRY v. ISSARDAS (Sikri, J.) 79\n\nA C. K. Daphtary, Attorney-General, K. S. Chawla and R. N.\n\nSachthey, for the appellant (in C.A. No. 93 I 64).\n\nN. N. Keshwani, for the respondents in all the appeals.\n\nThe Judgment of the Court was delivered by\n\nB Sikri, J. These five appeals by special leave raise a common\n\nqpestion of interpretation of r. 19 of the Displaced Persons (Com pensation & Rehabilitation) Rules, 1955 (hereinafter referred to as the Rules). It is common ground that nothing turns on any dissimi larity in the facts of each appeal. It will accordingly suffice if facts in Civil Appeal No. 93 of 1964 3re set out.\n\nThe respondent, Lachman Hotchand Kriplani, is a displaced person from West Pakistan. He has three brothers. They owned 731 acres of agricultural land in District Nawabshah, Taluka Nawab Shah, Sind-now in Pakistan. The respondent submitted a claim under the Displaced Persons (Claims) Act, 1950 (XLIV of D 1950)-hereinafter referred to as the Claims Act. The word 'claim' was defined to mean \"assertion of a right to the ownership of, or to any interest in (i) any immovable property in West Pakistan which is situated within an urban area, or (ii) such class of property in any part of West Pakistan, other than an urban area as may be notified by the Central Government in this behalf in the official E gazette\". It is common ground that agricultural land in Sind was so notified. The . respondent's claim was that he owned 114 share of 731 acres and 14 ghuntas standing in the name of Fatehchand.\n\nThe Claim Officer, by order dated October 7, 1952, accepted the claim and assessed his claim as 94-3 standard acres.\n\nF On July 2, 1955, the respondent applied for compensation under the Displaced Persons (Compensa.tion and Rehabilitation) Act (XLIV of 1954)-hereinafter referred to as the Compensation Act. In. the application he stated that he was not a member of a Joint Hindu Family in Pakjstan, but his claim was as a co-sharer G alongwith three others, who had filed separate claims. The Assis\n\ntant Settlement Commissioner was, however, not satisfied with this assertion and after holding an enquiry, by order dated March 3, 1960, he held that the four alleged co-sharers were members of a Joint Hindu Family, and the whole agricultural land claim was to be treated as joint property. On August 29, 1960, a statement of account was issued to the tesrvmdent. This statement showed H that his claim was assessed as Rs. !D,701/- gross compensation This figure was arrived at, as stated in the affidavit of the Assis tant Settlement Commissioner, thus:\n\n\"The claim was assessed for 376 standard acres and 12 units out of which the petitioner had I/ 4th share.\n\nThe compensation on 376 Standard Acres and 12 Unit< work<.: n11t tn 1 ()Q Cl+~ .... \"' - ·\n\nscale indicated in Rule 51. This converted in terms of A money as per Rule 56 comes to Rs.. 42,806 /- The petitioner's I I 4th share would be Rs. 10,701 /-\".\n\nThe respondent then on October 28, 1960, ser.ved a notice on the Regional Settlement Commissioner calling upon him to rectify the statement of account, failing which he will be con- B strained to move the High Court under arts. 226 and 227 of the Constitution. In this notice he claimed that r. 20 applied to his case; in the alternative he asserted that at least r. 19 should be applied to him. In reply, the Assistant Settlement Commissioner informed him that the calculation had been done correctly. Thereupon, he filed a petition under arts. 226 and 227, in the Bombay 0 High Court. The High Court allowed the petition and set aslde the statement of account furnished to the petitioner on August 29, 1960, and directed that the respondent shall give the benefit of r. 19 and determine the amount of compensation payable to him in accordance with the provisions of rr. 19, 51 and 56 and other rules of the Displaced Persons (Compensation and Rehabi- D litation) Rules, 1955.\n\nThe appellant having obtained special leave, the appeals are now before us. We may mention at the outset that in the High Court the respondent's counsel did not challenge the finding of the Assistant Settlement Commissioner that the respondent and his brothers were members of a joint family. The High Court came to E the conclusion tha~ t. 19 applied to agricultural land. It found nothing in the scheme of the Rules, or in the language of r. 19, to support the claim of the Department that r. 19 applied only to nonagricultural land.\n\nThe learned Attorney-General, on behalf of the appellant, P challenges the conclusion of the High Court. He has taken us through various sections of the Compensation Act of 1954 and various rules to substantiate his contention. Let us then look at the Compensation Act and the Rules. The Compensation Act was enacted to provide for payment of compensation and rehabilitation grant to displaced persons and for matters connected therewith. 'Verified claim\" is defined to mean, inter alia, a claim registered G under the Displaced Persons (Claims) Act (XLIV of 1950). It is not disputed that the claim of the respondent verified by order dated October 7, 1952, is a verified ciaim.\n\nSection 4 provides for an application for the payment of compensation in the prescribed form to be made by a displaced person R having a verified claim within a certain period. Section 5 provides that bn receipt of an application under s. 4, the Settlement Officer shall determine the amount of public dues, if any, recoverabJe' from the applicant 11nd shall forward the applieation arid the record to the Settlement Commissioner. It will be noticed that a verified claim registered under the Claim Act, 1950, includes claims to urban as well as certain agricultural land. Therefore, both ss. 4 l\\lld\n\n~HOUDHURY V. ISSARDAS (8'ikri, J.) 81\n\nA 5 apply to such agricultUfal land as has been made the subjectmatter of claim and verification under the Claims Act of 1950.\n\nSection 6 was referred to by the learned Attorney-General but we have not been able to appreciate how it advances his case. Section 6 gives relief to certain banking companies in this way. If a banking company held a mortgage of an immovable property belonging B to a displaced person in West Pakistan, and that mortgage was subsisting at the date when the claim of the banking company was registered under the Claim Act, 1950, and the displaced person is entitled to receive compensation in respect of any such property, the banking company was entitled to various reliefs, the appropriate relief depending on whether the compensation to the disc placed person is payable (1) in cash or (2) in the form of transfer of any property, or (3) in any other form. In this section immovable property would include agricultural land and it cannot be denied that the respondent is entitled to compensation at least in one of the three forms mentioned in sub. s. (2).\n\nn Section 7(1) directs the Settlement Commissioner on receipt of the application under s. 5 to ascertain the amount of compensation having due regard to the nature of the verified claim and other circumstances of the case. Section 7 (2) provides for the deduction of certain dues and the Settlement Commissioner then makes an order under s. 7(3) ascertaining the net amount of compensation.\n\nE Section 8 provides the form and manner of payment of compensation of the net compensation determined under s. 7(3) as being payable to a displaced person. Subject to any rules that may be made, the net compensation is payable in cash, in government bonds, or by Ele to the displaced person of any property from the compensation pool and setting off the purchase money against the F compensation payable to him, etc. Section 8(2) enables rules to be made by the Central Government on various matters, inter alia, the SC!lles according to which. the form and the manner in which and the instalments by which compensation may be paid to different classes of displaced persons. Section 40 enables rules to be made to carry out by the purposes of the Compensation Act. It G is not necessary to refer to other sections of the Compensation Act.\n\nBefore ; We deal with the 1955 Rules, it is apparent that ss. 4, 5, 6, 7 and/8 do not in any manner distinguish between urban land and agricuJtural land as long as the agricultural land is the sub- H ject-matter of a verified claim. If a person holding a verified claim in respect of agricultural land owes .Pubfic dues-and \"public dues\" is defined very widely in s. 2(d) to include all kind of loans not only from the Central Government but from a State Government alsothis has to be deducted under s. 7(3). It is suggested that the expression \"net amount of compensation\" ii! s. 7(3) means only cash compensation but We are unable to limit the expression thus in view of the scheme of ss. 4 to 8.\n\nThe Central Government in exercise of the power conferred A by s. 40 of the Compensation Act made the Displaced Persons (Compensation and Rehabilitation) Rules, .1955. Chapter I contains various definitions; Chapter II deals with procedure for submission of compensation application and determination of pqblic dues. Rule 3 enables a displaced person having a verified claim to make an application for compensation. Rule 4 deals with the form B of application and Appendix I is the form prescribed, and Appendix II is the questionnaire which has to be answered. One question is important for our purpose. Under the heading \"II. Particulars of claims under Displaced Persons Claims Act, 1950\" is mentibned: \"(a) agricultural land, index no; Village/Tehsil/District; value assessed in standard acres; cosharers in each property with respective C shares;. if any property is mortgaged state mortgage money and name of the mortgagees\". The rest of the rules, upto r. 9, in this Chapter deal with the scrutiny of the application and the determination of public dues. It is only necessary to notice r. 6(2) which requires a Settlement Officer to send a duplicate copy of the application to the Office of the Chief Settlement Commissioner for D verification of the assessed value of the claim in respect of which the application has been made. Under r. 10, the Settlement Officer is required to pass an order and send a copy of the order and the original application along with the records of the case to the Regional Settlement Commissioner. It will be seen that Chapter II does not distinguish between verified claims relating to urban E property and rural property.\n\nThen we come to Chapter III which contains r. 11. Under this rule the Settlement Commissioner deals with the duplicate copy sent to him under r. 6(2). He verifies the assessed value of the claim, as stated in the application, with the final order in respect F thereof, in the claims record and returns the duplicate copy to the Regional Settlement Commissioner with such remarks as may be relevant for the determination of the amount bf compensation.\n\nChapter IV deals with determination of compensation. It will be remembered that s. 5 of the Compensation Act requires the Settlement Officer to determine the amount of public dues and forward G the application and the record of the case tb the Settlement Commissioner, and r. 1], which we have just noticed, requires the Settlement Commissioner (Headquarters) to send the duplicate copy to the Regional Settlement Commissioner. Rule 12 directs the Regional Settlement Commissioner to consolidate all these papers.\n\nRule 12 obviously applies to application in respect of verified H claims to agricultural land. As we have already said, s. 5 and r. 11 applied to such verified claims. Rule 13 deals with determination of certain dues to banking companies under s. 6 and any unsecured debt payable by an applicant in respect of which a communicatibn has been received from any Tribunal under s. 52 of the Displaced Persons (Debt Adjustment) Act, 1951 (LXX of 1951). Rule 14 directs that the public dues and the amounts referred to in Rule 13\n\nCHOUDHURY V, ISSARDAS (Sikri, J.) 83\n\nA shall be deducted from the amount of compensation in a certain\n\norder of priority. Rule 15 reads as follows:\n\n\"Determination of net compensation; After deducting the amount referred to in rule 14, the Regional Settlement Commissioner or an Assistant Settlement Commissioner or a Settlement Officer, or an Assistant Settlement Officer, having jurisdiction and duly authorised by the Regional Settlement Commissioner, shall pass an order determining the net amount of compensation payable to the applicant in respect of his verified claim and shall prepare a summary in the form specified in Appendix VII (Abstract of particulars).\n\nIt is significant that Appendix VII has a column for agricultural land and a column for remarks regarding application of r. 19.\n\nPausing here, it is difficult to hold that rr. 12, 13 and 14 do not apply to applications for compensation in respect of agricul- D tural lands which are the subject-matter of a verified claim. Therefore, we must reject the contention that Chapter IV, in which r. 19 occurs, does not deal with agricultural lands at all. It may be conceded that r. 16 does not apply to agricultural lands. The scale of compensation in respect of agricultural lands which are E the subject-matter of a verified claim is expressly dealt with elsewhere. Rule 51 which provides that the scale of allotment of land as compensation in respect of a verified claim for agricultural land shall be the same as in quasi-permanent land allotment scheme in the State of Punjab and Patiala, and the East Punjab States Union, as set out in Appendix XIV. The explanation fur- F ther provides that if any public dues are recoverable the allotable area shall be reduced correspondingly. Rule 49 read with r. 56 enables the compensation due on the verified claim for agricultural land to be converted into cash if a person wishes to have his claim satisfied against property other than agricultural land. Rule\n\n18 expressly excludes agricultural land from its purview.\n\nWhat G emerges from a consideration of these rules in Chapter IV is that we must consider each rule and see whether it has application to a claim for compensation in respect of agricultural land.\n\nRule 19 reads thus:\n\n\"Special Provision for payment of compensation to Joint families-Where a claim relates to .properties left by the members of an undivided Hindu family in West Pakistan (hereinafter referred to as the joint family) compensation shall be computed in the manner hereinafter provided in this rule.\n\n(2) where on the 26th Sept. 1955 (hereinafter referred to as the relevant date) the joint family consisted of:-\n\n(a) two or three members entitled to claim partition,\n\nthe compensation payable to such family shall be computed by dividing the verified _claim into two equal shares and cafoulating the compensation separately on each such share,\n\n(b) four or more members entitled to claim partition, the compensation payable to such family shall be computed by dividing the verified claim into three equal shares and calculating the compensation separately on each such share.\n\n(3) For the purpose of calculating the number of the member of a joint family under sub-rule (2), a person who on the relevant date: -\n\n(a) was less than 18 years of age,\n\n(b) was a lenial descendant in the main line of another living member of joint Hindu family entitled to claim partition shall be excluded: Provided that where a member of a joint family has died during the period commencing on the 14th August .1947 and ending on the relevant date leaving behind on the relevant date all or any of the following heirs namely:-\n\n(a) a widow or widows,\n\n(b) a son or sons (whatever the age of such son or sons) but no lenial ascendant in the main line, then all such heirs shall, notwithstanding anything contained in this rule, be reckon&! as one member of 'the joint Hindu family. ' Explanation-For the purpose of this rule, the question whether a family is joint or separate shall be determined with reference to the status of the family on the 14th day of August, 1947 and every member of a joint family shall be deemed to be joint notwithstanding the fact that he had separated from the family after the date\".\n\nThe heading \"Special Provision for payment of compensation to joint families\" is general. So is sub-rule (1). The word 'pro. perties' is general and would include agricultural land. That this is the meaning is also borne out if we consider the word \"claim\". The word \"claim\" must have reference to the claim in the application\n\nto be made under s. 4 read with rr. 3 and 4, and as we have al- B ready noticed, the application would include a claim in respect of agricultural land if it is the subject-matter of a verified claim.\n\nThe learned Attorney-General has not been able to. point to any principle of construction which would enable us to limit the scope of the general words in r. 19(1). His main argument that no 'rule in Chapter IV applies to claims in respect of agricultural land we have already rejected.\n\n• C!!Ol\"f>HURY t'. ISSARDAS (8ikri, J.) 85\n\nA The learned Atlorney-General then urges that the scheme of the Rules is to provide in separate chapters for compensation in respect of various classes of properties, and h~ says that Chapter VIII provides for compensation in respect of verified claim for agricultural land situated in rural area and the rules contained in the chapter are the only rules _that govern the grant of com- B pensation. But none of the rules in this chapter deals with what is to happen if the agricultural land was held by a joint family in West Pakistan or if the agricultural land was held by co-owners in West Pakistan. Even if a Joint Hindu Family is treated as a unit for s:Jme purposes in some laws, co-owners are very rarely treated as a unit and it would require express language to treat C co-owners as a unit and award compensation to them as a unit.\n\nHowever,· r. 20 recognises ihe general rule and provides that where a claim relates to property left in West Pakistan, which is owned by more than one claimant as co-owners, the unit for the assessment of compensation shall be the share of each co-owner and the compensation shall be payable in respect of each such share as if D a claim in respect thereof has been filed and verified separately.\n\nThe learned Attorney-General, when asked, said that even r. 20 would not apply to a claim in respect of agricultural land, but we are unable to accede to this contention. It would be the height of inequity to hold this. In other words, rr. 19 and 20 enable the authprities to determine the unit for assessment of compensation. This E subject is not dealt with in Chapter VIII, which deals with how the unit, be it an individual, a member of Joint Hindu Family or a co-owner, is to be compensated. There is nothing in Chapter VIII which modifies or overrides rr. 19 and 20.\n\nAccordingly, in agreement with the High Court. we hold r that r. 19 will apply to the claim of the respondent in respect of\n\nagricultural land left by him as a member of the Joint Hindu Family.\n\nIn the result, the appeal fails and is dismissed with costs.\n\nAs stated in the beginning, it is common ground that if this: G appeal fails the other appeals must also fail. They are according-. ly dismissed with costs. There will be one hearing fee in them.\n\nAppeals dismissed.", "total_entities": 68, "entities": [{"text": "H. K. CHOUDHURY, REGIONAL SETTLEMENT\n\nCOMMISSIONER", "label": "PETITIONER", "start_char": 0, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "H. K. CHOUDHURY, REGIONAL SETTLEMENT COMMISSIONER", "offset_not_found": false}}, {"text": "ISSARDAS KUNDANMAL MOTIANI AND OTHERS", "label": "RESPONDENT", "start_char": 57, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "ISSARDAS KUNDANMAL MOTIANI AND OTHERS", "offset_not_found": false}}, {"text": "February 15, 1965", "label": "DATE", "start_char": 96, "end_char": 113, "source": "ner", "metadata": {"in_sentence": "H. K. CHOUDHURY, REGIONAL SETTLEMENT\n\nCOMMISSIONER\n\nSHRI ISSARDAS KUNDANMAL MOTIANI AND OTHERS\n\nFebruary 15, 1965\n\n[P.B. GAJENDRAGADKAR, C.J., M. HIDAYATULLAH, J.C. SHAH AND\n\nS.M. S!KRI, JJ.]"}}, {"text": "P.B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 116, "end_char": 141, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, J", "label": "JUDGE", "start_char": 143, "end_char": 161, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 162, "end_char": 169, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Arts. 226 and 227", "label": "PROVISION", "start_char": 959, "end_char": 976, "source": "regex", "metadata": {"statute": null}}, {"text": "Chapter IV of the Rules", "label": "STATUTE", "start_char": 1595, "end_char": 1618, "source": "regex", "metadata": {}}, {"text": "Chapter G VIII of the Rules", "label": "STATUTE", "start_char": 2122, "end_char": 2149, "source": "regex", "metadata": {}}, {"text": "K. S. Chawla", "label": "LAWYER", "start_char": 2750, "end_char": 2762, "source": "ner", "metadata": {"in_sentence": "K. S. Chawla and R. S. Saclzthey, for the appellant (in C. As."}}, {"text": "R. S. Saclzthey", "label": "LAWYER", "start_char": 2767, "end_char": 2782, "source": "ner", "metadata": {"in_sentence": "K. S. Chawla and R. S. Saclzthey, for the appellant (in C. As."}}, {"text": "A C. K. Daphtary", "label": "LAWYER", "start_char": 2872, "end_char": 2888, "source": "ner", "metadata": {"in_sentence": "89/91-'19641\n\nCliuUDHGRY v. ISSARDAS (Sikri, J.) 79\n\nA C. K. Daphtary, Attorney-General, K. S. Chawla and R. N.\n\nSachthey, for the appellant (in C.A. No."}}, {"text": "R. N.\n\nSachthey", "label": "LAWYER", "start_char": 2925, "end_char": 2940, "source": "ner", "metadata": {"in_sentence": "89/91-'19641\n\nCliuUDHGRY v. ISSARDAS (Sikri, J.) 79\n\nA C. K. Daphtary, Attorney-General, K. S. Chawla and R. N.\n\nSachthey, for the appellant (in C.A. No."}}, {"text": "N. N. Keshwani", "label": "LAWYER", "start_char": 2984, "end_char": 2998, "source": "ner", "metadata": {"in_sentence": "N. N. Keshwani, for the respondents in all the appeals."}}, {"text": "B Sikri", "label": "JUDGE", "start_char": 3085, "end_char": 3092, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nB Sikri, J. These five appeals by special leave raise a common\n\nqpestion of interpretation of r. 19 of the Displaced Persons (Com pensation & Rehabilitation) Rules, 1955 (hereinafter referred to as the Rules)."}}, {"text": "Lachman Hotchand Kriplani", "label": "RESPONDENT", "start_char": 3483, "end_char": 3508, "source": "ner", "metadata": {"in_sentence": "The respondent, Lachman Hotchand Kriplani, is a displaced person from West Pakistan."}}, {"text": "West Pakistan", "label": "GPE", "start_char": 3537, "end_char": 3550, "source": "ner", "metadata": {"in_sentence": "The respondent, Lachman Hotchand Kriplani, is a displaced person from West Pakistan."}}, {"text": "Nawabshah", "label": "GPE", "start_char": 3629, "end_char": 3638, "source": "ner", "metadata": {"in_sentence": "They owned 731 acres of agricultural land in District Nawabshah, Taluka Nawab Shah, Sind-now in Pakistan."}}, {"text": "Sind", "label": "GPE", "start_char": 3659, "end_char": 3663, "source": "ner", "metadata": {"in_sentence": "They owned 731 acres of agricultural land in District Nawabshah, Taluka Nawab Shah, Sind-now in Pakistan."}}, {"text": "Pakistan", "label": "GPE", "start_char": 3671, "end_char": 3679, "source": "ner", "metadata": {"in_sentence": "They owned 731 acres of agricultural land in District Nawabshah, Taluka Nawab Shah, Sind-now in Pakistan."}}, {"text": "Central Government", "label": "ORG", "start_char": 4119, "end_char": 4137, "source": "ner", "metadata": {"in_sentence": "The word 'claim' was defined to mean \"assertion of a right to the ownership of, or to any interest in (i) any immovable property in West Pakistan which is situated within an urban area, or (ii) such class of property in any part of West Pakistan, other than an urban area as may be notified by the Central Government in this behalf in the official E gazette\"."}}, {"text": "Fatehchand", "label": "OTHER_PERSON", "start_char": 4354, "end_char": 4364, "source": "ner", "metadata": {"in_sentence": "respondent's claim was that he owned 114 share of 731 acres and 14 ghuntas standing in the name of Fatehchand."}}, {"text": "October 7, 1952", "label": "DATE", "start_char": 4401, "end_char": 4416, "source": "ner", "metadata": {"in_sentence": "The Claim Officer, by order dated October 7, 1952, accepted the claim and assessed his claim as 94-3 standard acres."}}, {"text": "July 2, 1955", "label": "DATE", "start_char": 4490, "end_char": 4502, "source": "ner", "metadata": {"in_sentence": "F On July 2, 1955, the respondent applied for compensation under the Displaced Persons (Compensa.tion and Rehabilitation) Act (XLIV of 1954)-hereinafter referred to as the Compensation Act."}}, {"text": "Pakjstan", "label": "OTHER_PERSON", "start_char": 4757, "end_char": 4765, "source": "ner", "metadata": {"in_sentence": "the application he stated that he was not a member of a Joint Hindu Family in Pakjstan, but his claim was as a co-sharer G alongwith three others, who had filed separate claims."}}, {"text": "March 3, 1960", "label": "DATE", "start_char": 4990, "end_char": 5003, "source": "ner", "metadata": {"in_sentence": "The Assis\n\ntant Settlement Commissioner was, however, not satisfied with this assertion and after holding an enquiry, by order dated March 3, 1960, he held that the four alleged co-sharers were members of a Joint Hindu Family, and the whole agricultural land claim was to be treated as joint property."}}, {"text": "August 29, 1960", "label": "DATE", "start_char": 5162, "end_char": 5177, "source": "ner", "metadata": {"in_sentence": "On August 29, 1960, a statement of account was issued to the tesrvmdent."}}, {"text": "October 28, 1960", "label": "DATE", "start_char": 5805, "end_char": 5821, "source": "ner", "metadata": {"in_sentence": "The respondent then on October 28, 1960, ser.ved a notice on the Regional Settlement Commissioner calling upon him to rectify the statement of account, failing which he will be con- B strained to move the High Court under arts."}}, {"text": "arts. 226 and 227", "label": "PROVISION", "start_char": 6004, "end_char": 6021, "source": "regex", "metadata": {"statute": null}}, {"text": "arts. 226 and 227", "label": "PROVISION", "start_char": 6322, "end_char": 6339, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay 0 High Court", "label": "COURT", "start_char": 6348, "end_char": 6367, "source": "ner", "metadata": {"in_sentence": "226 and 227, in the Bombay 0 High Court."}}, {"text": "has taken us through various sections of the Compensation Act", "label": "STATUTE", "start_char": 7406, "end_char": 7467, "source": "regex", "metadata": {}}, {"text": "Let us then look at the Compensation Act and the Rules", "label": "STATUTE", "start_char": 7526, "end_char": 7580, "source": "regex", "metadata": {}}, {"text": "Section 4", "label": "PROVISION", "start_char": 7979, "end_char": 7988, "source": "regex", "metadata": {"linked_statute_text": "Let us then look at the Compensation Act and the Rules", "statute": "Let us then look at the Compensation Act and the Rules"}}, {"text": "Section 5", "label": "PROVISION", "start_char": 8156, "end_char": 8165, "source": "regex", "metadata": {"linked_statute_text": "Let us then look at the Compensation Act and the Rules", "statute": "Let us then look at the Compensation Act and the Rules"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 8215, "end_char": 8219, "source": "regex", "metadata": {"linked_statute_text": "Let us then look at the Compensation Act and the Rules", "statute": "Let us then look at the Compensation Act and the Rules"}}, {"text": "will be noticed that a verified claim registered under the Claim Act, 1950", "label": "STATUTE", "start_char": 8413, "end_char": 8487, "source": "regex", "metadata": {}}, {"text": "ss. 4", "label": "PROVISION", "start_char": 8568, "end_char": 8573, "source": "regex", "metadata": {"linked_statute_text": "It will be noticed that a verified claim registered under the Claim Act, 1950", "statute": "It will be noticed that a verified claim registered under the Claim Act, 1950"}}, {"text": "~HOUDHURY V. ISSARDAS", "label": "JUDGE", "start_char": 8581, "end_char": 8602, "source": "ner", "metadata": {"in_sentence": "4 l\\lld\n\n~HOUDHURY V. ISSARDAS (8'ikri, J.) 81\n\nA 5 apply to such agricultUfal land as has been made the subjectmatter of claim and verification under the Claims Act of 1950."}}, {"text": "Ufal land as has been made the subjectmatter of claim and verification under the Claims Act", "label": "STATUTE", "start_char": 8646, "end_char": 8737, "source": "regex", "metadata": {}}, {"text": "Section 6", "label": "PROVISION", "start_char": 8748, "end_char": 8757, "source": "regex", "metadata": {"linked_statute_text": "Ufal land as has been made the subjectmatter of claim and verification under the Claims Act", "statute": "Ufal land as has been made the subjectmatter of claim and verification under the Claims Act"}}, {"text": "Section 6", "label": "PROVISION", "start_char": 8872, "end_char": 8881, "source": "regex", "metadata": {"linked_statute_text": "Ufal land as has been made the subjectmatter of claim and verification under the Claims Act", "statute": "Ufal land as has been made the subjectmatter of claim and verification under the Claims Act"}}, {"text": "Claim Act, 1950", "label": "STATUTE", "start_char": 9159, "end_char": 9174, "source": "regex", "metadata": {}}, {"text": "Section 7(1)", "label": "PROVISION", "start_char": 9710, "end_char": 9722, "source": "regex", "metadata": {"linked_statute_text": "the Claim Act, 1950", "statute": "the Claim Act, 1950"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 9795, "end_char": 9799, "source": "regex", "metadata": {"linked_statute_text": "the Claim Act, 1950", "statute": "the Claim Act, 1950"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 9931, "end_char": 9940, "source": "regex", "metadata": {"linked_statute_text": "the Claim Act, 1950", "statute": "the Claim Act, 1950"}}, {"text": "s. 7(3)", "label": "PROVISION", "start_char": 10046, "end_char": 10053, "source": "regex", "metadata": {"linked_statute_text": "the Claim Act, 1950", "statute": "the Claim Act, 1950"}}, {"text": "Section 8", "label": "PROVISION", "start_char": 10102, "end_char": 10111, "source": "regex", "metadata": {"linked_statute_text": "the Claim Act, 1950", "statute": "the Claim Act, 1950"}}, {"text": "s. 7(3)", "label": "PROVISION", "start_char": 10209, "end_char": 10216, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8(2)", "label": "PROVISION", "start_char": 10518, "end_char": 10530, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 40", "label": "PROVISION", "start_char": 10776, "end_char": 10786, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 4, 5, 6, 7", "label": "PROVISION", "start_char": 10999, "end_char": 11013, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(d)", "label": "PROVISION", "start_char": 11305, "end_char": 11312, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7(3)", "label": "PROVISION", "start_char": 11441, "end_char": 11448, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7(3)", "label": "PROVISION", "start_char": 11519, "end_char": 11526, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 4 to 8", "label": "PROVISION", "start_char": 11628, "end_char": 11638, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 11704, "end_char": 11709, "source": "regex", "metadata": {"statute": null}}, {"text": "Particulars of claims under Displaced Persons Claims Act, 1950", "label": "STATUTE", "start_char": 12269, "end_char": 12331, "source": "regex", "metadata": {}}, {"text": "s. 5", "label": "PROVISION", "start_char": 13836, "end_char": 13840, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 14391, "end_char": 14395, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 14515, "end_char": 14519, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 52", "label": "PROVISION", "start_char": 14645, "end_char": 14650, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab", "label": "GPE", "start_char": 16336, "end_char": 16342, "source": "ner", "metadata": {"in_sentence": "Rule 51 which provides that the scale of allotment of land as compensation in respect of a verified claim for agricultural land shall be the same as in quasi-permanent land allotment scheme in the State of Punjab and Patiala, and the East Punjab States Union, as set out in Appendix XIV."}}, {"text": "Patiala", "label": "GPE", "start_char": 16347, "end_char": 16354, "source": "ner", "metadata": {"in_sentence": "Rule 51 which provides that the scale of allotment of land as compensation in respect of a verified claim for agricultural land shall be the same as in quasi-permanent land allotment scheme in the State of Punjab and Patiala, and the East Punjab States Union, as set out in Appendix XIV."}}, {"text": "26th Sept. 1955", "label": "DATE", "start_char": 17360, "end_char": 17375, "source": "ner", "metadata": {"in_sentence": "(2) where on the 26th Sept. 1955 (hereinafter referred to as the relevant date) the joint family consisted of:-\n\n(a) two or three members entitled to claim partition,\n\nthe compensation payable to such family shall be computed by dividing the verified _claim into two equal shares and cafoulating the compensation separately on each such share,\n\n(b) four or more members entitled to claim partition, the compensation payable to such family shall be computed by dividing the verified claim into three equal shares and calculating the compensation separately on each such share."}}, {"text": "14th August .1947", "label": "DATE", "start_char": 18323, "end_char": 18340, "source": "ner", "metadata": {"in_sentence": "(3) For the purpose of calculating the number of the member of a joint family under sub-rule (2), a person who on the relevant date: -\n\n(a) was less than 18 years of age,\n\n(b) was a lenial descendant in the main line of another living member of joint Hindu family entitled to claim partition shall be excluded: Provided that where a member of a joint family has died during the period commencing on the 14th August .1947 and ending on the relevant date leaving behind on the relevant date all or any of the following heirs namely:-\n\n(a) a widow or widows,\n\n(b) a son or sons (whatever the age of such son or sons) but no lenial ascendant in the main line, then all such heirs shall, notwithstanding anything contained in this rule, be reckon&!"}}, {"text": "14th day of August, 1947", "label": "DATE", "start_char": 18871, "end_char": 18895, "source": "ner", "metadata": {"in_sentence": "Explanation-For the purpose of this rule, the question whether a family is joint or separate shall be determined with reference to the status of the family on the 14th day of August, 1947 and every member of a joint family shall be deemed to be joint notwithstanding the fact that he had separated from the family after the date\"."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 19385, "end_char": 19389, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_793_805_EN", "year": 1965, "text": "KEDAR PANDEY\n\nNARAIN BIKRAM SAH\n\nApril 15, 1965\n\n[P. B. GAJENDRAGADKAR, K N. WANCHOO, M. HIDAYATULLAH AND\n\nV. R.AMASWAMI, JJ.]\n\nConstitution of India, 1950, Art. 5(c)-Acquisition of Indian domicile-Proof.\n\nThe appellant and respondent were contesting candidates for election to the State Legislative Assembly. The respondent was\n\ndeclared elected, and the appellant filed an election petition challenging the election on the ground that the respondent was not duly qualified under Art. 173 of the Constitution as he was a citizen of Nepal and not a citizen of Inclia. The Tribunal held that the respondent was not a citizen of India, but the High Court in appeal set aside that order and upheld the election of the respondent.\n\nOn the question whether the respondent was a citizen of India under Art. 5 of the Constitution, on the material date,\n\nHELD: Assuming that the respondent was not born in the territory of India, on a consideration of all the events and circumstances of his life, he had acquired a domicile of choice in India long before the end of 1949 which is the material time under Art. 5 of the Constitution. He had formed the deliberate intention of making Inclia his home with the intention of permanently establishing him\n\nself and his family in India and therefore had t':i.e requisite anirn .. us manendi. He was ordinarily resident in India for 5 years immediately preceding the time when Art. 5 came into force. Since the requirements of Art. 5(c) were satisfied, the High Court rightly reached the conclusion that he was a citizen of India at the relevant time. [805 C-D]\n\nThe only intention required for a proof of a change of domicile is an intention of permanent residence. What is required to be established is ti/at the person who is alleged to have changed his domicile of origin has voluntarily fixed the habitation of himself and his family in the new country, not for a mere special or temporary purpose, but with a present intention of making it his permanent homei\n\nOn the question of domicile at a particular time the course of his conduct and the facts and circumstances before and after that time are relevant. [8()1 F-G; 803 F]\n\nUdny v. Udny, L.R. 1 H.L. Sc. 441 and Doucet v. Geoghegan, 9 Ch.\n\nDiv. 441, applied.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 976 A and. 977 of 1964.\n\nAppeals from the judgment and decree dated March 26, 1964 of the Patna High Court in Eleetion Appeals Nos. 8 and I 0 of 1963.\n\nC. B. Agarwala, Jagdish Pan<lay, Chinta Subbarao, M. Raja- B gopalan and B. P. lha, for the appellant, Un both the appeals).\n\nK. P. Varma and D. Goburdhun, for the respondent (In both the appeals).\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J. Both these appeals are brought by certificate against the judgment and decree of the High Court of Judicature at Patna dated March 26, 1964, pronounced in Election Appeals Nos. 8 and IO of !963.\n\nThe appellant-Kedar Pandey and the respondent-Narain Bikram Sah (hereinafter called Narain Raja) were the contesting D candidates in the year 1962 on behalf of the Congress and Swatantra Party respectively for the election to Bihar Legislative Assembly from Ramnagar Constituency in the district of Champaran.\n\nThe nomination papers of the appellant and the respondent and two others-Patmeshwar Prasad Roy and Suleman Khanwere accepted by the Returning Officer without any objection on E January 22, 1962. Later on the two candidates-Parmeshwar Prasad Roy and . Suleman Khan-withdrew their candidature~.\n\nAfter the poll the respondent, Narain Raja was declared elected as member of the Bihar Legislative Assembly by majority of valid votes. On April 11, 1962 Kedar Pandey filed an election petition challenging the election of the respondent. It was alleged F by Kedar Pandey that the respondent was not duly qualified under Art. 173 of the Constitution of India to be a candidate for election as he was not a citizen of India: According to Kedar Pandey the respondent, bis parents and grand-parents werei all born in Nepal and, therefore, on the date of the election, the respondent- G Narain Raja-was not qualified to be chosen to fill the Assembly seat for which be _had been declared to have been elected. According to Kedar Pandey the respondent was related to the royal family of Nepal and the father of the respondent-Rama Raja-owned about 43 bighas of land and a house at Barewa in Nepal in which the respondent bad a share along with his three other brothers. The . H election petition was contested by the respondent who said that .he was an Indian citizen and there was no disqualification incurred under Art. 173 of the Constitution. The further case of the respondent was that he had lived in India since his birth and that he was a resident of Ramnagar in the district of Champaran and not of Barewa in Nepal. The respondent claimed that he was born in Banaras and not at Barewa .\n\nKl':PAR l'ANDEY .,,, NA.RAJX (Ranuis1ran11'., .J.) i915\n\nA Upon these rival contentions it was held by. the Tribu-. nal that the respondent-Narain Raja-was not a citizen of India and. therefore, was not qualified under Art. 173 of the Constitution for being chosen to fill a seat in the Bihar Legislative Assembly. The Tribunal, therefore. declared that the election of the respondent was void. But the Tribunal refused to make a B declaration that Kedar Pandey was entitled to be elected to Bihar Legislative Assembly for that Constituency. Both the appellant and the respondent preferred separate appeals against the judgment of the Election Tribunal to the High Court. of Judicature at Patna.\n\nThe High Court in appeal set aside the judgment of the Tribunal and upheld the election of the respondent-Narain Raja. The High C Court found, on examination of the evidence, that Narain Raja, the respondent before us, was born in Banaras on October 10, 1918 and that the respondent was living in India from 1939 right upt0\n\n1949 and even thereafter. The High Court further found that long before the year 1949 Narain Raja had acquired a domicile of choice in Indian territory and, therefore, acquired the status of a citizen of D India both under Art. 5(a) and (c) of the Constitution. On these findings the High Court took the view that Narain Raja was duly qualified for being elected to the Bihar Legislative Assembly and the election petition filed by the appellant-Kedar Pandey-should be dismissed.\n\nThe main que, tion arising for decision in this case is whether the High Court was right in its conclusion that the respondent- Narain Raja-was a citizen of India under Art. 5 of the Constitution of India on the material date.\n\nThe history of the family of Narain Raja is closely connected with the history of Ranmagar estate. It appears that Ramnagar estate in the district of Champaran in Bihar originally belonged to Shri Prahlad Sen after whose death the estate came into th~ possession of Shri Mohan Vikram Sah, popularly known as Mohan Raja. After the death of Mohan Raja the estate came into the possession of Rani Chhatra Kumari Devi, the vidow of Mohan Rajd, and after the death of Rani Chhatra Kumari Devi, the estate came into the possession of Rama Raja alias Mohan Bikram Sah, the fther of the respondent-Narain Raja. It is in evidence that the daughter of .Prahlad Sen was married to Shri Birendra Vikram Sah, the father of Mohan Raja. Mohan Raja died without any male issue but during his lifetime he had adopted Rama Raja, the father of the respondent and by virtue of a will executed by Mohan Raja in the year 1904 in fa, mir of his wife Rani Chhatra Kumari Devi the Rani became entitled to the Ramnagar estate on the death of Mohan Raja (which took place in 1912), in preference to the adopted son Rama Raja since the properties belonged to Mohan Raja in his absolute right and not as ancestral properties. After the death of Rani L/P(ll)5'ur-1;\n\n796 Sl'l'IU•iMF: 1.ouRT REPOR'fS I 1965] :l S.C.R.\n\nChhatra Kumari Devi i11 1937 Rama Raja caine into the posses- A sion of the Ramnagar estate. In the year 1923. Rani Chhatra Kumari Devi had tiled R.S. No. 4 of 1923 against Rama Raja in the Court of Sub-Judge, Motihari with regard to a village which Rama Raja held in Ramnagar estate on the basis of a Sadhwa Patwa lease. Rama Raja in turn filed T.S. No. 34 of 192, l in Ille Court of Subordinate Judge of Motihari against Rani Chh3tra B Kumari Devi and others claiming title to Ramnagar estate anti for possession of the same on the basis of his adoption by Mohan Raja. The Title Suit and the Rnt Suit were heard together by the Additional Sub-Judge, Motihari who, by his judgment dated August 18, 1927 decreed the Title Suit filed by Rama Raja and .dismissed the Rent Suit filed by Rani Chhatra Kumari Devi. There C\n\nwas an appeal to the High Court of Patna which dismissed the appeal. Against the judgment of the High Court appeals were taken to the Judicial Committee of the. Privy Council. The appeal was decided in favour of Rant Chhatra Kumari Devi and the result\n\n.vas that the Title Suit filed by Rama Raja was dismissed and Rent D Suit ti led by Rani Chhatra Kumari Devi was decreed. In the course of judgment the Judicial Committee did not disturb the findiug of the trial Court that Rama Raja was an adopted son of Shri Mohan Vikram Sah alias Mohan Raja and accepted that finding as correct; but the Judicial Committee held that Ramnagar estate was not the ancestral property of Mohan Raja, but he got that E property by inheritance, he being the daughter's son of Prahlad Sen, the original proprietor of that estate. In view of this circumstance, the Judicial Committee held that though Rama Raja was .the adopted son of Mohan Raja, Rama Raja was not entitled to. the estate in view of the will executed by Mohan Raja in favour of Rani Chhatra Kumari Devi in .the year 1904. It appears that p in the year 1927 Rama Raja had taken possession of Ramnagar estate and got his name registered in Register D and remained in possession till the year 1931 when he lost the suit in Privy Council.\n\nAfter the decision of Privy Council, Rani Chhatra Knmari Devi again came into possession of Ramnagar estate and continued to remain in possession till she died in 1937. It is in evidence that G after the death of Rani Chhatra Kumari Devi, Rama Raja obtained possession of Ramnagar estate and continued to remain in possession thereof from 1937 till 1947, the year of his death. There is evidence that Rama Raja died in Bombay and his dead-body was cremated in Banaras.\n\nIt is also in evidence that during the lifetime Qf Rama Raj~ there was a partition suit in the year 1942-No. 40 of 1942-for the partition of the properties of the Ramnagilr estate among Rama Raja and his sons including the respondent. This suit was filed on September 29, 1942 in the Court of the Subordinate Judge at Motihari. A preliminary decree-Ex. 'l (2)-was passed on April 16, 1943 on compromise and the final decree-Ex l'(l) in the suit\n\nw.15 ~3ssed on:May'.!2. 1944._From the two decrees-it appears that\n\n!{a:n'nagar. estate w;1s comprised of extensive properties include iac'. <ainindari interest in a large number of villages and the estate h:i:J an :::, tensive area of Bakasht lands. By the said partition the\n\ncstat~ was divided among the co-sharers but certain properties indudi11~ fooests in the estate were left joint. -\n\nOn behalf of the appellant Mr. Aggarwala put forward the argument that the High Court was not justified in holding that Narain Raja was born in Bnnaras in the_ year 1918. According to the case of the appellant Narain Raja was born at a place called _ • Barewa in Nepal. In order . to prove his case the appellant - C examined two witnesses-Sheonath Tewari (P.W. 18) and N: D.\n\nPathak (P.W. 15). The High Court held that their evidence was acceptable. There was also a plaint <Ex. 8) produced on behalf of the appellant to show that Narain Raja was born at Barewa. T1ilil\n\nplaint was apparently filed in a suit brought by the respondent for the realisation of money advanced by the respondent's mother to D one Babula) Sah. The place of birth of the respondent is men-.\n\ntJOIed in this plaint as Barewa Durbar. The High Court did not atta.:h imilortance to Ex. 8 because it took the view that the description of the place of birth given in the document was only for the purpose of litigation. It further appears from Ex. 8 that it was not _ <igned by the respondent but by one Subhan Mian Jolaha d_es E cribed as 'Agent\". On behalf of the respondent R.W.19-G. S.\n\nPrasad was examined to prove that Narain Raja was born at.\n\nBanaras. The High Court accepted the evidence of this witness and also of the respondent himself on this point. It was submitted by Mr. Aggarwala that there were two circumstances which indicate that the respondent could not have been born at Banaras: In the -- F _first place, it was pointed out, the municipal registers of Banaras . for the year 1918-Ex, 2 series-did not mention the birth of the respondent. It was explained on behalf of the:resl'ondent thar tho house at Mamurganj in whichthe respondent was born was not . included within the limits of the municipality in the year 1918, and -\n\n0 that the omission of the birth of the respondent in the municipal -registers was therefore, of no significance. It was contended on\n\nbh31f of the appellant that there was litigation with regard to properties of Ramnagar estate between the respondent's father and Rani Chhatra Kumari Devi and therefore the evidence of P.W. Y.\n\nG. S. Prasad that Rama Raja was living with Rani Chhatra Kumari n Devi at Ramnagar even during her lifetime cannot <be accepted_\n\ns true. It was, therefore, suggested that it was highly improbable that Narain Raja should have been born at Banaras iii the year 1918, as alleged; in the house belonging_ to Ramnagar estate. We do not, however, think it necessary to express any concluded opinion on this question of fact but proceed to decide the case 011 .\n\nthe assumption that Narain Raja was not born in the territory of India, in the year 1918. The reason is that the place of birth\n\nof Narain Raja has lost its importance in this case in view of the A. concurrent findings of both the High Court and the Tribunal that for a period of 5 years preceding the commencement of the Constitution. Narain Raja was ordinarily resident in the territory of India. Therefore the requirement of Art. S(c) of the Constitutio1? is fulfilled. Mr. Aggarwala on behalf of the appellant did not cha1lenge this finding of the High Court. It is. therefore, manifest that B the reqmreroent of Art. 5 (cl of the Constitution has been established anc: the only question remaining for oonsideration is th~ question whether Narain Raja had his dornicil in the territory of India at the material time.\n\nUpon this question it was argued before the High Court on C behalf , Qf the respondent that the domicil of origin of Mohan Raja may have been in Nepal but he had acquired a domicile of choice in India after inheriting Ramnagar Raj from his maternal grandfather Prahlad Sen. It was said that Mohan Raja had settled down in India and had married all his 4 Ranis in Ramnagar. It was argued, therefore, that at the time when Mohan Raja had adopted D Rama Raja in 1903 Mohan Raja's domicil of choice was India.\n\nIt was said that by adoption in 1903 Rama Raja became Mohan Raia's son and by fiction it must be taken foal Rama Raja's do:nicii was India as if he was Mohan Raja 's son. It was contended in the alternative that whatever may have been Rama R<1ja's domicil E hefore 1937 when Rani Chhatra Kumari Devi died, Rama Raja acauired a domicil of choice in India when he came to India ou the death of Rani Chhatra Kumari Devi. It was also stated on behalf of the respondent that Rama Raja remained in possession of the Ramnagar estate until his death in 1947. The High Court, however. held. upon examination of the evidence, that there was F no material on the record to decide 1he question of Mohan Raja's domicil. It was also held by the High Court that it was not possible to ascertain from the evidence whether there was any intention of Rama Raja to settle down in India and make it his permanent home. In any event. Narain Raja was born in the year 1918 and unless the domicil of Rama Raja in 1918 was ascertained the G domicil of origin of Narain Raja will remain unknown. The High Court therefore, proceeded upon the assumption that Narain Raja had his domicil of origin in Nepal and examined the evidence to find out whether Narain Raja had deliberately hosen the domicil of choice in India in substitution for the domicil of origin.\n\nThe crucial question for determination in this. case. therefore. is whether Narain Raja had acquired the domicil of choice in India.\n\nThe law on the topic is well-established but the difficulty is found in its application to varying combination of circumstances In each case. The law attributes to every person at birth a domicil\n\n' ·,\n\n..,.\n\n.-~~~~~~~--~~. -~-------------------------,\n\n' I\n\n.... ' .•• '>.. :.\n\nKEDAR PANDE_Y v. NARAIN (Rar, uiswami, J.) 799\n\n-, ' .'\\ which is called a domicil of origin. This domicil may be changed.\n\n~\"'' a new domicil, which is called a domicil of choice, acquired; • hut the two kinds of domicil differ in one respect. The domicil of - - origin is received by operation of Jaw at birth; the domicile of choice is acquired later by the actual removal of an individual to another country accompanied by his animus manendi. The B domicil of origin is determined by the domicil, at the time of the child's birth. of that person upon whom he is legally depende'nt.\n\nA legitimate child born in a wedlock to a living father receives - - the domicil of the father at the time of the-birth; a posthumous\n\nlegitimate child receives that of the mother at that time. A>\n\n0 regards change of domicil, any person not under disability may at any time change his existing domicil and acquire for .himHlf a domicil of choice by the fact of residing in a country other than that. of his domicil of origin with the intemion of con- _ tinuing to_ reside there indefinitely. Forthis purpose residence 'is a mere physical fact,- and means no more than personal D presence in a locality, regarded apart from any of the circumstances attending it. If this physical .fact is accompanied by the required state of mind, neither its character nor its duration is in ' any way material. The state of mind, or animus manendi, which is .\n\nrequired demands that the person whose domicil is the object of the inquiry should have formed' a fixed and settled purpose of E making his principal or sole permanent home in the country of residence, or, in effect, h~ should have formed a deliberate intmtion to settle there. It is also well-established that the onus of proving that a domicilhas been _chosen .in substitution for the domicil of origin lies upon those who assert that the domicil of origin has been lost. The domicil of origin -. continues unless a F lixed and settled intention of abandoning the first domicil and acquiring another as the sole domicil is clearly shown (see Winans\n\nv. Attorney-Genera/.(') In Munro v.\n\nMunro(') Lord Cottenham\n\nst•tes the rule as follows: - ''The domicil of -origin must prevail until the party\n\nhas not only acquired another, but has manifested and carried into execution an intention of abandoning his for _ _ mer -domicil. and acquiring another as his sole domicil. To effect this abandonment of the domicil of origin, and substitute another in its place, it required animo et facto. that is. the choice of a place. actual residence in the place _then chosen and that it shotild be the principal and permanent residence, the spot where he had placed larem rerumque ac fortunarum suarum summam. In fact. there must be both residence and intention. Residence alone has no effect, per se, though it may be most important as a g10und from which to infer intention.\" - -'.\n\n_') [IW!] A.C. 287.\n\n~) 7 er. & Fin. 876 •. •\n\n800 BUl'RE!.IR\n\nCOURT HEl't.JR.'l':i (196/i} 3 .;.<\n\n0.R.\n\nIn Aikman v. Aikman('), Lord Campbell has discussed the ques A tion of the effect on domicil of an intntion to return to the native country, where such intention is attributable to an undefined aml remote contingency. He said:\n\n\"If a man is settled in a foreign country. engaged in some permanent pursuit requiring his residence there, a B mere intention to return to his native country on a doubt ful contingency, will .not prevent such a residence in a foreign country from putting an end to his domicil of origin. But a res~Jence in a foreign country for pleasure, lawful or illicit, which .residence may be changed at any moment, without the violation of any contract or any 0 duty. and is accompanied by an intention of going back to reside in the place of bittll, or the happening of an event which in the course of nature must speedily happen, cannot be considered as indicating the purpose to live and die abroad.\"\n\nOn behalf of the appellant Mr. Aggarwala relied on the de.:ision of the House of Lords in Moorhouse v. Lord(') in which it was held<hat in order to lose a domicil of origin, and to acquire a new domicil, a man must intend q1Jatenus in illo .exuere patriam and there must be a change of nationality, that is natural allegiance\n\nIt is not enough for him to take a house in tile new country. E even with the probability and the belief that he may remain there all the da:ys of his life. But the principle laid down in this case was discussed in Udny v. Udny(\") which decision is the leading authority on what c9nstitute a; domicil, of choice taking the place of a domicil of origin. It is there pointed out by Lord Westbury that the expressions used in Moorhouse v. Lord('), as to the intent F e:x1tere patriam, are calculated to mislead, and go beyond the questi\"\"· of domicil. At page 458 Lord Westbuy states:\n\n\"Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with the G intention of continuing to reside there for an unlimited time. This is description of the circumstances which create or constitute it domicil and not a definition of the term.\n\nThere must be residence freely chosen and not prescribe\" or dictated by any external necessity, such as the ctuties of office; the demands of creditors, or the relief H from illness, and it must be a residence fixed, not for a limited period or particlllar purpose, but general and indefinite in its future cmttemplation. It is true that resi dence, originally temporary or intended for a limited\n\n(') 3 Mac Q., H.L.C. 854. (') 10 H L. Cas. 272. (') L.R 1 HL. Sc. 441.\n\nperiod, may, afterwards become general and unlimite•j; and in such a case, so soon as the change of purpose. or animus monendi, can be inferred, the fact .of domicil is\n\nestablished.\"\n\n[n tbe ne:.t case-Doucet v. Gl?og/; egan(') the Court of Appeal deCl(•ed th2t the testator bad. acquired an English domicil; and one of the main facts relied on was that he had twice married in E'nQlanJ in a manner not conforming to the formalities which ne required by the French Law for the legalisation of marriages of Frenchmen in a foreign country. James L. J. stated as fol lows:\n\n\"Both his marriages were acts c:>f. unmitigaU!d scoundrel'. ism if he was not a domiciled Enghshman. He hroght up his children in this country; he made his will in this country, professing to exercise testamentary rights which he would not have if he hnd not been an Englishman. Then with respect to his declarations. what do they amount to? He is reported to have said that when he had made his fortune he would go back to France. A man who says that, is like a man who expects to reach the horizon and finds it at last no nearer than it was at the beginning of his journey. Nothing can be imagined more indefinite than such declarations. They cannot outweiJh the focts of the testator's life.\"\n\nIn our opinion, the decisions of the English Courts in Udny v. l!ndv(') and Doucet v. Geoghegan(') represent the correct law with regard to change of domicil of origin. We are of the view that the only intention required for a proof of a change of domicil is an intention of permanent residence. In other words, what is required to be established is that the person who is alleged to have changed his domicil of origin has voluntarily fixed the habitation of himself and bis family in the new country. not for a mere special of temporary purpose, but with a present intention of making it hi' permanent home.\n\nAgainst this background of law we have to consider the facts in the present case for deciding whether Narain Raja had adopted India as his permanent residence with the intention of making a clomicil of choice there. In other words, the test is whether Narain Raia had formed the fixed and settled purpose of making his home in India with the intention of establishing himself and his famil) tn India.\n\n(' J 9 Ch. Div. 441.\n\n(') L.R 1 H.L. Sc. 441.\n\nThe following facts i, ave been either admitted by the parties or A found to be established in this case. Narain Raja was educated in Calcutta from 1934 to 1938. From the year 1938 onwards Narain Raja lived in Ramnagar. After Rama Raja's death in 1947 Narain Raja continued to live in Ramnagar, being in possession of properties obtained by him under compromise in 1944. In the course B of his statement Narain Raja deposed that his father had built a palace in Ramnagar between 1934 and 1941 and thereafter Narain Raja himself built a house at Ramnagar. Before he had built his house, Narain Raja lived in his father's palace. There is the partition suit between Narain Raja and his brothers in the year 1942. Exhibits 1(2) and 1(1) are the preliminary and C final decrees granted in that suit. After the partition Narain Raja was looking after the properties which were left joint and was the manager thereof. The extensive forests of Ramnagar estate were not partitioned and they had been left joint.\n\nNarain Raja used to make settlement of the forests on behalf of the Raj and pattas used to be executed by him. After partition, D he and his wife acquired properties in the district of Champaran, in Patna and in other places. Narain Raja and his wife and children possessed 500 or 600 acres of land in the district of Champaran.\n\nNarain Raja managed these properties from Ramnagar. He had also his houses in Bettiah, Chapra, Patna and Benaras. The forest settlements are supported by Exhibits X series, commencing from E 1943, and by Ex. W of the year 1947. Then, there ate registered pattas excluded by Narain Raja of the year 1945, which, are Bxs. WI 3, WI 4, and WI 5. There are documents which prove acquisition of properties in the name of Narain Raja's wife-F(I), F(2). F(3) and F(5). Exhibit F(4) shows the purchase of 11 bighas and odd land at Patna by Ji.larain Raja. It is also important to F notice that Narain Raja had obtained Indian Passport dated March 23, 1949 from Lucknow issued by the Gqvernor-General of India and he is described in that Passport as Indian by birth and nationality and his address is given as Ramnagar of Champaran district. In the course of his evidence Narain Raja said that he had been to Barewa for the first time with his father when he was 10 or G 12 years old. He also said that he had not gone to Barewa for ten years before 1963.\n\nThe High Court considered that for the determination of the B question of domicil of a person at a particular time, the 'course of his conduct and the facts and circumstances before and after that time are relevant. We consider that the view taken by the High Court on this point is correct and for considering the doinicil of Narain Raja on the date of coming into force of the Constitution of India his conduct and facts and circumstances subsequent to the time should also be taken into account. This view is borne\n\nH ..\n\nKEDAR PANDEY v. NARAIN (&ma.swami, J.) 803\n\nout by the decision of the Chancey Co?rt in In re. G_rove Vaucher\n\nv. The Solicitor to the Treasury(') m which the dom1cil .of one Marc Thomegay in 1744 was at issue and various facts and clfcumstances after 17 44 were considered to be relevant. At page 242 of the report Lopes, L. J. has stated :\n\n\"The domicil of an independent person is constituted by the factum of resid.ence !n a coun!fY nd the animus manendi, that is, the mtent10n to reside m that country for an indefinite period. During the argument it was contended that the conduct and acts of Marc Thomegay subsequently to February, 1744, at the time of the birth of Sarah were inadmissible as evidence of Marc Thomegay's intention to permanently reside in this country at that time. It was said that we must not regard such conduct and acts in determining what the state of Marc Thomegay's mind was in February, 1744. For myself I do not hesitate to say I was surprised at such a contention; it. is opposed to all the rules of evidence, and all the authorities with which I am acquainted. I have always understood the law to be, that in order to determine a person's intention at a given time, you may regard not only conpuct and acts before and at the time, but also conduct and aets after the time, assigning to such conduct and acts their relative and proper weight of cogency.\n\nThe law, I thought, was so well-established on that subject that I should not have thought it necessary to allude to this contention, unless I had understood that the prcpriety of admitting this evidence was somewhat questioneci by Lord Justice Fry, a view which I rather now gather from his judgment he has relinquished.\"\n\nWe are, therefore, of opinion that the conduct and activities of Narain Raja subsequent to the year 1949 are relevant but we shall decide the q ue, Lion of his domicil in this case mainly in the light of his conduct and activities prior to the year 1949.\n\nReverting to the history of Narain Raja's life from 1950 onwards, it appears that he had married his wife in 1950. His wife belonged to Darkoti in Himachal Pradesh near Patiala. The marriage had taken place at Banaras. Narain Raja had a son and a daughter by that marriage and according to his evidence the daughter was born in Banaras and the son was born in Bettiah. The daughter prosecutes her studies in Dehradun. In 1950 or 1951 Naraiil Raja had established a Sanskrit Vidalya in Ramnagar in the name of his mother, called Prem Janani Sanskrit Vidyalaya. The story or Narain Raja's political activities is as follows: There was a\n\nUnion Board in Ramnagar before Gram Panchayats had come into existence, of which Narain Raja was the Chairman or President.\n\n(') (1889) 40 Ch. D. 216.\n\n. 80-i SUPREllE\n\nCOURT\n\nREPOBTS\n\n[1965] 3 S.C.R.\n\nAfter Gram Panchayats were establishd, the Union Board A\n\nwas abolished. Narain Raja was a voter m the Gram Panchay:n and he was elected as the Vice-President of the Union called C.D.C.M. Union of Ramnagar. For the General Elections held in 1952 Narain Raja was a voter from Ramnagar Constituency. Tn the- General Election of 1957 he stood as a candidate .opposini: Kedar Pandey. Thereafter, he became the President of the Bettiah B Sub-divisional Swatantra Party and then Vice-President of Champaran District Swataµtra Party.\n\nTaking all the events and circumstances of Narain Raja's lifo into account we are satisfied that Jpng before the ena of 1949 which is the material time under Art. 5 of the Constitution, Narain C Raja had acquired a domiciil of choice in India. In other words, Narain Raja had formed the deliberate intention of making his borne with the intention of permanently establishing himself and his family in India. In our opinion, the requisite animus manendi\n\nha~ been proved and the finding of the High Court is correct.\n\nOn behalf of the appellant Mr. Aggarwala sugested that there were two reasons to show that Narain Raja had no intention ol making his domicil of choice in India Reference was made, in this context, to Ex. lO(c) which is a khatian prepared in 1960.\n\nshowing certain properties standing in the name of Narain Raja\n\nand his brothers in Nepal. It was argued that Narain Raja bnd E property in Nepal and so he could not have any intention of living in India permanently. It is said by the respondent that the total area of land mentioned. in the khatian was about 43 bighas. The case of Narain Raja is that the property had belonged to his natural grandmother named Kanchhi Maiya who had gifted the land to Rama Raja. The land was the exclusive property of Rama F Raja, and after his death, the property devolved upon his sons.\n\nThe case of Narain Raja on this point is proved by a Sanad\n\n<Ex. AA). In any event, we are not satisfied that the circumstance of Narain Raia owning the property covered by Ex. 1 O(c) can outweigh the fact that Narain Raja alone had extensive properties Qin India after the partition decree of the year 1944.\n\n' It was also pointed out on behalf of the appellant that Narain Raja, and before him Rama Raja, had insisted upon designatinu themselves \"Sri 5\" indicating that they belonged to the royal family of Nepal. It was argued on behalf of the appellant that Narain H Raja had clung tenaciously to the title of \"Sri 5\", thereby indicating the intention of not relinquishing the claim to the throne of Nepal if at any future date succession to the throne falls to a junicr member of the family of the King of Nepal. We do. not think there is any substance in this argument. It is likely that Narain\n\nRaja and his father Rama Raja had prefixed the title of \"Sri 5\" to their names owing to the pride of their ancestry and sentimental\n\nan::chrncnt to the traditional title and this circumstance has no bearing on the question of domicil. Succession to throne of Nepal\n\nis gcverned by the rule of primogeniture and it cannot be believed :hat as the second son of his father, Narain Raja could ever hope to ascend to the throne of Nepal, and we think it is unreasonable to suggest that he descr:bcd himself as \"Sri .5\" with the intention of keeping alive his ties with Nepal. There was evidence in this case that Narain Raja's elder brother Shiv Bikram Sah has left mak issues.\n\nFor the reasons expressed, we held that Narain Raja had acquired domicil of choice in India when Art. 5 of the Constitution came into force. We have already referred to the finding of the High Court that Narain Raja was ordinarily resident in India ror 5 years immediately preceding the time when Art. 5 .of the Ccnstitution came into force. It is manifest that the requirements of Arl. 5(c) of the Constitulion are satisfied in this case and the High Court rightly reached the conclusion that Narain Raja was a citizen of India at the relevant time.\n\nWe accordinp, ly dismiss both these appeals with ccsts. One set\n\nAppeals dismissed.", "total_entities": 126, "entities": [{"text": "KEDAR PANDEY", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "KEDAR PANDEY", "offset_not_found": false}}, {"text": "NARAIN BIKRAM SAH", "label": "RESPONDENT", "start_char": 14, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "NARAIN BIKRAM SAH", "offset_not_found": false}}, {"text": "April 15, 1965", "label": "DATE", "start_char": 33, "end_char": 47, "source": "ner", "metadata": {"in_sentence": "KEDAR PANDEY\n\nNARAIN BIKRAM SAH\n\nApril 15, 1965\n\n[P. B. GAJENDRAGADKAR, K N. WANCHOO, M. HIDAYATULLAH AND\n\nV. R.AMASWAMI, JJ.]"}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 50, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K N. WANCHOO", "label": "JUDGE", "start_char": 72, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 86, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 128, "end_char": 149, "source": "regex", "metadata": {}}, {"text": "Art. 5(c)", "label": "PROVISION", "start_char": 157, "end_char": 166, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 173", "label": "PROVISION", "start_char": 481, "end_char": 489, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 796, "end_char": 802, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "India", "label": "GPE", "start_char": 1030, "end_char": 1035, "source": "ner", "metadata": {"in_sentence": "5 of the Constitution, on the material date,\n\nHELD: Assuming that the respondent was not born in the territory of India, on a consideration of all the events and circumstances of his life, he had acquired a domicile of choice in India long before the end of 1949 which is the material time under Art."}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 1097, "end_char": 1103, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 1411, "end_char": 1417, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 5(c)", "label": "PROVISION", "start_char": 1461, "end_char": 1470, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "C. B. Agarwala", "label": "OTHER_PERSON", "start_char": 2455, "end_char": 2469, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, Jagdish Pan<lay, Chinta Subbarao, M. Raja- B gopalan and B. P. lha, for the appellant, Un both the appeals)."}}, {"text": "Jagdish Pan", "label": "OTHER_PERSON", "start_char": 2471, "end_char": 2482, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, Jagdish Pan<lay, Chinta Subbarao, M. Raja- B gopalan and B. P. lha, for the appellant, Un both the appeals)."}}, {"text": "Chinta Subbarao", "label": "OTHER_PERSON", "start_char": 2488, "end_char": 2503, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, Jagdish Pan<lay, Chinta Subbarao, M. Raja- B gopalan and B. P. lha, for the appellant, Un both the appeals)."}}, {"text": "M. Raja- B gopalan", "label": "LAWYER", "start_char": 2505, "end_char": 2523, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, Jagdish Pan<lay, Chinta Subbarao, M. Raja- B gopalan and B. P. lha, for the appellant, Un both the appeals)."}}, {"text": "B. P. lha", "label": "LAWYER", "start_char": 2528, "end_char": 2537, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, Jagdish Pan<lay, Chinta Subbarao, M. Raja- B gopalan and B. P. lha, for the appellant, Un both the appeals)."}}, {"text": "K. P. Varma", "label": "LAWYER", "start_char": 2581, "end_char": 2592, "source": "ner", "metadata": {"in_sentence": "K. P. Varma and D. Goburdhun, for the respondent (In both the appeals)."}}, {"text": "D. Goburdhun", "label": "LAWYER", "start_char": 2597, "end_char": 2609, "source": "ner", "metadata": {"in_sentence": "K. P. Varma and D. Goburdhun, for the respondent (In both the appeals)."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 2698, "end_char": 2707, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. Both these appeals are brought by certificate against the judgment and decree of the High Court of Judicature at Patna dated March 26, 1964, pronounced in Election Appeals Nos.", "canonical_name": "V. RAMASWAMI"}}, {"text": "High Court of Judicature at Patna", "label": "COURT", "start_char": 2797, "end_char": 2830, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. Both these appeals are brought by certificate against the judgment and decree of the High Court of Judicature at Patna dated March 26, 1964, pronounced in Election Appeals Nos."}}, {"text": "Kedar Pandey", "label": "PETITIONER", "start_char": 2922, "end_char": 2934, "source": "ner", "metadata": {"in_sentence": "The appellant-Kedar Pandey and the respondent-Narain Bikram Sah (hereinafter called Narain Raja) were the contesting D candidates in the year 1962 on behalf of the Congress and Swatantra Party respectively for the election to Bihar Legislative Assembly from Ramnagar Constituency in the district of Champaran.", "canonical_name": "KEDAR PANDEY"}}, {"text": "Narain Bikram Sah", "label": "RESPONDENT", "start_char": 2954, "end_char": 2971, "source": "ner", "metadata": {"in_sentence": "The appellant-Kedar Pandey and the respondent-Narain Bikram Sah (hereinafter called Narain Raja) were the contesting D candidates in the year 1962 on behalf of the Congress and Swatantra Party respectively for the election to Bihar Legislative Assembly from Ramnagar Constituency in the district of Champaran.", "canonical_name": "NARAIN BIKRAM SAH"}}, {"text": "Swatantra Party", "label": "ORG", "start_char": 3085, "end_char": 3100, "source": "ner", "metadata": {"in_sentence": "The appellant-Kedar Pandey and the respondent-Narain Bikram Sah (hereinafter called Narain Raja) were the contesting D candidates in the year 1962 on behalf of the Congress and Swatantra Party respectively for the election to Bihar Legislative Assembly from Ramnagar Constituency in the district of Champaran."}}, {"text": "Champaran", "label": "GPE", "start_char": 3207, "end_char": 3216, "source": "ner", "metadata": {"in_sentence": "The appellant-Kedar Pandey and the respondent-Narain Bikram Sah (hereinafter called Narain Raja) were the contesting D candidates in the year 1962 on behalf of the Congress and Swatantra Party respectively for the election to Bihar Legislative Assembly from Ramnagar Constituency in the district of Champaran."}}, {"text": "Patmeshwar Prasad Roy", "label": "RESPONDENT", "start_char": 3292, "end_char": 3313, "source": "ner", "metadata": {"in_sentence": "The nomination papers of the appellant and the respondent and two others-Patmeshwar Prasad Roy and Suleman Khanwere accepted by the Returning Officer without any objection on E January 22, 1962."}}, {"text": "Suleman Khanwere", "label": "PETITIONER", "start_char": 3318, "end_char": 3334, "source": "ner", "metadata": {"in_sentence": "The nomination papers of the appellant and the respondent and two others-Patmeshwar Prasad Roy and Suleman Khanwere accepted by the Returning Officer without any objection on E January 22, 1962.", "canonical_name": "Suleman Khanwere"}}, {"text": "January 22, 1962", "label": "DATE", "start_char": 3396, "end_char": 3412, "source": "ner", "metadata": {"in_sentence": "The nomination papers of the appellant and the respondent and two others-Patmeshwar Prasad Roy and Suleman Khanwere accepted by the Returning Officer without any objection on E January 22, 1962."}}, {"text": "Parmeshwar Prasad Roy", "label": "PETITIONER", "start_char": 3442, "end_char": 3463, "source": "ner", "metadata": {"in_sentence": "Later on the two candidates-Parmeshwar Prasad Roy and ."}}, {"text": "Suleman Khan", "label": "PETITIONER", "start_char": 3470, "end_char": 3482, "source": "ner", "metadata": {"in_sentence": "Suleman Khan-withdrew their candidature~.\n\nAfter the poll the respondent, Narain Raja was declared elected as member of the Bihar Legislative Assembly by majority of valid votes.", "canonical_name": "Suleman Khanwere"}}, {"text": "Narain Raja", "label": "PETITIONER", "start_char": 3544, "end_char": 3555, "source": "ner", "metadata": {"in_sentence": "Suleman Khan-withdrew their candidature~.\n\nAfter the poll the respondent, Narain Raja was declared elected as member of the Bihar Legislative Assembly by majority of valid votes.", "canonical_name": "NARAIN BIKRAM SAH"}}, {"text": "April 11, 1962", "label": "DATE", "start_char": 3652, "end_char": 3666, "source": "ner", "metadata": {"in_sentence": "On April 11, 1962 Kedar Pandey filed an election petition challenging the election of the respondent."}}, {"text": "Kedar Pandey", "label": "PETITIONER", "start_char": 3771, "end_char": 3783, "source": "ner", "metadata": {"in_sentence": "It was alleged F by Kedar Pandey that the respondent was not duly qualified under Art.", "canonical_name": "KEDAR PANDEY"}}, {"text": "Art. 173", "label": "PROVISION", "start_char": 3833, "end_char": 3841, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 3849, "end_char": 3870, "source": "regex", "metadata": {}}, {"text": "Nepal", "label": "GPE", "start_char": 4026, "end_char": 4031, "source": "ner", "metadata": {"in_sentence": "173 of the Constitution of India to be a candidate for election as he was not a citizen of India: According to Kedar Pandey the respondent, bis parents and grand-parents werei all born in Nepal and, therefore, on the date of the election, the respondent- G Narain Raja-was not qualified to be chosen to fill the Assembly seat for which be _had been declared to have been elected."}}, {"text": "G Narain Raja", "label": "RESPONDENT", "start_char": 4093, "end_char": 4106, "source": "ner", "metadata": {"in_sentence": "173 of the Constitution of India to be a candidate for election as he was not a citizen of India: According to Kedar Pandey the respondent, bis parents and grand-parents werei all born in Nepal and, therefore, on the date of the election, the respondent- G Narain Raja-was not qualified to be chosen to fill the Assembly seat for which be _had been declared to have been elected."}}, {"text": "Rama Raja", "label": "RESPONDENT", "start_char": 4333, "end_char": 4342, "source": "ner", "metadata": {"in_sentence": "According to Kedar Pandey the respondent was related to the royal family of Nepal and the father of the respondent-Rama Raja-owned about 43 bighas of land and a house at Barewa in Nepal in which the respondent bad a share along with his three other brothers.", "canonical_name": "Rama F Raja"}}, {"text": "Barewa", "label": "GPE", "start_char": 4388, "end_char": 4394, "source": "ner", "metadata": {"in_sentence": "According to Kedar Pandey the respondent was related to the royal family of Nepal and the father of the respondent-Rama Raja-owned about 43 bighas of land and a house at Barewa in Nepal in which the respondent bad a share along with his three other brothers."}}, {"text": "Art. 173", "label": "PROVISION", "start_char": 4624, "end_char": 4632, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Ramnagar", "label": "GPE", "start_char": 4766, "end_char": 4774, "source": "ner", "metadata": {"in_sentence": "The further case of the respondent was that he had lived in India since his birth and that he was a resident of Ramnagar in the district of Champaran and not of Barewa in Nepal."}}, {"text": "Banaras", "label": "GPE", "start_char": 4875, "end_char": 4882, "source": "ner", "metadata": {"in_sentence": "The respondent claimed that he was born in Banaras and not at Barewa ."}}, {"text": "Narain Raja", "label": "RESPONDENT", "start_char": 5044, "end_char": 5055, "source": "ner", "metadata": {"in_sentence": "nal that the respondent-Narain Raja-was not a citizen of India and.", "canonical_name": "NARAIN BIKRAM SAH"}}, {"text": "Art. 173", "label": "PROVISION", "start_char": 5123, "end_char": 5131, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "High Court. of Judicature at Patna", "label": "COURT", "start_char": 5564, "end_char": 5598, "source": "ner", "metadata": {"in_sentence": "Both the appellant and the respondent preferred separate appeals against the judgment of the Election Tribunal to the High Court."}}, {"text": "Indian", "label": "GPE", "start_char": 6061, "end_char": 6067, "source": "ner", "metadata": {"in_sentence": "The High Court further found that long before the year 1949 Narain Raja had acquired a domicile of choice in Indian territory and, therefore, acquired the status of a citizen of D India both under Art."}}, {"text": "Art. 5(a)", "label": "PROVISION", "start_char": 6149, "end_char": 6158, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Narain Raja", "label": "RESPONDENT", "start_char": 6240, "end_char": 6251, "source": "ner", "metadata": {"in_sentence": "On these findings the High Court took the view that Narain Raja was duly qualified for being elected to the Bihar Legislative Assembly and the election petition filed by the appellant-Kedar Pandey-should be dismissed.", "canonical_name": "NARAIN BIKRAM SAH"}}, {"text": "Bihar Legislative Assembly", "label": "ORG", "start_char": 6296, "end_char": 6322, "source": "ner", "metadata": {"in_sentence": "On these findings the High Court took the view that Narain Raja was duly qualified for being elected to the Bihar Legislative Assembly and the election petition filed by the appellant-Kedar Pandey-should be dismissed."}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 6576, "end_char": 6582, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 6590, "end_char": 6611, "source": "regex", "metadata": {}}, {"text": "Bihar", "label": "GPE", "start_char": 6798, "end_char": 6803, "source": "ner", "metadata": {"in_sentence": "It appears that Ramnagar estate in the district of Champaran in Bihar originally belonged to Shri Prahlad Sen after whose death the estate came into th~ possession of Shri Mohan Vikram Sah, popularly known as Mohan Raja."}}, {"text": "Prahlad Sen", "label": "OTHER_PERSON", "start_char": 6832, "end_char": 6843, "source": "ner", "metadata": {"in_sentence": "It appears that Ramnagar estate in the district of Champaran in Bihar originally belonged to Shri Prahlad Sen after whose death the estate came into th~ possession of Shri Mohan Vikram Sah, popularly known as Mohan Raja.", "canonical_name": ".Prahlad Sen"}}, {"text": "Mohan Vikram Sah", "label": "OTHER_PERSON", "start_char": 6906, "end_char": 6922, "source": "ner", "metadata": {"in_sentence": "It appears that Ramnagar estate in the district of Champaran in Bihar originally belonged to Shri Prahlad Sen after whose death the estate came into th~ possession of Shri Mohan Vikram Sah, popularly known as Mohan Raja."}}, {"text": "Mohan Raja", "label": "OTHER_PERSON", "start_char": 6943, "end_char": 6953, "source": "ner", "metadata": {"in_sentence": "It appears that Ramnagar estate in the district of Champaran in Bihar originally belonged to Shri Prahlad Sen after whose death the estate came into th~ possession of Shri Mohan Vikram Sah, popularly known as Mohan Raja.", "canonical_name": "Mohan Raja"}}, {"text": "Rani Chhatra Kumari Devi", "label": "JUDGE", "start_char": 7024, "end_char": 7048, "source": "ner", "metadata": {"in_sentence": "After the death of Mohan Raja the estate came into the possession of Rani Chhatra Kumari Devi, the vidow of Mohan Rajd, and after the death of Rani Chhatra Kumari Devi, the estate came into the possession of Rama Raja alias Mohan Bikram Sah, the fther of the respondent-Narain Raja.", "canonical_name": "Rani Chh3tra B Kumari Devi"}}, {"text": "Mohan Rajd", "label": "OTHER_PERSON", "start_char": 7063, "end_char": 7073, "source": "ner", "metadata": {"in_sentence": "After the death of Mohan Raja the estate came into the possession of Rani Chhatra Kumari Devi, the vidow of Mohan Rajd, and after the death of Rani Chhatra Kumari Devi, the estate came into the possession of Rama Raja alias Mohan Bikram Sah, the fther of the respondent-Narain Raja.", "canonical_name": "Mohan Raja"}}, {"text": "Rama Raja alias Mohan Bikram Sah", "label": "OTHER_PERSON", "start_char": 7163, "end_char": 7195, "source": "ner", "metadata": {"in_sentence": "After the death of Mohan Raja the estate came into the possession of Rani Chhatra Kumari Devi, the vidow of Mohan Rajd, and after the death of Rani Chhatra Kumari Devi, the estate came into the possession of Rama Raja alias Mohan Bikram Sah, the fther of the respondent-Narain Raja."}}, {"text": ".Prahlad Sen", "label": "OTHER_PERSON", "start_char": 7277, "end_char": 7289, "source": "ner", "metadata": {"in_sentence": "It is in evidence that the daughter of .Prahlad Sen was married to Shri Birendra Vikram Sah, the father of Mohan Raja.", "canonical_name": ".Prahlad Sen"}}, {"text": "Birendra Vikram Sah", "label": "OTHER_PERSON", "start_char": 7310, "end_char": 7329, "source": "ner", "metadata": {"in_sentence": "It is in evidence that the daughter of .Prahlad Sen was married to Shri Birendra Vikram Sah, the father of Mohan Raja."}}, {"text": "Rama Raja", "label": "RESPONDENT", "start_char": 7435, "end_char": 7444, "source": "ner", "metadata": {"in_sentence": "Mohan Raja died without any male issue but during his lifetime he had adopted Rama Raja, the father of the respondent and by virtue of a will executed by Mohan Raja in the year 1904 in fa, mir of his wife Rani Chhatra Kumari Devi the Rani became entitled to the Ramnagar estate on the death of Mohan Raja (which took place in 1912), in preference to the adopted son Rama Raja since the properties belonged to Mohan Raja in his absolute right and not as ancestral properties.", "canonical_name": "Rama F Raja"}}, {"text": "Rani", "label": "OTHER_PERSON", "start_char": 7851, "end_char": 7855, "source": "ner", "metadata": {"in_sentence": "After the death of Rani L/P(ll)5'ur-1;\n\n796 Sl'l'IU•iMF: 1.ouRT REPOR'fS I 1965] :l S.C.R.\n\nChhatra Kumari Devi i11 1937 Rama Raja caine into the posses- A sion of the Ramnagar estate.", "canonical_name": "Ranis"}}, {"text": "Chhatra Kumari Devi", "label": "PETITIONER", "start_char": 7924, "end_char": 7943, "source": "ner", "metadata": {"in_sentence": "After the death of Rani L/P(ll)5'ur-1;\n\n796 Sl'l'IU•iMF: 1.ouRT REPOR'fS I 1965] :l S.C.R.\n\nChhatra Kumari Devi i11 1937 Rama Raja caine into the posses- A sion of the Ramnagar estate."}}, {"text": "Rani Chh3tra B Kumari Devi", "label": "JUDGE", "start_char": 8347, "end_char": 8373, "source": "ner", "metadata": {"in_sentence": "34 of 192, l in Ille Court of Subordinate Judge of Motihari against Rani Chh3tra B Kumari Devi and others claiming title to Ramnagar estate anti for possession of the same on the basis of his adoption by Mohan Raja.", "canonical_name": "Rani Chh3tra B Kumari Devi"}}, {"text": "August 18, 1927", "label": "DATE", "start_char": 8612, "end_char": 8627, "source": "ner", "metadata": {"in_sentence": "The Title Suit and the Rnt Suit were heard together by the Additional Sub-Judge, Motihari who, by his judgment dated August 18, 1927 decreed the Title Suit filed by Rama Raja and .dismissed the Rent Suit filed by Rani Chhatra Kumari Devi."}}, {"text": "High Court of Patna", "label": "COURT", "start_char": 8764, "end_char": 8783, "source": "ner", "metadata": {"in_sentence": "There C\n\nwas an appeal to the High Court of Patna which dismissed the appeal."}}, {"text": "Rant Chhatra Kumari Devi", "label": "JUDGE", "start_char": 8955, "end_char": 8979, "source": "ner", "metadata": {"in_sentence": "The appeal was decided in favour of Rant Chhatra Kumari Devi and the result\n\n.vas that the Title Suit filed by Rama Raja was dismissed and Rent D Suit ti led by Rani Chhatra Kumari Devi was decreed.", "canonical_name": "Rani Chh3tra B Kumari Devi"}}, {"text": "Mohan Vikram Sah alias Mohan Raja", "label": "OTHER_PERSON", "start_char": 9256, "end_char": 9289, "source": "ner", "metadata": {"in_sentence": "In the course of judgment the Judicial Committee did not disturb the findiug of the trial Court that Rama Raja was an adopted son of Shri Mohan Vikram Sah alias Mohan Raja and accepted that finding as correct; but the Judicial Committee held that Ramnagar estate was not the ancestral property of Mohan Raja, but he got that E property by inheritance, he being the daughter's son of Prahlad Sen, the original proprietor of that estate."}}, {"text": "Rani Chhatra Knmari Devi", "label": "JUDGE", "start_char": 10063, "end_char": 10087, "source": "ner", "metadata": {"in_sentence": "After the decision of Privy Council, Rani Chhatra Knmari Devi again came into possession of Ramnagar estate and continued to remain in possession till she died in 1937.", "canonical_name": "Rani Chh3tra B Kumari Devi"}}, {"text": "Bombay", "label": "GPE", "start_char": 10445, "end_char": 10451, "source": "ner", "metadata": {"in_sentence": "There is evidence that Rama Raja died in Bombay and his dead-body was cremated in Banaras."}}, {"text": "Rama Raj~", "label": "RESPONDENT", "start_char": 10547, "end_char": 10556, "source": "ner", "metadata": {"in_sentence": "It is also in evidence that during the lifetime Qf Rama Raj~ there was a partition suit in the year 1942-No.", "canonical_name": "Rama F Raja"}}, {"text": "Subordinate Judge at Motihari", "label": "COURT", "start_char": 10793, "end_char": 10822, "source": "ner", "metadata": {"in_sentence": "This suit was filed on September 29, 1942 in the Court of the Subordinate Judge at Motihari."}}, {"text": "April 16, 1943", "label": "DATE", "start_char": 10870, "end_char": 10884, "source": "ner", "metadata": {"in_sentence": "l (2)-was passed on April 16, 1943 on compromise and the final decree-Ex l'(l) in the suit\n\nw.15 ~3ssed on:May'.!2."}}, {"text": "Aggarwala", "label": "PETITIONER", "start_char": 11366, "end_char": 11375, "source": "ner", "metadata": {"in_sentence": "On behalf of the appellant Mr. Aggarwala put forward the argument that the High Court was not justified in holding that Narain Raja was born in Bnnaras in the year 1918.", "canonical_name": "Aggarwala"}}, {"text": "Bnnaras", "label": "GPE", "start_char": 11479, "end_char": 11486, "source": "ner", "metadata": {"in_sentence": "On behalf of the appellant Mr. Aggarwala put forward the argument that the High Court was not justified in holding that Narain Raja was born in Bnnaras in the year 1918."}}, {"text": "Sheonath Tewari", "label": "WITNESS", "start_char": 11675, "end_char": 11690, "source": "ner", "metadata": {"in_sentence": "to prove his case the appellant - C examined two witnesses-Sheonath Tewari (P.W. 18) and N: D.\n\nPathak (P.W. 15)."}}, {"text": "D.\n\nPathak", "label": "WITNESS", "start_char": 11708, "end_char": 11718, "source": "ner", "metadata": {"in_sentence": "to prove his case the appellant - C examined two witnesses-Sheonath Tewari (P.W. 18) and N: D.\n\nPathak (P.W. 15)."}}, {"text": "Prasad", "label": "WITNESS", "start_char": 12498, "end_char": 12504, "source": "ner", "metadata": {"in_sentence": "On behalf of the respondent R.W.19-G. S.\n\nPrasad was examined to prove that Narain Raja was born at."}}, {"text": "Mamurganj", "label": "GPE", "start_char": 13033, "end_char": 13042, "source": "ner", "metadata": {"in_sentence": "It was explained on behalf of the:resl'ondent thar tho house at Mamurganj in whichthe respondent was born was not ."}}, {"text": "G. S. Prasad", "label": "WITNESS", "start_char": 13486, "end_char": 13498, "source": "ner", "metadata": {"in_sentence": "It was contended on\n\nbh31f of the appellant that there was litigation with regard to properties of Ramnagar estate between the respondent's father and Rani Chhatra Kumari Devi and therefore the evidence of P.W. Y.\n\nG. S. Prasad that Rama Raja was living with Rani Chhatra Kumari n Devi at Ramnagar even during her lifetime cannot <be accepted_\n\ns true."}}, {"text": "Rani Chhatra Kumari n Devi", "label": "JUDGE", "start_char": 13530, "end_char": 13556, "source": "ner", "metadata": {"in_sentence": "It was contended on\n\nbh31f of the appellant that there was litigation with regard to properties of Ramnagar estate between the respondent's father and Rani Chhatra Kumari Devi and therefore the evidence of P.W. Y.\n\nG. S. Prasad that Rama Raja was living with Rani Chhatra Kumari n Devi at Ramnagar even during her lifetime cannot <be accepted_\n\ns true.", "canonical_name": "Rani Chh3tra B Kumari Devi"}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 14560, "end_char": 14566, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Ramnagar Raj", "label": "OTHER_PERSON", "start_char": 14983, "end_char": 14995, "source": "ner", "metadata": {"in_sentence": "Upon this question it was argued before the High Court on C behalf , Qf the respondent that the domicil of origin of Mohan Raja may have been in Nepal but he had acquired a domicile of choice in India after inheriting Ramnagar Raj from his maternal grandfather Prahlad Sen. It was said that Mohan Raja had settled down in India and had married all his 4 Ranis in Ramnagar."}}, {"text": "Prahlad Sen.", "label": "OTHER_PERSON", "start_char": 15026, "end_char": 15038, "source": "ner", "metadata": {"in_sentence": "Upon this question it was argued before the High Court on C behalf , Qf the respondent that the domicil of origin of Mohan Raja may have been in Nepal but he had acquired a domicile of choice in India after inheriting Ramnagar Raj from his maternal grandfather Prahlad Sen. It was said that Mohan Raja had settled down in India and had married all his 4 Ranis in Ramnagar.", "canonical_name": ".Prahlad Sen"}}, {"text": "Ranis", "label": "OTHER_PERSON", "start_char": 15119, "end_char": 15124, "source": "ner", "metadata": {"in_sentence": "Upon this question it was argued before the High Court on C behalf , Qf the respondent that the domicil of origin of Mohan Raja may have been in Nepal but he had acquired a domicile of choice in India after inheriting Ramnagar Raj from his maternal grandfather Prahlad Sen. It was said that Mohan Raja had settled down in India and had married all his 4 Ranis in Ramnagar.", "canonical_name": "Ranis"}}, {"text": "D Rama Raja", "label": "OTHER_PERSON", "start_char": 15209, "end_char": 15220, "source": "ner", "metadata": {"in_sentence": "It was argued, therefore, that at the time when Mohan Raja had adopted D Rama Raja in 1903 Mohan Raja's domicil of choice was India."}}, {"text": "Mohan Raia", "label": "OTHER_PERSON", "start_char": 15326, "end_char": 15336, "source": "ner", "metadata": {"in_sentence": "It was said that by adoption in 1903 Rama Raja became Mohan Raia's son and by fiction it must be taken foal Rama Raja's do:nicii was India as if he was Mohan Raja 's son.", "canonical_name": "Mohan Raja"}}, {"text": "Rama R<1ja", "label": "RESPONDENT", "start_char": 15507, "end_char": 15517, "source": "ner", "metadata": {"in_sentence": "It was contended in the alternative that whatever may have been Rama R<1ja's domicil E hefore 1937 when Rani Chhatra Kumari Devi died, Rama Raja acauired a domicil of choice in India when he came to India ou the death of Rani Chhatra Kumari Devi.", "canonical_name": "Rama F Raja"}}, {"text": "Campbell", "label": "OTHER_PERSON", "start_char": 20064, "end_char": 20072, "source": "ner", "metadata": {"in_sentence": "<\n\n0.R.\n\nIn Aikman v. Aikman('), Lord Campbell has discussed the ques A tion of the effect on domicil of an intntion to return to the native country, where such intention is attributable to an undefined aml remote contingency."}}, {"text": "Westbury", "label": "OTHER_PERSON", "start_char": 21671, "end_char": 21679, "source": "ner", "metadata": {"in_sentence": "It is there pointed out by Lord Westbury that the expressions used in Moorhouse v. Lord('), as to the intent F e:x1tere patriam, are calculated to mislead, and go beyond the questi\"\"· of domicil.", "canonical_name": "Westbury"}}, {"text": "Westbuy", "label": "OTHER_PERSON", "start_char": 21852, "end_char": 21859, "source": "ner", "metadata": {"in_sentence": "At page 458 Lord Westbuy states:\n\n\"Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with the G intention of continuing to reside there for an unlimited time.", "canonical_name": "Westbury"}}, {"text": "James", "label": "JUDGE", "start_char": 23229, "end_char": 23234, "source": "ner", "metadata": {"in_sentence": "James L. J. stated as fol lows:\n\n\"Both his marriages were acts c:>f."}}, {"text": "France", "label": "GPE", "start_char": 23686, "end_char": 23692, "source": "ner", "metadata": {"in_sentence": "He is reported to have said that when he had made his fortune he would go back to France."}}, {"text": "Narain Raia", "label": "RESPONDENT", "start_char": 24821, "end_char": 24832, "source": "ner", "metadata": {"in_sentence": "In other words, the test is whether Narain Raia had formed the fixed and settled purpose of making his home in India with the intention of establishing himself and his famil) tn India.", "canonical_name": "NARAIN BIKRAM SAH"}}, {"text": "Calcutta", "label": "GPE", "start_char": 25152, "end_char": 25160, "source": "ner", "metadata": {"in_sentence": "Narain Raja was educated in Calcutta from 1934 to 1938."}}, {"text": "Patna", "label": "GPE", "start_char": 26222, "end_char": 26227, "source": "ner", "metadata": {"in_sentence": "After partition, D he and his wife acquired properties in the district of Champaran, in Patna and in other places."}}, {"text": "Bettiah", "label": "GPE", "start_char": 26431, "end_char": 26438, "source": "ner", "metadata": {"in_sentence": "He had also his houses in Bettiah, Chapra, Patna and Benaras."}}, {"text": "Chapra", "label": "GPE", "start_char": 26440, "end_char": 26446, "source": "ner", "metadata": {"in_sentence": "He had also his houses in Bettiah, Chapra, Patna and Benaras."}}, {"text": "Benaras", "label": "GPE", "start_char": 26458, "end_char": 26465, "source": "ner", "metadata": {"in_sentence": "He had also his houses in Bettiah, Chapra, Patna and Benaras."}}, {"text": "Ji.larain Raja", "label": "OTHER_PERSON", "start_char": 26884, "end_char": 26898, "source": "ner", "metadata": {"in_sentence": "Exhibit F(4) shows the purchase of 11 bighas and odd land at Patna by Ji.larain Raja."}}, {"text": "March 23, 1949", "label": "DATE", "start_char": 26985, "end_char": 26999, "source": "ner", "metadata": {"in_sentence": "It is also important to F notice that Narain Raja had obtained Indian Passport dated March 23, 1949 from Lucknow issued by the Gqvernor-General of India and he is described in that Passport as Indian by birth and nationality and his address is given as Ramnagar of Champaran district."}}, {"text": "Lucknow", "label": "GPE", "start_char": 27005, "end_char": 27012, "source": "ner", "metadata": {"in_sentence": "It is also important to F notice that Narain Raja had obtained Indian Passport dated March 23, 1949 from Lucknow issued by the Gqvernor-General of India and he is described in that Passport as Indian by birth and nationality and his address is given as Ramnagar of Champaran district."}}, {"text": "Champaran district", "label": "GPE", "start_char": 27165, "end_char": 27183, "source": "ner", "metadata": {"in_sentence": "It is also important to F notice that Narain Raja had obtained Indian Passport dated March 23, 1949 from Lucknow issued by the Gqvernor-General of India and he is described in that Passport as Indian by birth and nationality and his address is given as Ramnagar of Champaran district."}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 27779, "end_char": 27800, "source": "regex", "metadata": {}}, {"text": "Marc Thomegay", "label": "OTHER_PERSON", "start_char": 28100, "end_char": 28113, "source": "ner", "metadata": {"in_sentence": "G_rove Vaucher\n\nv. The Solicitor to the Treasury(') m which the dom1cil .of one Marc Thomegay in 1744 was at issue and various facts and clfcumstances after 17 44 were considered to be relevant."}}, {"text": "Lopes", "label": "JUDGE", "start_char": 28241, "end_char": 28246, "source": "ner", "metadata": {"in_sentence": "At page 242 of the report Lopes, L. J. has stated :\n\n\"The domicil of an independent person is constituted by the factum of resid.ence !"}}, {"text": "Sarah", "label": "OTHER_PERSON", "start_char": 28598, "end_char": 28603, "source": "ner", "metadata": {"in_sentence": "During the argument it was contended that the conduct and acts of Marc Thomegay subsequently to February, 1744, at the time of the birth of Sarah were inadmissible as evidence of Marc Thomegay's intention to permanently reside in this country at that time."}}, {"text": "Fry", "label": "JUDGE", "start_char": 29559, "end_char": 29562, "source": "ner", "metadata": {"in_sentence": "The law, I thought, was so well-established on that subject that I should not have thought it necessary to allude to this contention, unless I had understood that the prcpriety of admitting this evidence was somewhat questioneci by Lord Justice Fry, a view which I rather now gather from his judgment he has relinquished.\""}}, {"text": "Himachal Pradesh", "label": "GPE", "start_char": 30041, "end_char": 30057, "source": "ner", "metadata": {"in_sentence": "His wife belonged to Darkoti in Himachal Pradesh near Patiala."}}, {"text": "Patiala", "label": "GPE", "start_char": 30063, "end_char": 30070, "source": "ner", "metadata": {"in_sentence": "His wife belonged to Darkoti in Himachal Pradesh near Patiala."}}, {"text": "Dehradun", "label": "GPE", "start_char": 30302, "end_char": 30310, "source": "ner", "metadata": {"in_sentence": "The daughter prosecutes her studies in Dehradun."}}, {"text": "Naraiil Raja", "label": "RESPONDENT", "start_char": 30328, "end_char": 30340, "source": "ner", "metadata": {"in_sentence": "In 1950 or 1951 Naraiil Raja had established a Sanskrit Vidalya in Ramnagar in the name of his mother, called Prem Janani Sanskrit Vidyalaya.", "canonical_name": "NARAIN BIKRAM SAH"}}, {"text": "Prem Janani Sanskrit Vidyalaya", "label": "OTHER_PERSON", "start_char": 30422, "end_char": 30452, "source": "ner", "metadata": {"in_sentence": "In 1950 or 1951 Naraiil Raja had established a Sanskrit Vidalya in Ramnagar in the name of his mother, called Prem Janani Sanskrit Vidyalaya."}}, {"text": "Champaran District Swataµtra Party", "label": "ORG", "start_char": 31223, "end_char": 31257, "source": "ner", "metadata": {"in_sentence": "Thereafter, he became the President of the Bettiah B Sub-divisional Swatantra Party and then Vice-President of Champaran District Swataµtra Party."}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 31418, "end_char": 31424, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Narain C Raja", "label": "RESPONDENT", "start_char": 31446, "end_char": 31459, "source": "ner", "metadata": {"in_sentence": "5 of the Constitution, Narain C Raja had acquired a domiciil of choice in India.", "canonical_name": "NARAIN BIKRAM SAH"}}, {"text": "Aggarwala", "label": "PETITIONER", "start_char": 31808, "end_char": 31817, "source": "ner", "metadata": {"in_sentence": "On behalf of the appellant Mr. Aggarwala sugested that there were two reasons to show that Narain Raja had no intention ol making his domicil of choice in India Reference was made, in this context, to Ex.", "canonical_name": "Aggarwala"}}, {"text": "Kanchhi Maiya", "label": "OTHER_PERSON", "start_char": 32438, "end_char": 32451, "source": "ner", "metadata": {"in_sentence": "The case of Narain Raja is that the property had belonged to his natural grandmother named Kanchhi Maiya who had gifted the land to Rama Raja."}}, {"text": "Rama F Raja", "label": "RESPONDENT", "start_char": 32529, "end_char": 32540, "source": "ner", "metadata": {"in_sentence": "The land was the exclusive property of Rama F Raja, and after his death, the property devolved upon his sons.", "canonical_name": "Rama F Raja"}}, {"text": "Narain H Raja", "label": "RESPONDENT", "start_char": 33163, "end_char": 33176, "source": "ner", "metadata": {"in_sentence": "It was argued on behalf of the appellant that Narain H Raja had clung tenaciously to the title of \"Sri 5\", thereby indicating the intention of not relinquishing the claim to the throne of Nepal if at any future date succession to the throne falls to a junicr member of the family of the King of Nepal.", "canonical_name": "NARAIN BIKRAM SAH"}}, {"text": "Narain\n\nRaja", "label": "RESPONDENT", "start_char": 33495, "end_char": 33507, "source": "ner", "metadata": {"in_sentence": "It is likely that Narain\n\nRaja and his father Rama Raja had prefixed the title of \"Sri 5\" to their names owing to the pride of their ancestry and sentimental\n\nan::chrncnt to the traditional title and this circumstance has no bearing on the question of domicil.", "canonical_name": "NARAIN BIKRAM SAH"}}, {"text": "Shiv Bikram Sah", "label": "OTHER_PERSON", "start_char": 34139, "end_char": 34154, "source": "ner", "metadata": {"in_sentence": "There was evidence in this case that Narain Raja's elder brother Shiv Bikram Sah has left mak issues."}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 34274, "end_char": 34280, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 34474, "end_char": 34480, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]}
{"document_id": "1965_3_806_810_EN", "year": 1965, "text": "JAGDISH PRASAD\n\nSTATE OF U.P.\n\nApril 15, 1965\n\n[A. -K. SARKAR, RAGHUBAR DAYAL AND R. S. BACHAWAT, JJ.J\n\nPrevention of Food Adulteration Act, 1954-Higher punwhment for \"second o:[J'ence\"·-Meaning of \"second offence\"-Whether offence of the same type or offence subsequent in tim~, C\n\nThe appellant having been once convicted under the Prevention of Food Adulteration Act, 1954 for keeping foodstuff for sale in d\n\ncontainer without coverini< it, was for a second time convicted for .selling foodstuff which had been coloured with a prohibited dye.\n\nTreating the latter conviction as a \"second offence\" under s. 16(1) of the Act the Trial Court sentenced the appellant to two years D imprisonment. Having failed to get r.edress in the High Court he appealed to this Court by special leave.\n\nIt was contended on behalf of the appellant that the \"second o'i'ence\" contemplated by s. 16(1) was an offence of the same kind as the first and not any offence under the Act.\n\nHELD: (i) The word second in the expression \"second offence\" in s. 16(1) means second in time, and not second of the same type.\n\nThe section does not say \"second offence\" of the same type; the latter words are not there. On the other hand from the phrase 'subsequen't offences' used in the section in respect of offences subsequent\n\nto the third one, it is clear that the words 'first', 'second' and 'third' were intended to indicate things happening one after another in F point of time.\n\n[808 BJ\n\nThe object of the sub-section is cjearly to prevent repetition of offences. That is why for the offence subsequently committed a heavier sentence is providd. No object could have been served by seeking to stop the repetition of the same type of conduct only.\n\n(808 E-FJ\n\n(ii) There is no foundation in the Act for distinguishing between trivial and serious offences and then arguing that the Act could not have intended to impose a heavier punishment for a second offence which might be of a less serious nature than the first. The Act provides the same punishment for each offence under it. If the punishment is the same, it would follow that the statute considered them to be of the same seriousness. [808 HJ\n\n(iii) The \"second: offence~ mus~ be an offence under he A~\n\nalthoug~ it is not specifically so stated. Section 16(1) says that .1f any person does any of the acts mentioned in els. (a) to (g) in it, he shall be punishable for the first offence with a certain pealty, for the second offence with a higher penalty, and for the third a still. higher penalty. It is clear that the acts or omissions mentioned\n\nJAGDISH PRASAD v. STATE (Sa; rkar, J.) 807\n\nin the different clauses constitute the offences for which the penalties are provided. From this structure of the sub-section the implication necessarily arises that the penalties were imposed for offences under the Act only. [809 E-F] City Board, Saharanpur v. Abdul Wahid, A.LR. (1959) All. 695, Chuttan v. State, A.LR. (1950) All. 629 and In re Authers, (1889), L.R. 22 Q.B.D. 345, referred to.\n\nCRIMINAL APPELLATE JurusmcTION: Criminal Appeal No. 43 of 1965.\n\nAppeal by special leave from the judgment and order dated November 10, 1964 of the Allahabad High Court in Criminal Revision No. 2097 of 1963.\n\nB. C. Misra, for the appellant.\n\n0. P. Rana, for the respondent.\n\nThe Judgment of the Court was delivered by.\n\nSarkar, J. This appeal raises a question of construction of sub-s. (I) of s. 16 of the Prevention of Food Adulteration Act, 1954. The sub-section in providing for punishment for\n\nbreaches of the Act slates, \"for a second offence, with imprisonment for a term which may extend to two years and with fine\".\n\nIn respect of the first offence it provides for a smaller sentence.\n\nThe question is whether the appellant was liable to punishment £or a second offence. The order of this Court granting leave to appeal confind it only to that question.\n\nIt appears that on an earlier occasion the appellant kept foodstuff for sale in a container without covering it as required by sub-r. (3) of r. 49 of the rules made under the Act and was thereupon convicted under s. 16 and sentenced to a fine of Rs. 40/- as tor a first offence. This time he has been convicted for selling foodstuff which had been coloured with a dye the use of which was\n\nprohibited by r. 28 of the same rules.\n\nG Learned counsel for the appellant stated that the present was not a second offence. if we have understood his arguments correctly, and we confess to some difficulty in understanding them, he said that the second offence contemplated is an offence constituted by the same kind or type of act for which he had been convicted under the Act on an earlier occasion. According to him, if H the present conviction was for keeping foodstuff'intended for sale in a container not covered as required by sub-r. (3) of r. 49, then only it would have been for a second offence, but as the conviction in the present case was for selling foodstuff coloured with prohibited dye, it was not for a second offence.\n\nThis contention does not seem to us to be acceptable. The real question is, What do the words 'second offence' mean? Learned\n\nSUPREME\n\n(:OUR1' REl'ORTS\n\n[ 1965) 3 S.C.R.\n\ncounsel for the appellant referred us to Webster's New World Dk A tionary where one of the meanings of the word 'second' has been stated to be 'of the same kind as another'. That meaning cannot be attributed to that word in the sub-section. It increases the penalties as the offences are 'first', 'second' or 'third'. Thus it states, \"for a third and subsequent offences, with imprisonment for a term B which may extend to four years and with fine\". The word 'subsequent' makes it clear that the words 'first', 'second' and 'third' were intended to indicate things happening one after another in point of time. Sub-section (2) of s. 16 also leads to the same conclusion. It says, \"If any person convicted of an offence under this Act commits a like offence afterwards\", the subsequent conviction c\n\nnd the penalty imposed with his name and address may be published in a newspaper at his expense. The word \"afterwards\" clearly indicates that the statute was contemplating offences committed subsequently and was indicating a sequence of time. In the dictionary to which learned counsel referred, the meaning on which he relies is illustrated by the following sentence, \"There has been no D second Shakespeare\". It seems plain to us that the meaning conveyed by the word 'second' in this sentence cannot be attributed to the word 'second' as used in the .sub-section.\n\nThen as regards the word \"offence\" in the expression \"second offence\", we find no justification for confining it to an offence con- E stituted by the same type or kind of conduct as the previous offence. The sub-section does not say \"second offence\" of the same type; the latter words are not there. The object of the sub-section clearly is to prevent repetition of offence~. That is why for the offence subsequently committed a heavier sentence is provided.\n\nWe cannot imagine what object would have been served by seek- F ing to stop the repetition of the same type of conduct only. The Act no doubt intends to prevent the doing of various acts by punishing them. That object is better served by imposing a heavier penalty when a person repeats any of such offensive acts .. The gravamen of the charge of a second offence is the repetition of any offence under the Act and not the repetition of one of the various types G of offences mentioned in it. Any interpretation which would not carry out the object of the Act would be unnatural. We, therefore, think that the words \"second offence\" mean any offence under the Act committed by a person after his conviction earlier for any <me of the offences punishable under the Act.\n\nIt was said that it would be strange if the Act intended to impose a lieavier punishment for a second offence which might be of a trivial nature while the first offence which might have been of a serious nature entailed a lighter punishment. This contention is falladous. There is no foilndation in the Act for distinguishing between trivial and serious offences, for the Act provides the \"same punishment for each offence under it. If the punishment is\n\n. UGDISII PllASAD v. STATE (Sakar, J.) ., . 8011 .\n\n'-\"\" ,.,_',.;,. tht\" same, it would follo\": that the sttute _considered. thm to be of the same seriousness. T ne weakness, of this argument will further appear if we consider a case where the first offe.nce was of what is called a trivial nature and the second, of a serious nature though constituted by different acts. Itwould be equally strange if the Act iii such a case contemplated the same punishment for the sul:>- scquent and serious offence as would be the case. if the subsequent ottence was not a \"seoond offence\", This contention lends JlO support to the interpretation sggested by learned counsel for the .\n\nappellant. Learned counsel then said that the word \"offence\" has to be understood as defined in s. 2(38l of the General Clauses Act, 1897, and therefore means any act or omission made punishable by. any law for the time being in force. If we substitute this definition for the word \"offence\" in the provision now under consideration, it will mean an act made punishable by the law. That law must be the present Act. This does not assist learned counsel's contention at all; it really goes against him.\n\n The word \"offence\" no doubt, refers to an offence under the 'Act. It.cannot possibly meari any offence under any other Act. This view has inv:iriably been taken in all the cases which have been cited to us: see City Board, Saharanpur v. Abdul Wahid(') and Chuttan v .. State('). In In re A uthers(') it was said, \"where-the E legislature passes a statute and imposes a penalty of 50 I. for.a. first offence, it must mean, in the absence of express words to . the contrary, that the conviction for the first offence must be under that Act, and the second conviction under the same Act; if it were otherwise, it would be idle to introduce the. warning of a lower\n\npenalty for the first offence, and to impose a higher penalty for the second.\" This case supports our interpretation of the words \"second offence\" based on the object of the Act.\n\nLearned counsel for the appellant no doubt agrees that the . second offence must refer to an offence under the Act but he says that since it would amount to adding the words \"under the Act\", it would justify the addition of further words implying that the second offence had to be of the same type as the first. This. is a · whoUy unfounded contention. lfhe offence contemplated in the expression \"second offence\" has to be under the Act because that arises from the object of the Act arid. as we shall later shQw, from the necessary implication of the structure of the sul:>-section. There is. no such reason to confine the second offence to an offence of · the same type. We have so far been dealing orJy with that portion of sub-s. (!) of s. 16 which concerns the penalty for the second offence. Con-·\n\nsidering the sub-section as a whole we find that it supports the-\n\n(') AI.R. 1959 All. 695. (') AI.R. 1960 All. 629.\n\n(') 11889), L.R. 22 Q.B.D. 345, 349. -\n\nI - --\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n[1965) 3 8.C.B.\n\ninterpretationc of the expressiOn \"seCO:nd offence\" which has appeal- A ed to us. It says that if any person does any of the acts mentioned in els. (a) to (g) in it, he shall be punishable for the first offence with a certain penalty, for the second offence with a higher penalty and for the third a still higher penalty. It is clear that the acts or omissions mentioned in the different clauses constitute offences for which the penalties are provided. From this structure of the sub- B section the implication necessarily arises that the penalties were imposed for offences under the 1\\ct only. Now cl. (a) deals With a person importing, manufacturing for sale, storing, selling, or distributing any article of food. in contravention of the provisions of the Act or of any rule made thereunder. This clause contemplates the breaches of various provisions of the C Act and the rules, which are numerous. It covers various types of conduct, act or omission, each of which is punishable and each of which is, therefore, an offence. Turning next to that part of the sub-section which prescribes penalties, we find it provides increasing degrees of punishment for the second offence and the third and D subsequent offences. It follows that an offence contemplated in this part of the statute-and with It we are now directly concerned-- would be constituted by any of the acts which would come within\n\ncl. (a) and likewise within all the other clauses following it. We have pointed out that the acts and omissions contemplated there are of diverse kinds. The words \"second offence\" must, therefore, E mean any act which is an offence under any.of the clauses in the sub-section .which has been done later in point of time after a con- . viction for an offence under the Act, no matter whether the acts or omissions constituting the two offences are of the same type or not. The appellant must, therefore, be held to have committed the second offence within the meaning of the sub-section on the pre- F sent occasion and was liable to have the heavier punishment awarded to him. The sentence awarding such punishment is unexceptionable.\n\nThe appeal fails and it is hereby dismissed.\n\nG Appeal dismissed.", "total_entities": 22, "entities": [{"text": "JAGDISH PRASAD", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "JAGDISH PRASAD", "offset_not_found": false}}, {"text": "STATE OF U.P", "label": "RESPONDENT", "start_char": 16, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P", "offset_not_found": false}}, {"text": "April 15, 1965", "label": "DATE", "start_char": 31, "end_char": 45, "source": "ner", "metadata": {"in_sentence": "JAGDISH PRASAD\n\nSTATE OF U.P.\n\nApril 15, 1965\n\n[A. -K. SARKAR, RAGHUBAR DAYAL AND R. S. BACHAWAT, JJ.J\n\nPrevention of Food Adulteration Act, 1954-Higher punwhment for \"second o:[J'ence\"·-Meaning of \"second offence\"-Whether offence of the same type or offence subsequent in tim~, C\n\nThe appellant having been once convicted under the Prevention of Food Adulteration Act, 1954 for keeping foodstuff for sale in d\n\ncontainer without coverini< it, was for a second time convicted for .selling foodstuff which had been coloured with a prohibited dye."}}, {"text": "A. -K. SARKAR", "label": "JUDGE", "start_char": 48, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR*", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL", "label": "JUDGE", "start_char": 63, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ", "label": "JUDGE", "start_char": 82, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Prevention of Food Adulteration Act, 1954", "label": "STATUTE", "start_char": 104, "end_char": 145, "source": "regex", "metadata": {}}, {"text": "appellant having been once convicted under the Prevention of Food Adulteration Act, 1954", "label": "STATUTE", "start_char": 286, "end_char": 374, "source": "regex", "metadata": {}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 606, "end_char": 614, "source": "regex", "metadata": {"linked_statute_text": "The appellant having been once convicted under the Prevention of Food Adulteration Act, 1954", "statute": "The appellant having been once convicted under the Prevention of Food Adulteration Act, 1954"}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 875, "end_char": 883, "source": "regex", "metadata": {"linked_statute_text": "The appellant having been once convicted under the Prevention of Food Adulteration Act, 1954", "statute": "The appellant having been once convicted under the Prevention of Food Adulteration Act, 1954"}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 1029, "end_char": 1037, "source": "regex", "metadata": {"linked_statute_text": "The appellant having been once convicted under the Prevention of Food Adulteration Act, 1954", "statute": "The appellant having been once convicted under the Prevention of Food Adulteration Act, 1954"}}, {"text": "Section 16(1)", "label": "PROVISION", "start_char": 2279, "end_char": 2292, "source": "regex", "metadata": {"linked_statute_text": "There is no foundation in the Act for distinguishing between trivial and serious offences and then arguing that the Act", "statute": "There is no foundation in the Act for distinguishing between trivial and serious offences and then arguing that the Act"}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 3173, "end_char": 3193, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated November 10, 1964 of the Allahabad High Court in Criminal Revision No."}}, {"text": "B. C. Misra", "label": "LAWYER", "start_char": 3234, "end_char": 3245, "source": "ner", "metadata": {"in_sentence": "B. C. Misra, for the appellant."}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 3270, "end_char": 3277, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the respondent."}}, {"text": "Sarkar", "label": "JUDGE", "start_char": 3345, "end_char": 3351, "source": "ner", "metadata": {"in_sentence": "Sarkar, J. This appeal raises a question of construction of sub-s. (I) of s. 16 of the Prevention of Food Adulteration Act, 1954."}}, {"text": "s. 16", "label": "PROVISION", "start_char": 3419, "end_char": 3424, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Food Adulteration Act, 1954", "label": "STATUTE", "start_char": 3432, "end_char": 3473, "source": "regex", "metadata": {}}, {"text": "s. 16", "label": "PROVISION", "start_char": 4102, "end_char": 4107, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Food Adulteration Act, 1954", "statute": "the Prevention of Food Adulteration Act, 1954"}}, {"text": "s. 16", "label": "PROVISION", "start_char": 5819, "end_char": 5824, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act, 1897", "label": "STATUTE", "start_char": 9026, "end_char": 9051, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 16", "label": "PROVISION", "start_char": 11002, "end_char": 11007, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_811_817_EN", "year": 1965, "text": "COMMISSIONER OF INCOME-TAX, ASSAM ETC.\n\nTHE PANBARI TEA CO. LTD.\n\nApril 19, 1965\n\n[K. SUBBA RAO, J. C. SHAH AND S. M. SIKRI, JJ.J\n\nIndian Income-tax Act (11 of 1922)-\"Premium\" and \"rent\"- Distinction-Premium paid in instalments-Whether caPitai gains or revenue receipts.\n\nThe assessee leased out its tea estates for a period of ten years in consideration of a sum as and by way of premium and an annual rent to be paid by the lessor to the assessee. As premium a part of the sum was paid at the time of the execution of the lease and the balance was spread over in ten annual instalments; and the annual rent was payable in monthly instalments. The annual instalment paid as premium was taxed by the Income Tax authorities as revenue receipt of the assessee. On reference, the High Court held it to be capital gains. In appeal by certificate.\n\nHELD: The annual instalmeni paid as premium was capital gains.\n\nWhen the interest of the lessor is parted for a price the price paid is premium or salami. But the periodical payments made for the continuous enjoyment of the benefits under the lease are in the nature (, f rent. The former is a capital income and the latter a revenue receipt.\n\nThere may be circumstances where the parties may camouflage the real nature of the transaction by using clever phraseology. In some cases, the sci-called premium is in fact advance rent and in others rent is a deferred price. It is not the form but the substance of the transaction that matters. The nomenclature used may not be decisive or conclusive but it helps the court, having regard to the other circumstances, to ascertain the intention of the parties.\n\nPremium can be paid in a single payment or by instalments. The real test is whether the said amount paid in a lump sum or in instalments is the consideration paid by the tenant for being let into possessi001.\n\n[813 H; 814 E-G]\n\nRaja Bahadur Kamakshya Narain Singh of Ramgarh v.\n\nCommissioner of Income-tax, Bihar and Orissa, (1943) 11 I.T.R. 513 Member for the Board of Agriculture Income-tax Assam v. Sindhurani Chaudhurani, (1957) 32 I.T.R. 169, and Chintamani Saran Nath Sah Dea v. Commissioner of Income-tax, Bihar and Orissa, (1961)41 I.T.R. 506, applied.\n\nThe parties, who were businessmen well-versed in their trade must be assumed to have known the differene between the two ex~ pressions 'premium\" and \"rent\", and they had designedly used those two expressions to connote two different payments. The annual rent fixed was a considerable sum of Rs. 54,500/- and the premium, when spread over 10 years would work out to Rs. 22,500 /- a year. There was no reason. therefore, to assume that the parties camouflaged their real intention and fixed a part of the rent in the hape of premium. The J,/P(D)5SC f--13 811\n\n812 Rlil>UEME l.'OUR'l' Rli!POR'l'.~\n\n[1965] 3 S.C.R.\n\nmere fact that the premium was made payable in instalments could .l\n\nnot obviously be decisive of the question, for that might have been to accommodate the lessee. [815 B, C]\n\nThe construction based on the clause in the lease deed that on the\n\ndfault in the payments of the instalments of the premium or rent, the lessor shall be entitled to recover the balance of the unpaid premium and not the entire balance of the premium, really ignores the main terms of the lease. In the context of the other clauses, this cl.ause B could not be so construed as to override or come into conflict with the main terms of the lease deed. [815 H, 816 BJ .\n\nC1v1L APPELLATE JURISDICTION: Civil Appeal No. 150 of 1964.\n\nAppeal frbm the judgment and order dated March 22, .1960, of the Assam High Court in Income-tax Reference No. 7 of 1959.\n\nC N. D. Karkhanis and R. N. Sachthey, for the appellant. Sampat Ayyangar and J. P. Goyal, for the respondent.\n\nThe Judgment of the Cou.rt was delivered by\n\nSobba Rao, J.\n\nBy a registered lease deed dated March 31, 1950, the assessee-company, respondent herein, leased out two tea D estates named \"Panbari Tea Estate'' and \"Barchola Tea Estate\", aloug with machinery and buildings owned and held by it, in Darrang, in the State of Assam, to a firm named Messrs. Hiralal Ramdas for a period of ten years commencing from January l, 1950.\n\nThe lease was executed in consideration of a sum of Rs. 2,25,000 /- as and by way of premium and an annual rent of Rs. 54,000 /- to E be paid by the lessee to the lessor. The premium was made payable as follows: Rs. 45,000/- to be paid in one lump sum at the time of the execution of the lease deed and the balance of Rs. 1,80,000/- in 16 half yearly instalments of Rs. 11,250/- Im or before January 31 and July 31 of each year. The annual rent of Rs. 54,000 /- was payable as follows: Rs. 1,000/- per month to be paid on or before F the last day of each month, making in all Rs. 12,000/- per year, and the balance of Rs. 42,000/- on or before December 31 of each year. On February 25, 1957, for the assessment year 1952-53, the Income-tax Officer made the assessment treating the instalment of Rs. 11,250 /- paid towards the premium in the relevant account- G ing year as a revenue receipt of the assessee. On appeal, the Appellate Assistant Commissioner confirmed the order of the Incometax Officer. On further appeal, the Income-tax Appellate Tribunal also held that the premium was really the rerit payable under the lease deed and, therefore, it was chargeable to income-tax. At the instance of the assessee, the Tribunal referred the following ques- H tion to the High Court under s. 66(1) of the Income-tax Act, .1922, ' herein after called the Act:\n\n\"Whether on the facts and in the circumstances of the case\n\n and upon the construction of the terms of the lease, dated 31st March 1950, the sum of Rs. 11,250/- received by the assessee during the year of account is re: venue or capital receip_t\".\n\nA The High Court held that the said sum of Rs. l l,25_D/- receved by the assessee during the year of account was a capital receipt and answered the question accordingly. On a certificate issed y the High Court, this appeal has been filed by the Revenue ID this\n\nCourt.\n\nB The short question that arises in this appeal is whether the amount described as premium in the lease deed is really rent and, therefore, a revenue receipt. Before we look at the lease deed it will be convenient to notice briefly the law pertaining to the concept of premium, which is also described as salami.\n\nC The distinction between premium and rent was brought out by\n\nthe Judicial Committee in Raja Bahadur Kamakshya Narain Singh of Ramgarh v. , Commissioner of Income-tax, Bihar & Orissa (') thus:\n\n\"It (salami) is a single payment made for the acquisition of the right of the lessee to enjoy the benefits granted to them by the lease. That general right may properly be regarded as a capital asset, and the money paid to purchase it may properly be held to be a payment on capital account. But the royalties are on a different footing\".\n\nIt is true that in that case the leases were granted for 999 years; but, thbugh it was one of the circumstances, it was not a decisive\n\nfactor in the Judicial Committee coming tG the conclusion that the salami paid under the leases was a capital asset. This Court in Member for the Board of Agriculture Income-tax. Assam v. Sind- F hurani Chaudhurani (') defined \"salami\" as follows:\n\n\"The indicia of salami are (I) its single non-recurring character and (2) payment prior to the creation of the tenancy. It is the consideration paid by the tenant for being let into possession and can be neither rent nor revenue but is a capital receipt in the hands of the landlord.\"\n\nIt is true that in that case the payment was paid in a single lump\n\nsm, but that was not a. conclusive test, for salami can be paid in a smgle payment or by mstalments.\n\nThe real test is whether the said amount paid in a lump sum or in instalments is the consideration paid by the tenant for being let into possessibn. This Court again in Chintamani Saran Nath Sah Deo v. Commissioner of Income-tax, Bihar & Orissa(') considered all the relevant decisions on the subject in the context of licences granted to the assessee to\n\n(') [1943] 11 I.T !<. 513, 519.\n\n(') [1957] 32 I.T.R 169.\n\nIUPJl.J:llE COUB.'l' RBPOltTS [1965] :1 s.c.a.\n\n prospect for bauxite in some cases for 6 months and in others for A a year or two and observed:\n\n\"The definition of salami was a general one, in that it was a consideration paid by a tenant for being let into possession for the purpose of creating a new tenancy.\"\n\nApplying that test tlilis Court held in that case that under the said licences there was a grant of a right to a portion of the capital of the licensor in the shape of a general right to the capital asset.\n\nIn view of these three decisions it is aot necessary to multiply citations.\n\nc Under s. 105 of the Transfer of Property Act, a lease of immovable property is a transfer of a right to enjoy the property made for a certain time, express or implied or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, D who accepts the transfer on such terms.\n\nThe transferor is called the lessor, the transferee is called the lessee, the price is called the\n\npremium, and the money, share service or other thing to be so rendered is called the rent.\n\nThe section, therefore, brings out the distinction between a price paid for a transfer of a right to enjoy the property and the rent to be paid periodically to the lessor.\n\nE When the interest of the lessor is parted with for a price, the price µaid is premium or salami.\n\nBut the periodical payments made for the continuous enjoyment of the benefits under the lease are in the nature of rent.\n\nThe fom1er is a capital income and the latter a revenue receipt. There may be circumstances where the parties may amouflage the real nature of transaction by using clever F phraseology.\n\nIn some cases, the so-called premium is in fact advance rent and in oth.ers rent is deferred price. It is not the form but the substance of the transaction that matters. The nomenclature used may not be decisive or conclusive but it helps the Court, having regard to the other circumstances, to ascertain the intention of the parties.\n\nBearing the said principles in mind let us scrutinize the lease deed dated March 31, 1950. Under that document interest in two\n\nlarge. tea estates comprising 320 acres and 305 acres respectively under tea, along with the bungalows, factory buildings, houses. godowns. cooly lines and other erections and structures, was parted H by the lessor to the lessee for a period of 10 years; and during that period the lessee could enjoy the said tea estates in the manner prescribed in the document.\n\nUnder the document, therefore, there was a transfer of substantive interest of the lessor in the estates to the lessee and a conferment of a right on the lessee to use the said estates by exploiting .the same. Under cl. 4 of the lease deed for the transfer of the right a premium of Rs. 2.25.000/- bad to be\n\n' ~·\n\n- ...\n\nC.I.T. !'. PA:<HAH! TEA co. (Subba Rao, J.) 816\n\npaid to the lessor and for using the estates the lessee had to pay, an annual rent of Rs. 54,000/-. Both the premium and the rent were payable in instalments in the manner provided in the document.\n\nThe parties were businessmen presumably well-versed in the working of tea estates. They must be assumed to have known the difference between the two expressions \"premium\" and \"rent\"; and they had designedly used those two expressions to connote two different payments. The annual rent fixed was a considerable sum of Rs. 54,000/- and the premium, when spread.' over 10 years, would work out to Rs. 22,500/- a year. There is no reason, therefore, to assume that the parties camouflaged their real intention and fixed a part of the rent in the shape of I1_femium .. The mere fact that the premium was made payable i11 \"instalments cannot obviously be decisive of the question, for that inight have been to accommodate the lessee. Nor is cl. 8 of the lease deed, on which\n\nstrong reliance is placed by the learned counsel for the Revenue, a pointer to the contrary. It reads:\n\n\"(I) If any of the aforesaid instalments towards the premium or annual rent shall remain unpaid for two months after becoming payable (whether formally demanded or not) or if the lessee shall make default in payment to the Lessor any other sum or any part thereof in due dates or in observing or performing any of the covenants, conditions or stipulations hereinbefore contained and on the part of the Lessee to be paid, observed and performed or if the Lessee's firm is dissolved except for reconstruction or if any of the partners of the Lessee is adjudicated insolvent then and in any such cases it shall be lawful for the Lessor immediately or at any time or times thereafter upon the demised Tea Estates and premises or any part thereof in the name of the whole to re-enter and thereupon this demise shall absolutely determine but without prejudice to the rights of the Lessor to damages or compensation in\" respect of any breach of Lessee covenants herein contained and all other rights and remedies including the right to recover the balance of the instalment unpaid premium or.rent payable in that particular year.\"\n\nThe argument is that in the case of default contemplated in this clause it shall be lawful for the lessor to re-enter and in that event H in terms of cl. 8 he will be entitled only to recover the balance of the instalment of unpaid premium and not the entire balance of the premium. This construction, though it appears to be plausible at first sight,. really ignores the main terms of the lease. The default clause is pressed into service to destroy the main term of the lease. Under cl. I of the lease deed the sum of Rs. 2,25,000/- ill the consideration by way of premium to be paid by the lessee to the lessor. Under cl. 4 thereof the said entire premium has to be\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n(1965) 3 8.C.R.\n\npaid in instalments; under cl. 8 the lessor has the option to termi- A nate the lease and re-enter the premises in the circumstances mentioned therein without prejudice to all his rights under the document. One of his rights is to recover the premium in instalments.\n\nThe fact that one of the rights saved is his right to recover the balance of the instalment of unpaid premium cannot possibly deprive him of all his .other rights which are also expressly saved B thereunder. The drafting of the clause is not artistic and is rather confused; but in the context of the other clauses it cannot be so construed as to override, or come into conflict with, the main terms '' of the lease deed.\n\nThirdly, it was contended that the income the lessor was C getting under the lease after 1950, i.e., after the execution of the lease deed; viz., the total of the instalments of premium and rent, was not higher than the profits he was getting before the lease and that was an indication that what was rent really was split up into premium and rent for ulterior purposes. This argument is based upon the following data collected from the published accounts of D the assessec-company:\n\n-·------\n\nYear ended Profit Depreci&· Net Divided ti on Profit (tax free) (1) (2) (3) (4) (5) B --·--~--~---\n\n- ------··--- ----·------- -\n\nRe.\n\nRe.\n\nRs. %\n\n3111 M•rch 194 7 60,186 8,665 51,521 9\n\n1111 M&roh 1948 33,118 7,872 ~3,246 9 lb\\ 11.rch 1949 31,581 7,475 24,106 6 llat r arch 1950 41,734 17,868 29,866 12 F\n\n1!11 March 1951 71,888 17,726 54,162 6\n\n1111 March 1952 33,213 15,527 17,686 6\n\nIla\\ 11.rch 1953 69,550 15,410\n\n54,14Q 6\n\nIn the accounts of the year to 31st March 1952 there are the 0 tallowing three items of expenditure: -\n\nTransit charges Legal Expenses Gratuity to Managing Director ...\n\nRs. 10,605\n\n7,518 10,000\n\n28,123\n\nBefore comparing the figures given for the two periods, i.e., the period before M(lrch 1950 and the periou thereafter. it is necessary to add back the said three items of expenditure totalling\n\nA Rs. 28,123/- to the net profit of the year ended with 31st March, 1952; if they were added, instead of Rs. 17,686 /-, the profit would be Rs. 45,809 /-. A comparative study of the said figures discloses a higher return in the second period than during the earlier period.\n\nBut an attempt is made to show that the figures of the later period include other items and if they are deducted the net profit would be B comparable with that in the earlier period, but there is no agreed data for this attempt and it is not possible on the material placed before us tc scrutinize the figures. In the absence of the relevant material it is not possible to accept the argument built upon the said figures.\n\nEl The result is that there is no material placed before us, either direct or circumstantial, to displace the description given in the lease deed to the said amounts as premium and to hold that they are not in fact premium but only rent. Indeed, the circumstances mentioned supra confirm the said description.\n\nD In the result we hold that the High Court has given a correct answer to the question submitted to it by the Income-tax Appellate Tribunal. The appeal is dismissed with costs.\n\nAppeal dismissed.", "total_entities": 28, "entities": [{"text": "COMMISSIONER OF INCOME-TAX, ASSAM ETC", "label": "PETITIONER", "start_char": 0, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, ASSAM ETC", "offset_not_found": false}}, {"text": "THE PANBARI TEA CO. LTD", "label": "RESPONDENT", "start_char": 40, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "THE PANBARI TEA CO. LTD", "offset_not_found": false}}, {"text": "April 19, 1965", "label": "DATE", "start_char": 66, "end_char": 80, "source": "ner", "metadata": {"in_sentence": "April 19, 1965\n\n[K. SUBBA RAO, J. C. SHAH AND S. M. SIKRI, JJ.J\n\nIndian Income-tax Act (11 of 1922)-\"Premium\" and \"rent\"- Distinction-Premium paid in instalments-Whether caPitai gains or revenue receipts."}}, {"text": "K. SUBBA RAO, J.", "label": "JUDGE", "start_char": 83, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 100, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. M. SIKRI, JJ", "label": "JUDGE", "start_char": 112, "end_char": 127, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Indian Income-tax Act", "label": "STATUTE", "start_char": 131, "end_char": 152, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Assam High Court", "label": "COURT", "start_char": 3594, "end_char": 3610, "source": "ner", "metadata": {"in_sentence": "Appeal frbm the judgment and order dated March 22, .1960, of the Assam High Court in Income-tax Reference No."}}, {"text": "C N. D. Karkhanis", "label": "LAWYER", "start_char": 3651, "end_char": 3668, "source": "ner", "metadata": {"in_sentence": "C N. D. Karkhanis and R. N. Sachthey, for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3673, "end_char": 3687, "source": "ner", "metadata": {"in_sentence": "C N. D. Karkhanis and R. N. Sachthey, for the appellant."}}, {"text": "Sampat Ayyangar", "label": "LAWYER", "start_char": 3708, "end_char": 3723, "source": "ner", "metadata": {"in_sentence": "Sampat Ayyangar and J. P. Goyal, for the respondent."}}, {"text": "J. P. Goyal", "label": "LAWYER", "start_char": 3728, "end_char": 3739, "source": "ner", "metadata": {"in_sentence": "Sampat Ayyangar and J. P. Goyal, for the respondent."}}, {"text": "Sobba Rao", "label": "JUDGE", "start_char": 3807, "end_char": 3816, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Cou.rt was delivered by\n\nSobba Rao, J.\n\nBy a registered lease deed dated March 31, 1950, the assessee-company, respondent herein, leased out two tea D estates named \"Panbari Tea Estate'' and \"Barchola Tea Estate\", aloug with machinery and buildings owned and held by it, in Darrang, in the State of Assam, to a firm named Messrs. Hiralal Ramdas for a period of ten years commencing from January l, 1950.", "canonical_name": "Sobba Rao"}}, {"text": "Darrang", "label": "GPE", "start_char": 4056, "end_char": 4063, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Cou.rt was delivered by\n\nSobba Rao, J.\n\nBy a registered lease deed dated March 31, 1950, the assessee-company, respondent herein, leased out two tea D estates named \"Panbari Tea Estate'' and \"Barchola Tea Estate\", aloug with machinery and buildings owned and held by it, in Darrang, in the State of Assam, to a firm named Messrs. Hiralal Ramdas for a period of ten years commencing from January l, 1950."}}, {"text": "Hiralal Ramdas", "label": "OTHER_PERSON", "start_char": 4112, "end_char": 4126, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Cou.rt was delivered by\n\nSobba Rao, J.\n\nBy a registered lease deed dated March 31, 1950, the assessee-company, respondent herein, leased out two tea D estates named \"Panbari Tea Estate'' and \"Barchola Tea Estate\", aloug with machinery and buildings owned and held by it, in Darrang, in the State of Assam, to a firm named Messrs. Hiralal Ramdas for a period of ten years commencing from January l, 1950."}}, {"text": "January 31 and July 31 of each year", "label": "DATE", "start_char": 4579, "end_char": 4614, "source": "ner", "metadata": {"in_sentence": "11,250/- Im or before January 31 and July 31 of each year."}}, {"text": "February 25, 1957", "label": "DATE", "start_char": 4860, "end_char": 4877, "source": "ner", "metadata": {"in_sentence": "On February 25, 1957, for the assessment year 1952-53, the Income-tax Officer made the assessment treating the instalment of Rs."}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 5474, "end_char": 5482, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 5490, "end_char": 5504, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 105", "label": "PROVISION", "start_char": 8775, "end_char": 8781, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 8789, "end_char": 8813, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "March 31, 1950", "label": "DATE", "start_char": 10386, "end_char": 10400, "source": "ner", "metadata": {"in_sentence": "Bearing the said principles in mind let us scrutinize the lease deed dated March 31, 1950."}}, {"text": "cl. 4", "label": "PROVISION", "start_char": 11020, "end_char": 11025, "source": "regex", "metadata": {"statute": null}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 11155, "end_char": 11164, "source": "ner", "metadata": {"in_sentence": "TEA co. (Subba Rao, J.) 816\n\npaid to the lessor and for using the estates the lessee had to pay, an annual rent of Rs.", "canonical_name": "Sobba Rao"}}, {"text": "cl. 8", "label": "PROVISION", "start_char": 12109, "end_char": 12114, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 8", "label": "PROVISION", "start_char": 13523, "end_char": 13528, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 4", "label": "PROVISION", "start_char": 13994, "end_char": 13999, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 8", "label": "PROVISION", "start_char": 14112, "end_char": 14117, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_818_828_EN", "year": 1965, "text": "POONA ELECTRIC SUPPLY CO. LTD. v.\n\nCOMMISSIONER OF INCOME-TAX, BOMBAY\n\nApril 19, 1965 [K. SUBBA RAO, J. C. SHAH AND S. M. Sum, JJ.)\n\nIncome-tax Act (11 of 1922) s. 10(1)-Projit arrived at after deducting amount. according to Electricity (Supply) Act, 1943-Taxoblc inceme--If deductions can be allowed.\n\nThe appellant-company was a commercial undertaking, doing the business of supply of electricity .subject to the provisions of Electricity\n\n(5upply) Act, 1948. For the purpose of rationalization of rates and keeping them under control, the licensee was directed by the Act to adjust the rates in such a way that the clear profit in any year did 1;1ot exceed the amount ot reasonable return as defined in the Act; but that if an excess was collected, the licensee should distribute half of that exces• by way of rebate to the consumers, 9r carry the amount forward in the accounts for distribution to the consumers.\n\nFor the purposes of the-Act, during the accounting years, the asses.- see credited certain amounts which formed part of the excess collected to the \"Consumers Benefit Reserve Account\", and claimed deduction of those amounts from the taxable income. The\" Income Tax Officer and the Appellate Assistant Commissioner disallowed the .claim, but the Tribunal allowed the deductions. The High Court, on a reference, hel\\! against the assessee.\n\nIn its appeal to this Court, the appellant contended inter alia that there was a distinction between commercial profit and \"clear profit\" under the Electricity (Supply) Act and that the real or commercial profit under s. 10(1) of the Income Tax Act, 1922, could be determined only after excluding the amounts statutorily transferred to the \"Consumers Benefit Reserve Account\", for, that amount represented a rebate to the consumers, of the excess amount collected from them.\n\nHELD: As a business concern the real profit of the appellant had to be ascertained on the principles of commercial a.ccountancy. & a licensee governed by the statute its \"clear profit\" was ascertained in terms of the statute and the schedule annexed thereto. The two profits are for different purposes-one for commercial and tax purposes and the other for statutory purposes in order to maintain a reasonable level of rates. The amounts for which deduction was claimed were a part of the excess ainount paid to the assessee and reserved to be returned to the consumers. They did not form part of the assessee's. real profits, and therefore, to arrive at the taxable income of the assessee from the business, under s. 10(1) of the Income-tax Act the said amounts had to be deducted from its total income.\n\n[827G-828A] , The income tax is a tax on the real income, that is, the real profits arrived at on commercial principlessubject to the provisions of the Income-tax Act. The real profit can be ascertained only by mU:- ing the permissible deductions. There is a clear cut distinction betwe_en deductions made for ascertainin!I the profits and distributions made out of profits. It is a question df fact to be found on the relevant circumstances, having regard to business principles. Anoth_.\n\n11'\n\nl'OO:\\A ELECTHIC CO. t'. C.I.T. (Sulba Jlao, J.) 819\n\ndistinction that should, be borne in mind is that between the real and the statutory profits. that is between the commercial profits ond statutory profits. The latter are statutorily fixed for a specified purpose. The real profit of a businessman under s. 10(1) of the Incometax Act cannot obviouslv include the amounts returned by him by \\\\ay of' rebate to the co.nsumers, under statutory compulsion, from the statutory profits. [822C, 827E. F]\n\nCase la\\\\' referred to.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 633 and 634 of 1964.\n\nAppeals from the judgement and order dated July 23 and 24, 1962 of the Bombay High Court in Income-tax R:eference No. 61 of 1961.\n\nA. V. Vfa1m11atha Sastri, S. N. Vakil, T. A. Ramachandran, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the appellant (in both the appeals).\n\nNiren De, Additional Solicitor-General, R. Ganapathy Iyer and R. N. Sachthey, for respondent (in both the appeals).\n\nA. V. Vishwanatha Sastri, M. N. Shroff and /. N. Shroff, for the Intervener <in all the appeals).\n\nThe Judgment of the Court was delivered by\n\nSobba Rao, J. The appellant, the Poona Electric Supply Co., Ltd., hereinafter called the Company, carried on the business of distribution of electricity in the city of Poona under a licence issued by the Government.. Under the relevant provisions of the Electricity (Supply) Act, 1948, (Act 54 of 1948), hereinafter called the Act, the Company's \"clear profit\" in any year should not, as far as possible, exceed the amount of \"reasonable return\" as defined under the Act. The excess, if any, after making some deductions, the Company has to distribute to its consumers in the form of rebate. During the assessment years 1953-54 and 1954--55 the Company claimed deduction of two amounts of Rs. 42,148/- and Rs. 77, 138 /- for the said two years from its taxable income as they were credited to \"Consumers Benefit Reserve Account\". The Income-tax Officer disallowed the claim; and on appeal the Appellate Assistant Commissioner agreed with the Income-tax Officer.\n\nOn a further appeal, the Incometax Appellate Tribunal accepted the contention of the appellant and allowed the deductions. At the instance of the Revenue, the Tribunal submitted the following question of law to the High Court of Judicature at Bombay for its opinion:\n\n\"Whether the two sums of Rs. 42, 148 /- in the assessment year 1953-54 and Rs. 77,138/- in the assessment year 1954-55 were deductible in computing income, profits and gains from the assessee's business assessable to tax.n\n\nSUPREME\n\nCOURT\n\nREPORTS [1965] 3 s.c.&.\n\nA Division Bench of the. said High Court answered the question A in the negative and against the appellant. The present appeals have been filed by the Company after obtaining the requisite certificate from the High Court.\n\nThe argument of Mr. A. V. Viswanatha Sastri, learned counsel for the appellant, may be summarised thus: (!) There is, a B distinction. between commercial profit of a company and \"clear profit\" under the Act-one is arrived .at on commercial principles and the other is regulated by the statute; the real profit of a company under s. 10(1) of the Indian Income-tax Act can be determined only after excluding the amount statutorily transferred to the \"Consumers Benefit Reserve Account\", for that amount C represents a rebate to the customers of-the excess amount collected from them.\n\n(2) As the reservation of a part of the said excess is a statutory condition subject to which the Company carries on its business, it is an expenditure wholly and exclusively incurred for the purpose of the Company's business and, therefore, it is an allowance deductible under s. 10(2)(xv) of the Income-tax Act for D computing the profit of the Appellant's business. (3) The Company follows the mercantile system of accounting and, therefore, the amount of rebate so reserved is deductible for arriving at the commercial profit of the Company in the year when the statutory liability arises and not when the amount is actually paid; and in the present case the statutory liability for the said two amounts E arose in the accounting years of 1952 and 1953.\n\nLearned Additional Solicitor General contended that (1) under the relevant provisions of the Act the transference of a part of the said excess to the consumers benefit reserve account would only amount to apportionment or distribution of the profit after it has F been earned and, therefore, it is not a deductible item for ascertaining the profit of the Company under s. IO(l) of the Income-tax Act; (2) the said amol!nts could not be said to be an expenditure wholly and exclusively incurred for the purpose of the business, as the expenditure was not incurred either during the course of the business or for the purpose of earning the profits of the business, G but was only apportioned or distributed from and out of the profits already earned.\n\nTo appreciate the rival conientions and to arrive at a satiafactory solution it will be necessary to notice the relevant provisions of the Act and of the Income-tax Act.\n\nThe gist of the relevant pro.visions may be stated thus: No person can supply electric energy m any area unless he has obtained a licence from the State Gov'ernment under s. 3(1) of the Indian Electricity Act, 1910 (9 of 1910). The Act, i.e., The Electricity (Supply) Act, 1948, provides for the rationalization of ile production and supply of electricity and generally for taking\n\nPOONA ELEC'rRIC co. v C.I.T. {Bubb~ Rao, J.) 8~1\n\nmeasures conducive to electrical development. One of its main objects is to prevent such licensees from charging unreasonablerates to the detriment of the consumers. Under s. 57(1) of the Act the provisions of the Sixth Schedule and the table appended. to the Seventh Schedule thereto are deemed to be incorporated in the licence of every licensee. Paragraph I of the Sixth Schedule imposes a duty on every such licensee to so adjust his rates for the sale of electricity by periodical revision that his clear profit in any year shall not, as far as possible, exceed the amount of \"reasonable return\".\n\nThe expressions \"clear profit\" and \"reasonable return\" are defined. Under Para. II thereof if the clear profit of a licensee in any year of account is in excess of the amount of reasonable return, one-third of such excess, not exceeding 7! % of the amount of reasonable return, shall be at the disposal of the undertaking; one half of the said excess shall either be distributed in the form of a proportional rebate on the amounts collected from the sale of electricity and meter rentals or carried forward in the accounts of the licensee for distribution to the consumers in future in such manner as the State Government may direct. It is, therefore, clear from these provisions that for the purpose of rationalization of rates and keeping them under control the licensee is directed to adjust his rates in such a way that his clear profit in any year. shall not, as far as possible, exceed the amount of reasonable profit; but if an excess is collected, the licensee shall E distribute half of that excess in the form of a proportional rebate to the consumers or carry forward the same in his accounts for future distribution to the consumers.\n\nBriefly stated, the schemeof the provisions is that a part of . the excess collected is returned to the consumers by way of a rebate. The question is whether\n\nF the amount so returned or retur.nable by the licensee to his consumers is deductible for ascertaining his taxable income from his business under s. 10(1) or s. 10(2)(xv) of the Income-tax Act.\n\nLearned Additional Solicitor General took us though the various paragraphs of the Sixth Schedule to the Act and argued that under them the licensee's clear profit was arrived at after alf the G deductions were made, including the appropriations for all taxes on income and profits and, therefore, the distribution of a part of the excess was only a distribution out of the profits. There is plausibility in this argument and at tht' first blushit appears to be attractive. But there is an obvious fallacy underlying the argument and that arises from the fact that the argument equates the expres- H sion \"clear profit\" with that of commercial profits. The object of the Act and that of the Sixth Schedule thereto, as aforesaid, is to statutorily rationalize and regulate the rates chargeable for the energy supplied in the interest of the public and for electrical development. The rules embodied in the Sixth Schedule to the Aot are intended only to achieve that object. Under the said rules certain appropriations and certain deductions have to be made to arrive at the clear profit; otherwise the items may be manipulated\n\n822 SUl'REl!E COURT REPORTi (1965] 3 s.C.R.\n\nto susiain a demand for abnormal rates. The rules have no con- A cern with income-tax; though for the purpose of arriving at the clear profit the taxes paid are also deductible. If this distinction is borne in mind, the problem presented is easily and readily solved.\n\nUnder s. lO(i) of the Income-tax Act, tax shall be payable by B an assessee under the head \"profits and gains of business\" in respect of profits and gains of any business carried on by him. The said profits and gains are not profits regulated by any statute, but profits in a business computed on business principles. They are business profits and not statutory profits. They are real profits and not notional profits. The real profit of a businessman under c s. 10(1) of the Income-tax Act cannot obviously include the amounts returned by him by way of rebate to the consumers under statutory compulsion. It is as if he received only from the consumers the original amount minus the amount he returned to them. In substance there. cannot be any difference between a businessman collecting from his constituents a sum of Rs. Y in D addition to Rs. X by mistake and returning Rs. Y to them and another businessman collecting Rs. X alone. The amount returned is not a part of the profits at all.\n\nIn this context some of the decisions cited. at the Bar may be of some help.\n\nIn Pondicherry Railway Co., Ltd. v. Commissioner of Income-tax, Madras('). under an agreement with the French E Colonial Government the railway company had to pay to the said Government half of its net profits calculated as provided thereunder. One of the questioni that arose in the appeal was whether the appellant-company was entitled to deduct the payments made under the agreement with the said Government as being expenditure incurred solely for the purpose of earning such profits within F s. 10(9) of the Income-tax Act. In dealing with the question, Lord Macmillan observed:\n\n\"A payment out of profits and conditional on profits being earned cannot accurately be described as a payment made to earn profits. It assumes that profits have first G come into existence. But profits on their coming into existence attract tax at that point, and the revenue is not concerned with the subsequent application qf the profits.\" The learned Lord, after citing with approval the principle laid down by Lord Chancellor Halsbury in Gresham Life Assurance B Society v. Styles('), proceeded to observe:\n\n\"The word 'profits' I think is to be understood in its natural and proper sense ... in a sense which no. ~mercial man would misunderstand. But once an md1V1dual or\n\n(') 119311 L.R. 58 A.C. 239, 251-252, 252,\n\nI') [1892] A.O. 309.\n\n. ·,\n\nFOONA ELECTRIC co. v. C.LT. (Subba Rao, J.) 8~3\n\na company has in that proper sense ascertained what are the profits of his business or his trade, the destination of those profits or the charge which ha~ been made on those profits by previous agreement or otherwise is perfectly immaterial. The tax is payable upon the profits realized, and the meaning to my mind is rendered plain by the words 'payable out of profits.\"\n\nThe distinction between payment out of profits and a payment to earn profits is unexceptionable. The di!Rculty is to ascertain in each case whether a particular payment falls under one or other of the two categories. The statement in the aforesaid observations that a payment conditional on profits being earned cannot be a payment made to earn profits has been modified and explained by the Privy Council in The Indian Radio and Cable Communications Company, Ltd., v. The Commissioner of Income-tax, Bombay Presidency & Aden('). There, their Lordships were dealing with a case of a . joint venture by two companies; and Lord Maugham pointed out thus:\n\n\"It may be admitted that, as Mr.\n\nLatter contended, it is not universally true to say that a payment the making of which is conditional on profits being earned cannot properly be described as an expenditure incurred for E the purpose of earning such profit~. The typical exception is that of a payment to a director or a manager of a commission on the profits of a company.\"\n\nTo that extent the principle laid down by Lord Macmillan in the case of Pondicherry Railway Co.(') has been modified. Lord F Macmillan himself in a later decision in The Union Cold Storage Co. Ltd., v. Adamson (H. M. Inspector of Taxes)(') explained his observations in the Pondicberry Railway Co.'s case('). There, the appellant-company leased lands and premises abroad under a deed reserving a particular rent per annum. The deed provided\n\nthat if at the end of any financial year it was found that after providing for this rent the result of the Company's operations was insufficient to pay both interest on its charges and debentures and dividends at fixed rates on its preference shares and also al least\n\n10 per cent, on its ordinary shares, the rent for the year was to be abated to the extent of the deficiency, repayment of rent already paid being made if necessary.\n\nThe question raised in that case was whether such repayments made were ailowable as deduction.\n\nin assessing the Company's income to income-tax. The House of Lords held that they were allowable deductions.\n\nWhen the observations of Lord Macmillan in the Pondicherry Railway Co.'s case(') were pressed upon the House in support of the contention\n\n(') (1937) 5 I.T.R. 270, 277.\n\n(') (1931) 16 A.C. 328, 331.\n\n(') L.R. 58 A.C. c39.\n\n8!14\n\nSUPRBMB\n\nCOURT\n\nREPORTS\n\n.[1965] 3 B.C.R.\n\non behalf of the Revenue, Lord Macmillan explained his earlier A observations thus: , \"When, therefore, in the passage referred to by the Attorney- General in the Pondicherry case I said that \"a payment out of profits and conditional on profits. being earned cannot accurately be described as a payment B made to earn profits\", I was dealing with a case' in which the obligation was, first of all, to ascertain the profits in a prescribed manner, after providing for all f outlays incurred in earning them, and then to divide them. Here the question is whether or not a deduction for rent has to be made in ascertaining the profits, and the question is not one of the distribution of profits at O all.\" ·-\n\nThough a contractual term of payment of rent operated after the profits were ascertained and on the insufficiency to meet certain obligations was discovered, the House of Lords did not find any difficulty in holding that the deductions for rent were made only D for ascertaining the profits and not for distributing the same. The decision of the Court of Appeal in British Sugar Manufacturers, Ltd. v. Harris (Inspector of Taxes(') is rather instructive. There, a company carrying on a manufacturing business agreed with two other companies to pay them a stated percentage of its \"net profits\" in consideration of their giving to the company the full benefit of E their technical and financial knowledge and experience, and giving to the company and its directors advice to the best of their ability.\n\nThe question arose whether in computing the profits of the company for the purpose of income-tax, the company was entitled to deduct the sums so paid as being money wholly and exclusively laid out or expended for the purposes of the trade within Rule 3(a) F of Cases I and II. Greene, M. R., pithily observed thus:\n\n\"Once you realise that as a matter of construction the word\n\n\"profits\" may be used in one sense for one purpOie and in another sense for another purpose, I think you have the real solution of the difficulties that have arisen G in this case.\" Applying that test, the Master of the Rolls held. that:\n\n\"In the present case there are two funds of so-called profit§\n\nwhich come into the picture. The first one is the fund which has to be ascertained for the purposes of calcu- H lating the 20 per cent. ..................... Now when that amount has been ascertained, that fund has ceased to have any usefulness at all, and it then becomes necessary to ascertain what are the divisible profits, a::id for that purpose, to take another account, which not only would bring in depreciation, but would also take into\n\n(1) [1939] 7 I.T.R. IOI, 105, 106, 108-109. . '\n\nPOONA ELECTRIC co. v. C.I.T. (Subba Rao, J.) 8211\n\naccount the sum that had been paid out to the Skoda works, and the Corporation upon the taking of the first account.\"\n\nRomer, L. J., put the test in a different way when he said:\n\n\"Is the payment that has to be made hy the .trader under the contract in question a mere division of profits with another party or is it a payment to the other party, the amount of which is ascertained by reference to the pro fits?\"\n\nMacKinnon, L. J., stated much to the same effect thus:\n\n\"The whole question in this, as in other cases, is whether this, which is an annual payment, is an annual payment to be taken into account in order to ascertain the profits, or is it an annual payment payable out of the profits after they have been ascertained? I think the true facts of this case are that it is of the former character. The difficulty in the case arises largely because of the necessary ambiguity in the word \"profits\" and the fact that in this agreement \"profits\" as a word does appear; but \"profits\", as I think, quite clearly of a different description from the annual profits or gains with which one is concerned in assessing the\n\nincometax.\"\n\nThis decision accepts the principle that a contract or a statute may provide for the ascertainment of two profits for different pm poses and the question to be decided in each case is whether the amount claimed as deduction is payable out of the real profits.\n\nF The Judicial Committee again in Raja Bejoy Singh Dudhuria v.\n\nCommissioner of Income-tax, Calcutta(') emphasized the concept of real income in the context of payment of income-tax.\n\nLord Macmillan, speaking for the Board, after adverting to the Imperial System of inco_me-tax legislation, proceeded to observe:\n\n\"The correlative of the obligation to return as income sums which are really charges upon the taxpayer's income is the right to reimbursement of the tax on such charges. The Indian Income-tax Act makes no similar provision for the deduction of tax at the source and the consequent reimbursement of the taxpayer in the case of such a charge as that to which the revenues of the appellant are subject ............................ , . that the omission from the Indian Act of any such provision points rather to an intention to tax, in Lord Davey's phrase, only \"the real income\" of the taxpayer, than to an intention to impose, without right of reimbursement, a tax on what is a charge upon his income.\"\n\n(') L.R. (1933) 60 I.A. 196, 202.\n\n826 SUPRE14ll: COURT REPORTS [1~£n} 3 s.c.R.\n\nThe concept of \"real income\" is also expounded in the decision A of the Bombay High Court in H. M. Kashiparekh & Co .. Ltd. v.\n\nCommissioner of Income-tax, Bombay North('). There, under the managing agency agreement the managing agent was under a duty to forgo up to one-third of its commission where the profits of the managed company were not sufficient to pay a dividend of\n\n6 per cent. The contention of the Revenue that such a surrender Bof the commission under the provisions mentioned in the agreement was not deductible for the purpose of income-tax was negatived. The principle has been succinctly stated in the headnote thus:\n\n\"The principle of real income is not to be subordinated as c to amount virtually to a negation of it when a surrender or concession or rebate in respect of managing agency commission is made, agreed to or given on grounds of commercial expediency, simply because it takes place some time after the close of an accounting year. In examining any transaction and situation of D ( this nature the court would have more regard to the reality and speciality of the situation rather than the purely theoretical or doctrinaire aspect of it. It will lay greater emphasis on the business aspect of the matter viewed as a whole when that can be done without disregarding statutory language.\" E\n\nNow let us look at two of the cases on which strong reliance is placed on behalf of the Revenue. In Mersey Docks and Harbour Board v. Lucas(') the harbour board was empowered by Act of Parliament to levy dock dues to be applied in maintaining the concern and in paying interest on moneys borrowed; any surplus F income remaining after meeting these charges was directed to be applied in forming a sinking fund to extinguish the debt incurred in the construction of the docks. It went to reduce the capital liability. The question was whether the sum carried to the sinkini: fund, and the surplus carried to the following year's accounts, were \"profits\" within the meaning of the Income-tax Acts. The House of Lords held that the surplus was profit assessable to the income- G tax. In this case the surplus income formed the sinking , fund and was utilised to pay off the debts of the harbour board; therefore, the Court rightly held that the said amount was utilised by the ]Joard from and out of its profits and, therefore, the said surplus could not be an allowable deduction. The decision of the Queen's 11 Bench Division in Paddington Burial Board v. Commissioners of Inland Revenue(') was also based on the same principle. Under a public Act of Parliament a burial ground was provided out of the poor rates, and fees were charged to persons using it; any\n\n(') (!D~O) 39 I.T.R. 706, 707.\n\n(') (1883) 2 T.C. 25.\n\n(') (18841 2 T.C. 46.\n\n...\n\n, i I\n\nPOONA ELECTRIC ce. 1'. C.I.T. (8ubba Rao, J.) 827\n\nA surplus of income over expenditure was applied in aid of the poor rates as required by the Act. It was held that the surplus was a profit assessable to income-tax. It will be seen that the burial ground was managed on behalf of the Parish of Pa.ddington and the surplus was applied for the benefit of the parishners.\n\nIn the words of Day, J., it was a business carried on for the benefit of :B the rate-payers of the parish of Paddington. This case also, therefore, dealt with payments out of profits utilised for the benefit of those on whose behalf the business was conducted. In Young (H. M. Inspector of Taxes) v. Racecourse Bi(fing Control Board(') the question that arose was whether the Racecourse Betting Control Board was entitled in computing the profits of the trade of totalisa- C tor operator for the years 1953-54 and 1954-55 to deduct certain payments. The Board would be entitled, under the appropriate statutes, to deduct payment of moneys wholly and exclusively laid out or expended for the purpose of trade. It was held in that case that the said payments were a!l voluntary payments and were not made for the purpose of the trade.\n\nThis decision has no bearing D on the question raised before us.\n\nThe saio decisions lead to the following results: Income-tax is a tax on the real income, i.e., the profits arrived at on commercial principles subject to the provisions of the Income-tax Act. The real profits can be ascertained only by making the permissible E deductions.\n\nThere is a clear-cut distinction between deductions made for ascertaining the profits and distributions made out of profits.\n\nIn a given case whether the outgoings fall in one or the other of the heads is a question of fact to be found on the relevant circumstances, having regard to business principles. Another distinction that shall be borne in mind is that between the real and r the statutory profits. i.e., between the commercial profits and statutory profits. The latter are statutorily fixed for a specified purpose. [f we bear in mind these two principles there will be no difficulty in answering the question raised.\n\nThe appe!lant-company is a commercial undertaking. It does business of the supply of electricity subject to the provisions of the Act.\n\nAs a business concern its real profit has to be ascertained on the principles of commercial accountancy. As a licensee governed by the statute its clear profit is ascertained in terms of the statute and the schedule annexed thereto.\n\nThe two profits are for different purposes-one is for commercial and tax purposes\n\nand the other is for statutory purposes in order to maintain a reasonable level of rates. For the purposes of the Act, during the accounting years the assessee credited the said amounts to the \"Consumers Benefit Reserve Account\". They were pa\\j of the excess amount paid to it and reserved to be returned to the consumers.\n\nThey did not form part of the asessee's real pr9fits.\n\nSo, to arrive at the taxable income of the assessee from the business\n\n(') (1959) 38 T.C. 452 (H.L.).\n\nLP(D)5SCf-14\n\n82ti 'sUPRI<:ME\n\nCOUUT Rl'Olfl'S [ IUGu J 3 8.U.1<\n\nunder s. 10(1) of the Act, the said amounts have to be deducted A from its total income. \"\n\nIn this view it is not necessary to express our opinion on the question whether the said amounts would be allowable deductions under s. 10(2)(xv) of the Act.\n\nThe next question is whether the amounts so reserved for B future payment were deductible in computing the income, profits or gains from the assessee's business for the assessment years 1953-54 and 1954-55. It is not disputed that the assessee adopts the mercantile system of accounting. The liability to return the amounts was incurred by the assessee during the relevant accounting years. This C'..ourt held in Calcutta Co. Ltd., v. Commissioner C of Income-tax, West Bengal(') that where an assessee ml!intained\n\nhis accounts on mercantile basis, the accrued liability and the estimated expenditure which it would incur in discharging the same could be deducted from the income of the accounting year iR which the said liability accrued.\n\nIndeed, this legal position was not contested on behalf of the Revenue.\n\nD In the result we answer the question referred to the High Court in the affirmative and in favour of the assessee. The order of the High Court is set aside. The appeals are allowed with costs.\n\nAppeals allowed.\n\n(1) (1969) 87 LT.B. I,\n\n\" '", "total_entities": 75, "entities": [{"text": "POONA ELECTRIC SUPPLY CO. LTD", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "POONA ELECTRIC SUPPLY CO. LTD", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, BOMBAY", "label": "RESPONDENT", "start_char": 35, "end_char": 69, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, BOMBAY", "offset_not_found": false}}, {"text": "April 19, 1965", "label": "DATE", "start_char": 71, "end_char": 85, "source": "ner", "metadata": {"in_sentence": "v.\n\nCOMMISSIONER OF INCOME-TAX, BOMBAY\n\nApril 19, 1965 [K. SUBBA RAO, J. C. SHAH AND S. M. Sum, JJ.)"}}, {"text": "K. SUBBA RAO, J.", "label": "JUDGE", "start_char": 87, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 104, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 133, "end_char": 147, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 161, "end_char": 169, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 1575, "end_char": 1583, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 1591, "end_char": 1611, "source": "regex", "metadata": {}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 2547, "end_char": 2555, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 2563, "end_char": 2577, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 2790, "end_char": 2804, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sulba Jlao", "label": "JUDGE", "start_char": 3166, "end_char": 3176, "source": "ner", "metadata": {"in_sentence": "C.I.T. (Sulba Jlao, J.) 819\n\ndistinction that should, be borne in mind is that between the real and the statutory profits."}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 3440, "end_char": 3448, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 3801, "end_char": 3818, "source": "ner", "metadata": {"in_sentence": "Appeals from the judgement and order dated July 23 and 24, 1962 of the Bombay High Court in Income-tax R:eference No."}}, {"text": "A. V. Vfa1m11atha Sastri", "label": "PETITIONER", "start_char": 3861, "end_char": 3885, "source": "ner", "metadata": {"in_sentence": "A. V. Vfa1m11atha Sastri, S. N. Vakil, T. A. Ramachandran, J. B. Dadachanji, 0."}}, {"text": "S. N. Vakil", "label": "LAWYER", "start_char": 3887, "end_char": 3898, "source": "ner", "metadata": {"in_sentence": "A. V. Vfa1m11atha Sastri, S. N. Vakil, T. A. Ramachandran, J. B. Dadachanji, 0."}}, {"text": "T. A. Ramachandran", "label": "LAWYER", "start_char": 3900, "end_char": 3918, "source": "ner", "metadata": {"in_sentence": "A. V. Vfa1m11atha Sastri, S. N. Vakil, T. A. Ramachandran, J. B. Dadachanji, 0."}}, {"text": "J. B. Dadachanji", "label": "LAWYER", "start_char": 3920, "end_char": 3936, "source": "ner", "metadata": {"in_sentence": "A. V. Vfa1m11atha Sastri, S. N. Vakil, T. A. Ramachandran, J. B. Dadachanji, 0."}}, {"text": "0. C. Mathur", "label": "LAWYER", "start_char": 3938, "end_char": 3950, "source": "ner", "metadata": {"in_sentence": "A. V. Vfa1m11atha Sastri, S. N. Vakil, T. A. Ramachandran, J. B. Dadachanji, 0."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 3955, "end_char": 3970, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the appellant (in both the appeals)."}}, {"text": "Niren De", "label": "LAWYER", "start_char": 4014, "end_char": 4022, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General, R. Ganapathy Iyer and R. N. Sachthey, for respondent (in both the appeals)."}}, {"text": "R. Ganapathy Iyer", "label": "LAWYER", "start_char": 4054, "end_char": 4071, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General, R. Ganapathy Iyer and R. N. Sachthey, for respondent (in both the appeals)."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4076, "end_char": 4090, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General, R. Ganapathy Iyer and R. N. Sachthey, for respondent (in both the appeals)."}}, {"text": "A. V. Vishwanatha Sastri", "label": "LAWYER", "start_char": 4131, "end_char": 4155, "source": "ner", "metadata": {"in_sentence": "A. V. Vishwanatha Sastri, M. N. Shroff and /. N. Shroff, for the Intervener <in all the appeals).", "canonical_name": "A. V. Vishwanatha Sastri"}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 4157, "end_char": 4169, "source": "ner", "metadata": {"in_sentence": "A. V. Vishwanatha Sastri, M. N. Shroff and /. N. Shroff, for the Intervener <in all the appeals)."}}, {"text": "Sobba Rao", "label": "JUDGE", "start_char": 4274, "end_char": 4283, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSobba Rao, J. The appellant, the Poona Electric Supply Co., Ltd., hereinafter called the Company, carried on the business of distribution of electricity in the city of Poona under a licence issued by the Government.. Under the relevant provisions of the Electricity (Supply) Act, 1948, (Act 54 of 1948), hereinafter called the Act, the Company's \"clear profit\" in any year should not, as far as possible, exceed the amount of \"reasonable return\" as defined under the Act."}}, {"text": "Poona Electric Supply Co., Ltd.", "label": "ORG", "start_char": 4307, "end_char": 4338, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSobba Rao, J. The appellant, the Poona Electric Supply Co., Ltd., hereinafter called the Company, carried on the business of distribution of electricity in the city of Poona under a licence issued by the Government.. Under the relevant provisions of the Electricity (Supply) Act, 1948, (Act 54 of 1948), hereinafter called the Act, the Company's \"clear profit\" in any year should not, as far as possible, exceed the amount of \"reasonable return\" as defined under the Act."}}, {"text": "High Court of Judicature at Bombay", "label": "COURT", "start_char": 5452, "end_char": 5486, "source": "ner", "metadata": {"in_sentence": "At the instance of the Revenue, the Tribunal submitted the following question of law to the High Court of Judicature at Bombay for its opinion:\n\n\"Whether the two sums of Rs."}}, {"text": "A. V. Viswanatha Sastri", "label": "LAWYER", "start_char": 6013, "end_char": 6036, "source": "ner", "metadata": {"in_sentence": "The argument of Mr. A. V. Viswanatha Sastri, learned counsel for the appellant, may be summarised thus: (!)", "canonical_name": "A. V. Vishwanatha Sastri"}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 6322, "end_char": 6330, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 6345, "end_char": 6359, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10(2)(xv)", "label": "PROVISION", "start_char": 6854, "end_char": 6866, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 6874, "end_char": 6888, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7720, "end_char": 7734, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 8239, "end_char": 8253, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3(1)", "label": "PROVISION", "start_char": 8427, "end_char": 8434, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 8442, "end_char": 8470, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 57(1)", "label": "PROVISION", "start_char": 8860, "end_char": 8868, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 8902, "end_char": 8916, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 8948, "end_char": 8964, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 9056, "end_char": 9070, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 10744, "end_char": 10752, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)(xv)", "label": "PROVISION", "start_char": 10756, "end_char": 10768, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 10776, "end_char": 10790, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 11483, "end_char": 11497, "source": "regex", "metadata": {"linked_statute_text": "Learned Additional Solicitor General took us though the various paragraphs of the Sixth Schedule to the Act", "statute": "Learned Additional Solicitor General took us though the various paragraphs of the Sixth Schedule to the Act"}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 11697, "end_char": 11711, "source": "regex", "metadata": {"linked_statute_text": "Learned Additional Solicitor General took us though the various paragraphs of the Sixth Schedule to the Act", "statute": "Learned Additional Solicitor General took us though the various paragraphs of the Sixth Schedule to the Act"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 12255, "end_char": 12269, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 12693, "end_char": 12701, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 12709, "end_char": 12723, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10(9)", "label": "PROVISION", "start_char": 13803, "end_char": 13811, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 13819, "end_char": 13833, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Macmillan", "label": "LAWYER", "start_char": 13870, "end_char": 13879, "source": "ner", "metadata": {"in_sentence": "In dealing with the question, Lord Macmillan observed:\n\n\"A payment out of profits and conditional on profits being earned cannot accurately be described as a payment made to earn profits.", "canonical_name": "F Macmillan"}}, {"text": "Halsbury", "label": "OTHER_PERSON", "start_char": 14321, "end_char": 14329, "source": "ner", "metadata": {"in_sentence": "The learned Lord, after citing with approval the principle laid down by Lord Chancellor Halsbury in Gresham Life Assurance B Society v. Styles('), proceeded to observe:\n\n\"The word 'profits' I think is to be understood in its natural and proper sense ... in a sense which no."}}, {"text": "Maugham", "label": "OTHER_PERSON", "start_char": 15688, "end_char": 15695, "source": "ner", "metadata": {"in_sentence": "joint venture by two companies; and Lord Maugham pointed out thus:\n\n\"It may be admitted that, as Mr.\n\nLatter contended, it is not universally true to say that a payment the making of which is conditional on profits being earned cannot properly be described as an expenditure incurred for E the purpose of earning such profit~. The typical exception is that of a payment to a director or a manager of a commission on the profits of a company.\""}}, {"text": "Latter", "label": "OTHER_PERSON", "start_char": 15749, "end_char": 15755, "source": "ner", "metadata": {"in_sentence": "joint venture by two companies; and Lord Maugham pointed out thus:\n\n\"It may be admitted that, as Mr.\n\nLatter contended, it is not universally true to say that a payment the making of which is conditional on profits being earned cannot properly be described as an expenditure incurred for E the purpose of earning such profit~. The typical exception is that of a payment to a director or a manager of a commission on the profits of a company.\""}}, {"text": "Pondicherry Railway Co.", "label": "ORG", "start_char": 16163, "end_char": 16186, "source": "ner", "metadata": {"in_sentence": "To that extent the principle laid down by Lord Macmillan in the case of Pondicherry Railway Co.(') has been modified."}}, {"text": "F Macmillan", "label": "LAWYER", "start_char": 16214, "end_char": 16225, "source": "ner", "metadata": {"in_sentence": "Lord F Macmillan himself in a later decision in The Union Cold Storage Co. Ltd., v. Adamson (H. M. Inspector of Taxes)(') explained his observations in the Pondicberry Railway Co.'s case(').", "canonical_name": "F Macmillan"}}, {"text": "Pondicberry Railway Co.", "label": "ORG", "start_char": 16365, "end_char": 16388, "source": "ner", "metadata": {"in_sentence": "Lord F Macmillan himself in a later decision in The Union Cold Storage Co. Ltd., v. Adamson (H. M. Inspector of Taxes)(') explained his observations in the Pondicberry Railway Co.'s case(')."}}, {"text": "Macmillan", "label": "LAWYER", "start_char": 17478, "end_char": 17487, "source": "ner", "metadata": {"in_sentence": "8!14\n\nSUPRBMB\n\nCOURT\n\nREPORTS\n\n.[1965] 3 B.C.R.\n\non behalf of the Revenue, Lord Macmillan explained his earlier A observations thus: , \"When, therefore, in the passage referred to by the Attorney- General in the Pondicherry case I said that \"a payment out of profits and conditional on profits.", "canonical_name": "F Macmillan"}}, {"text": "Greene", "label": "JUDGE", "start_char": 19233, "end_char": 19239, "source": "ner", "metadata": {"in_sentence": "Greene, M. R., pithily observed thus:\n\n\"Once you realise that as a matter of construction the word\n\n\"profits\" may be used in one sense for one purpOie and in another sense for another purpose, I think you have the real solution of the difficulties that have arisen G in this case.\""}}, {"text": "Skoda works", "label": "ORG", "start_char": 20228, "end_char": 20239, "source": "ner", "metadata": {"in_sentence": "POONA ELECTRIC co. v. C.I.T. (Subba Rao, J.) 8211\n\naccount the sum that had been paid out to the Skoda works, and the Corporation upon the taking of the first account.\""}}, {"text": "Romer", "label": "JUDGE", "start_char": 20301, "end_char": 20306, "source": "ner", "metadata": {"in_sentence": "Romer, L. J., put the test in a different way when he said:\n\n\"Is the payment that has to be made hy the .trader under the contract in question a mere division of profits with another party or is it a payment to the other party, the amount of which is ascertained by reference to the pro fits?\""}}, {"text": "MacKinnon", "label": "JUDGE", "start_char": 20596, "end_char": 20605, "source": "ner", "metadata": {"in_sentence": "MacKinnon, L. J., stated much to the same effect thus:\n\n\"The whole question in this, as in other cases, is whether this, which is an annual payment, is an annual payment to be taken into account in order to ascertain the profits, or is it an annual payment payable out of the profits after they have been ascertained?"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 22074, "end_char": 22088, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Davey", "label": "OTHER_PERSON", "start_char": 22431, "end_char": 22436, "source": "ner", "metadata": {"in_sentence": "that the omission from the Indian Act of any such provision points rather to an intention to tax, in Lord Davey's phrase, only \"the real income\" of the taxpayer, than to an intention to impose, without right of reimbursement, a tax on what is a charge upon his income.\""}}, {"text": "s 11", "label": "PROVISION", "start_char": 25103, "end_char": 25107, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliament", "label": "ORG", "start_char": 25248, "end_char": 25258, "source": "ner", "metadata": {"in_sentence": "Under a public Act of Parliament a burial ground was provided out of the poor rates, and fees were charged to persons using it; any\n\n(') (!"}}, {"text": "8ubba Rao", "label": "JUDGE", "start_char": 25480, "end_char": 25489, "source": "ner", "metadata": {"in_sentence": "C.I.T. (8ubba Rao, J.) 827\n\nA surplus of income over expenditure was applied in aid of the poor rates as required by the Act."}}, {"text": "Pa.ddington", "label": "GPE", "start_char": 25744, "end_char": 25755, "source": "ner", "metadata": {"in_sentence": "It will be seen that the burial ground was managed on behalf of the Parish of Pa.ddington and the surplus was applied for the benefit of the parishners."}}, {"text": "Paddington", "label": "GPE", "start_char": 25929, "end_char": 25939, "source": "ner", "metadata": {"in_sentence": "In the words of Day, J., it was a business carried on for the benefit of :B the rate-payers of the parish of Paddington."}}, {"text": "Racecourse Betting Control Board", "label": "ORG", "start_char": 26196, "end_char": 26228, "source": "ner", "metadata": {"in_sentence": "In Young (H. M. Inspector of Taxes) v. Racecourse Bi(fing Control Board(') the question that arose was whether the Racecourse Betting Control Board was entitled in computing the profits of the trade of totalisa- C tor operator for the years 1953-54 and 1954-55 to deduct certain payments."}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 26897, "end_char": 26911, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 28630, "end_char": 28638, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)(xv)", "label": "PROVISION", "start_char": 28849, "end_char": 28861, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_829_840_EN", "year": 1965, "text": "• A\n\nc - D\n\n...\n\nSOUTH ASIA INDUSTRIES PRIVATE. LTD. v.\n\nS. SARUP SINGH AND OTHERS\n\nApril 19, 1965\n\n[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]\n\nDelhi Rent Control Act (Act 59 of 1958), s. 14(1), Pr.oviso (b)~ Scope of.\n\nThe respondents were the owners of certain premises in New Delhi. The lessee-a company-of these premises ass1gne.d the leas.e to the appellant. Alleging that the transfer was done without their consent, the respondents filed an application against .the lessee and the appellant under s. 14(1) proviso (b) of the Delhi Rent Control Act, 1958, for recovery of possession. Pending the proceedings, the\n\nlessee went into liquidation and its name was struck off from the record. The Controller thereafter, passed an order in favour of. the respondents. Having moved unsuccessfnlly the Rent Control Tribunal and the High Court, the appellant, appealed to the Supreme Court contending that: (i) the order made against the appellant, after the lessee ceased to be a party, was incompetent, as the only person against whom an order for recovery of possession can be made under the clause, is the tenant who assigned the tenancy, and\n\n(ii) the clause in the lease by which the term \"lessee\" included the lessee's assignee operated as a consent by the respondents, to assign.\n\nHELD: (i) (Per Sarkar, J.). The Act contemplates orders for recovery of possession also against persons Other than a tenant who has assigned or sub-let without the landlord's consent, so that, where the tenant becomes extinct without leaving any successor, an order can be made against a person who took an assignment of the lease from the tenant before the lease became extinct. [833C, D-E] The proviso expressly states when an order of ejectment can be made and the clauses of the proviso are not intended to indicate the persons against w.hom an order for recovery of possession could be made, but only the circumstances in which an order for recovery of possession may be made. [832E-G] The expression \"the tenant 11 in cl. (b) is used only to emphasise that the tenant assigning must be the tenant of the landord seeking eviction. So read, the effect of the clause is that a land-lord can recover possession if his tenant assi_gns or sub-lets without his consent [832H, 833A-Bl .\n\nSince the object of the proviso is to enable the landlord to recover possession in the specified cases, orders against all \"persons in\n\noc.cupation\" must have been contemplat.ed so that the landlord might without further tTouble recover posses1on. Sction 18 plainly implies that an order for recovery of possession against a sub-tenant is contemplated by the proviso. Further, the order for recovery of possession would, under s. 25, be binding on the assignee or sub-tenant and therf?re, they \\Vould be interested in showing that there was' the requ1s1te coi:isent, and hence \\Voulct be entitled to be m\"ade parties to the proceedmgs. If they are thus entitled to be heard to oppose the order of ev1ct1on, such an order could be made ar:rainst them a1.:::o\n\n[833F-G, H; 834C, E, H-835A]\n\n- • 829\n\nSUPH.EME COURT REPORTS\n\n(1965) 3 S.C.R.\n\nPer Bachawat J.(i): Both the tenant and the assignee were pro- A perly parties to the proceedings for possession and if the tenant comf pany had been dissolved, there is no reason why the proceedings could not continue against the assignee alone. f839G] It is true that other clauses of the proviso contemplate eviction of the tenant on the ground of some act on the part of the tenant against whom the proceeding for possession is brought, but under cl. (b), the assignment is a ground of eviction of both the assigning tenant and the assignee and the Controller has jurisdiction to make an order for possession not only against the assigning tenant but also against the assignee. [839H-840B]\n\nPer Mudholkar J. (Dissenting)\n\nThe right which the respondents possessed to evict the defunct company from the premises, because the company had assigned the tenancy to the appellant without the respondents' consent could not be availed< of by them, and the appellant could therefore continue in possession. [838B-C]\n\nThe ban against eviction of a tenant in s. 14(1) is lifted by the proviso only with respect to the tenant and not to any other person, because, a proviso is subservient to the main provision. Therefore, the D tenant must be a party to the proceeding right up to the date of making of the order of eviction. Unless an order is obtained against the tenant there would be no occasion for pressing in aid s. 25. Unlike\n\nthe case of death of or assignment by, a tenant, an anomalous position results wi)ere the tenant happening to be a company is dissolved during the pendency of proeeedings and cannot be represented by any one, because of a lacuna in the law. But such lacuna cannot be E removed bx_ the Courts without assuming a power to legislate.\n\n[836H, 837F-H] ·\n\n(ii) Per Sarkar J.: The clause in the lease according to which \"the lessee\" includes his assignee, does not lead to the conclusion tbat he lessor consented to the assignment. Besides, the consent contemplated by the proviso is a direct consent to a contemplated assignment to a particular assignee. [835F-G] F Regional Properties Ltd. v. Frankenchwerth, [1951] 1 All E. R. 178, applied.\n\nPer Bachawat J: The consent contemplated by cl. (b) may be either general or special, but the clause in the lease would not amount to a con8ent by the landlord to an assignment either expressly or by necessary implication. [840D-E]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 149 of 1965.\n\nAppeal by special leave from the judgment and order dated May 10, 1963 of the Punjab High Court (Circuit Bench) in S.A.0.\n\nNo. 40-D of 1963.\n\nC. B. Agarwala, B. R. L. Iyengar, P. N. Chaddha, S. K.\n\nMehta and K. L. Mehta, for the appellant.\n\nS. T. Desai and Gopal Singh for Harbans Singh, for respondents Nos. I & 2.\n\nGurcharan Singh and Gopal Singh for Harbans Singh, for respondents Nos. 3 to 5.\n\ns. ASJA INlHJS'l'lUl'~S i'. S1\\H.FP (Sarkar, J.) 831\n\n• A Sarkar and Bachawat, JJ. delivered separate but concurring judgments. Mudholkar, J. delivered a dissenting Opinion.\n\nSarkar, J. The respondents are the owners of certain premises in Connaught Circus in New Delhi, which were let out to Allen Berry & Co. <Calcutta) Ltd. Sometime in 1959 Allen Berry & Co.\n\nB transferred the lease to the appellant and put the latter in possession.\n\nAlleging that the transfer had been made without their consent, the respondents made an application under cl. (b) of the proviso to sub-s. (1) of s. 14 of the Delhi Rent Control Act, 1958 to the Controller appointed under it against Allen Berry & Co. and the apellant for an order for recovery of possession of the pre- C mises from them. While the application was pending, Allen Berry & Co. went into liquidation and was in due course dissolved and its name was, thereupon, struck off from the records of the proceedings. The Controller later heard the application and made an order in favour of the respondents for recovery of possession of the premises from the appellant alone. An appeal by the appellant D to the Rent Control Tribunal under the Act against this order was\n\nG ..\n\ndismissed.\n\nThe appellant then moved the High Court of Punjab for setting aside the order of the Tribunal, but there also it was unsuccessful. It has now come to this Court in further appeal.\n\nIt was contended that the order for reovery of possession made against the appellant after Allen Berry & Co. had ceased to be a party to the proceedings, was incompetent. This contention was based on an interpretation of the terms of sub-s. (J) of s. 14, the material part of whici) is set out below:\n\nS. 14\n\n(1) Notwithstanding anything to the contrary contained in any other Jaw or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-\n\n(a)\n\n(b) that the tenant has, on or after the 9th day of June, 1952, sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord;\n\nThe contention of the appelJant was put in this way: The first part of sub-s. (]) ofs. 14 puts a complete ban on recovery of nossess10n fron:i all tenants .. The pr<;>viso to it is only an excepting clause and 11 hfts that ban m the crrcumstances mentioned in it.\n\nIt follows that the proviso, though it does not expressly mention\n\nSUPJIE}!E\n\nCOURT\n\nRE~ORTS\n\n(1965) 3 S.C.R.\n\ntenants, permits orders for recovery of possession against them A alone.\n\nThe tenant in cl. (b) of the proviso means only the tenant sought to be evicted under the proviso, such tenant having also to be by the express terms of the clause, a tenant who has assigned his ienancy. This follows from the use of the article \"the\" before the word \"tenant\" there.\n\nTherefore the only person against whom an order for recovery of possession can be made under cl. (b) of B the proviso to sub-s. (]) of s. 14 is the tenant who has assigned his tenancy. No such order can, hence, be made against the person to whom the tenancy has been assigned. As the appellant was such a person, no order for eviction could be made against it.\n\nI wish to observe at once that if this contention is correct-which I do no~ think it is-then the order could never be made against C the appellant and the fact that Allen Berry & Co. ceased to be a party to the proceedings made no difference in this regard.\n\nThe argument of the appellant is really. based on the article \"the\" prefixed to the word \"tenant\" in cl. (b) of the proviso. It is paid that the article -clearly indicates that the only person against D whom an dl'der for ejectment can be made under cl. (b) is the tenant who assigns or sub-lets or parts with possession of the tenancy without the landlord's consent.\n\nI am unable to accept this argu- -nent.\n\nThe proviso expressly states that an order for ejectment can be made \"on one or more of the following grounds\" and then sets the grounds out in the different clauses that follow, one of E which is cl. (b) with which we are concerned. The clauses, therefore, set out the circumstances in which the operative part of the proviso is set in motion, that is, the circumstances in which an order for recovery of possession may be made. If this is so, as I think it is, the clauses could not have been intended to indiq1te the person against whom an order for recovery of possession could F be made. This purpose was entirely different.\n\nI am not suggesting that an order for recovery of possession against the assigning tenant cannot be made.\n\nAll that I say is that the clauses do not intend to indicate the persons against whom an order for recovery of possession can be made and so it cannot be argued that the order cannot be made against any other person.\n\nNow the article \"the\" appears to me to have been used to show that the tenant assigning, must be the tenant of the landlord seeking eviction.\n\nSo rea<i, the effect of the proviso in cl. (b) is that a landlord can recover possession if his tenant has assigned, sub-let or transferred possession without his consent. This would B be the natural reading of the provision and would carry out the intention of the . Act. If this is not the correct reading of the provision, the situation would be anomalous.\n\nAs the word \"tenant\" includes by virtue of its definition in s. 2(1), a sub-tenant, it would at least be arguable that cl. (b) authorised a superior landlord to recover possession when the sub-tenant assigned with out his consent.\n\nThat could not possibly have been intended for\n\n8. ASIA INDUSTHIES I'. SAHUP (Sarkar, J.) 833\n\n• .fl. the intermediate tenant would then have lost his tenancy for no fault of his.\n\nTherefore, I think the article \"the\" was used only to emphasize that the tt'nant assigning must be the tenant of thehindlord seeking eviction.\n\nThe article \"the\" does nm, in my opinion, lead inevitably to the conclusion that the only person against whom an order for recovery of possession can be made on the ground B mentioned in cl. (b) is the tenant assigning or sub-letting or parting with possession of his tenancy without the landlord's consent.\n\nI think there are good reasons why it must be held that the Act contemplated orders for recovery of possession also against persons other than a tenant who has assigned or sub-let without C the landlord's consent. The offending tenant must of course go for, as 1 have said, he is the immediate tenant of the landlord desiring to recover possession and if he remains he would be. entitled to possession and the landlord cannot recover possession.\n\nBut this does not mean that the order may not also direct the removal from possession of others along with the immediate tenant\n\n. D when there is one.\n\nThe reason for this view I will presently state.\n\nIf I am right in what I have said, it will follow that in a case like the present where the tenant becomes extinct without leaving any successor on whom the tenancy devolves, an order can be made against a person who took an assignment of the lease from the tenant before it became extinct.\n\nl t is trite saying that the object of interpreting a statute is to ascertain the intention of the legislature enacting it.\n\nWhen I enquire about the intention behind this statute, I find that far from lending any support to the -appellant's contention it tends quite the other way. First, I observe that the object of the first part of sub-s. (!) of s. 14 is to ban all recovery of possession of tenanted premises by a landlord and that of the proviso is to lift that ban in specified cases. The object of the proviso is then to enable the landlord to recover possession in any of the specified cases.\n\nAssume that the present is a case where the landlord became entitled to recover possession under cl. (b) of the proviso; clearly then the statute intended the landlord to recover possession. It would be our duty to give effect to that intention unless the language used made it plainly impossible.\n\nI have earlier said that the language used does not compel the view that the only person against whom an order for recovery of possession can be made is the tenant assigning or sub-letting without the landlord's consent. That being so, orders against all \"persons in occupation\" must have been contemplated so that the landlord might without further trouble recover possession.\n\nFurther I find it impossible to hold that the language used indicates an intention that when a right has accrued to a landlord to recover possession, that right would be taken away from him when the tenant assigning has become extinct without leaving a successor, an event which is only accidental and certainly rare. A court would be fully justified in holding that in such a case it was\n\n8UPREME COUR'l'\n\nU.EPOHTS\n\n[1965] 3 ~.C.R.\n\nintended that an order for recovery of possession can be made A against the assignee alohe fr that would enable the object of the statute which was to enable the landlord to recover possession, to be achieved.\n\nAn interpretation which defeats the object of a statute is, of course, not permissible.\n\nThen, looking at s. 18 of the Act I find that it clearly colltem- B plates an order for recovery of possession under s. 14 against a sub-tenant. It says, \"Where an order for eviction in respect of any premises is made under s. 14 against a tenant but not against a sub-tenant referred to in section 17\", then in the circumstances mentioned, the sub-tenant shall be deemed to become a direct tenant under the landlord. This section plainly implies that an C order for recovery of possession against a sub-tenant is contem plated by cl. (b) of the proviso to sub-s. q) of s. J.4. The appellant's argument to the contrary cannot be sustained against the clear implication of the Act. If s. 14 contemplates an eviction order against a sub-tenant, it must . equally contemplate such an order against assignees of tenants, Jor the section makes no distinction D between sub-tenants and assignees for the purpose of making such orders.\n\nI am not unmindful of the fact that where an order for recovery of possession of any premises is made under s. 14 against a tenant assigning or sub-letting without the landlord's consent. E\n\nthat order would under s. 25 of the Act be binding on all persons in occupation of the premises except those who leave independent title to them. This section does not however say that an order for recovery of possession against an assignee of a lessee cannot be made. It would not, therefore, support an argument that an order for recovery of possession could be made under s. 14 against an assignee or a sub-tenant. On the other hand, it seems to me that to an application under cl. (b) of the proviso to sub-s. (!) of s. 14 an assignee or sub-tenant, as the case may be, should be a proper party. Under this provision an ejectment order can be made only when the assignment or sub-letting was without the consent of the landlord. If it was with such consent, the assignee or the sub-tenant would be protected by the Act. An assignee or a sub-tenant is, therefore, interested in showing that there was the requisite consent.\n\nThey should hence be entitle; i to be made parties to the proceedings.\n\nOtherwise, if under s. 25 an eviction order obtained against the direct tenant is binding on them, they would be liable to be condemned without a hearing. It is no argument against this view that the direct tenant would protect them, for they cannot be made to depend on him for the protection of their rights. The direct tenant may be negligent or incompetent in his defence; he may even collude with the landlord or he may just not bother. If the assignee or the sub-tenant is thus entitled to be heard to oppose the order for eviction, that would be another reason .for saying that an order eviction could be made against them also; if they could oppose the\n\no. A'1-' l'DUSTRIES v. SARUP (Mud/dkar, J.) 835\n\nA making of the order, it would be unnatural to say that the order could not be made against them. In what I have said in this paragraph, I do not wish to be understood as holding that in view of s. 25 an order for eviction ~.gains! a tenant is in fact binding on his assignee or sub-tenant. Such a decision is not necessary for this case. [ wish, however, to point out that ifs. 25 does not make the eject- B ment order so binding, the appellant cannot resort to it for any assistance.\n\nI have now dealt with the first argument in support of the appeal and I find it unacceptable. The other argument was that the order for recovery of possession was unwarranted as in fact there had been a consent of the respondents to the assignment in favour of the appellant. It is said that the consent was given by a clause in the lease under which Allen Berry & Co. held which reads as follows: -\n\n\"That whenever such an interpretation. would be nece>sary\n\nin order to give the fullest scope and effect legally possible to any covenant or contract herein contained, the expressi0n \"The Lessor\" hereinbefore used shall include his heirs, executors, administrators and assigns and the expression \"THE LESSEE\" hereinbefore used shall include their representatives and assigns.\"\n\nI am unable to accept this contention also.\n\nI notice that the lease gave no express right to the lessee to assign with or without the consent of the lessor. The lessee no\n\ndoubt had that right under the Transfer of Property Act. It may be that under the clause the lessee's assignee would be included in the expression \"lessee\" as used in the lease; that is the entire effect of th~ clause.\n\nBut this would be so whether the lessor had consented to the assignment or not.\n\nTherefore, this clause does not lead to the conclusion that the_ lessQI' had consented to the assignment. It is of no assistance in the present case. I am also inclined to the view that the consent contemplated by s. 14(1) proviso (b) is a direct consent to a contemplated assignment to a particular assignee: see Regional Properties, Ltd. v. Frankenschwerth(').\n\nClearly the clause in the case relied upon could not be a consent of this kind.\n\nThis point, therefore, also fails.\n\nFor these reasons I would dismiss the appe~.J with costs.\n\nMudholkar, J, In this appeal by certificate granted by the Pun- H jab High Court an unusual question arises for consideration. 'That question is whether an application made under s. 14(i)(b) of the Delhi Rent Control Act, 1958 by a landlord of a building in Delhi against a tenant who happens to he a company incorporated under the Indian Companies Act, cannot be proceeded with and granted on the ground that before the making of any order thereon by the\n\n(') (1951) I All. E.R. 178.\n\nSUPREME COURT REPORTS [1965] 3 s.c.R.\n\nRent Controller the Company. is dissolved and is struck oil' the A record of the case. According tg the appellant who claims to be an assignee from the original tenant, that is, the Company, such an application cannot be proceeded with. and granted while accordiiig to the respondent landlord the fact that the company is dissolved makes no difference.\n\nThe facts which are not in dispute and which have been stated in the judgment of Bachawat J., need not be recapitulated because what I have already said is sufficient to enable me to deal with othe point.\n\nThe relevant part of s. 14(1) reads thus :\n\n\"Notwithstanding anything to the contrary contained in any other law or contract no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord a, gainst a tenant:\n\nProvided that the Controller may, on an application made D •\n\n•' .. '\n\nto him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: -\n\n(b) that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord;\n\nIt is not necessary to refer to cl. (a) or to the several clauses following cl. (b) in this sub-section or to any of the sub-sections of. s. 14.\n\nLooking at sub-s. (!)what we find is that it enacts a bar to\n\nthe making of an order or decree for the recovery of possession of any premises by any court or the controller against a tenant. In G other words the jurisdiction of a civil court or even of the Rent Controller to make an order of eviction against the tenant is taken away. The proviso, however, lifts the ban against eviction in certain circumstances one of which is that set out in cl. (b). What is important to bear in mind is that sub-s. (!) is intended to protect the possession of the tenant.\n\nA proviso to a section or a sub-sec- H tion is subservient to the main provision. , It would, therefore, follow that the ban against the eviction is lifted only with respect to the possession of the tenant and not of any other person. In 110 far as persons other than the tenant who may be in possession of the premises which pertain to the . tenancy is concerned, the matter is dealt with by s. 25 and we can leave that out at any rate for the present. Another thing to be noticed about s. 14 is that\n\n.,.\n\ns. MIA INDUSTRIES v. SARUP \\Mudholkar, J.) 837\n\nthough under s. 2(i)(b) of the Act the word \"tenant\" includes several other persons in addition to the one with whom there was a contract that expression must be regarded as relating to the same individual in the entire section or at least in subs. (!) of s. 14 wherever it occurs. Thus, if in the first part of sub-s. (I) of s. 14 \"tenant\" is regarded as meaning as \"assignee\" of the tenant then it would have to be given the same meaning in cl. (b) of sub-s. (I) of s. 14. That is to say that if there is a sub-letting or a further assignment or any other kind of parting with possession by an assignee of the original tenant (the assignment by the original tenant having been accepted or acquiesed in by the landlord) such assignee can be evicted by the landlord if the action of the assignee of the kind mentioned was taken by him without his written consent.\n\nNow, since sub-s. (!) is a bar to the jurisdiction of the Rent Controller to make an order or decree for recovery of possession against a tenant it must necessarily follow'that the tenant must be D a party to a proceeding before him right up to the date of the making of the decree or order.\n\nThus, if the tenant dies during the pendency of th~ proceedings and his legal representative is not substituted on the record in his place, the proceeding will abate against him and the Rent Controller will ))ave no jurisdiction to make an order in favour of the landlord. That is to say, the pro- E viso will not be available to the landlord no matter what the tenant had .done if the records of the proceeding became defective because neither the tenant nor his legal representative was any longer \"! party to those proceedings.\n\nThe reason for this is that the ground upon which the landlord's application is based can be availed of for lifting the ban on the eviction by the Rent Controller F of the tenant alone.\n\nUnless an order is obtained against the tenant there would be no occasiOn for pressing in aid the provisions of s. 25 of the Act.\n\nWhere during the pendency of the proceedings before the Rent Controller the tenant dies or makes an assignment of whatever interest he may still have left in the demised premises no difficulty would arise because his legal representative or G assignee could be brought on record in his place. But, it must be admitted, that an anomalous position results where the tenant happening to be a company is dissolved during the pendency of the proceedings and can, therefore, be not represented by any person.\n\nThe Act does not contemplate this position nor even does the Code of Civil Procedure and so we have it that the defect in the record H resulting from the dissolution of a company cannot be removed at all.\n\nThe result, however, of this is that the jurisdiction of the Controller to proceed with the application of the landlord and therefore to make eventually an order or decree entitling the landlord to recover possession from the tenant ceases to be exercisable. Apparently this curious position arises because of a lacuna in the law.\n\nSuch a lacuna cannot be removed by the Courts without assuming the power to legislate-whit:h obviously is beyond the\n\n838 SU!>REl!E\n\nCOURT\n\nREPORTS [1965) 3 s.c.R.\n\ncompetence of any court. The duty of courts is merely to ad- A minister the law as they find it. The only way for remedying the defect is for the legislature to step in and amend the law.\n\nThe result of what has happened in this case is that the right which the landlord possessed to evicV the now defunct company from the premises through the. intervention of the Rent Controller B because the company had assigned the demised premises to an other without his consent can no longer be availed of by him. The assignee, who is the appellant before us, can therefore contintte to be in possession of the premises even though he may have been liable to be evicted with the aid of s. 25 had the company not been dissolved in the meanwhile. Whether the landlord has now a a right under the general law to evict the appellant is not a matter upon which I would express an opinion because it does not strictly arise at this stage. For these reasons I would allow the appeal, set aside the orders of the courts below and dismiss the application of the respondent-landlord under s. 14(1)(b) of the Act. In the particular circumstances of the case I would direct that costs D throughout shall be borne by the parties as incurred.\n\nBachawat, J. Originally one-Amar Sarup owned the land and building at p•1t No. 5, Block 'M', Connaught Circus, New Delhi.\n\nBy a lease dated March 1, 1956, Amar Sarup leased the property_ to Allen Berry & Co. (Calcutta) Ltd., (hereinafter referred to as the E tenant) for a period of five years on a monthly rent of Rs. 297 / ·.\n\nSometime thereafter, Amar Sarup transferred the property to the respondents.\n\nIn or about May, 1959, the tenant assigned the tenancy rights. and parted with possession of the whole of the premises to the appellant. On October 6, 1959, the respondents filed an application before the Rent Controller, Delhi praying for F eviction of the tenant and the appellant. The tenant, a limited company, had gone into voluntary Jiq1uidation on September 26, 1959 and it was finally wound up an~ dissolved on October 29,\n\n1960. On its dissolution, the tenant ceased to exist, and by order of the Rent Controller, its name was s)ruck off from the array of parties in the pending application. By an order dated October G 10, 1962, the Rent Controller passed [ order of eviction against the appellant. An appeal by the app llant to the Rent Control Tribunal, Delhi was dismissed on Janu ry 23, 1963, and a second appeal to the Punjab High Court was ismissed on May 10, 1963.\n\nA Letters Patent Appeal from the ordfr dated May I 0, 1963 was dismissed on December II, 1963 on \\he ground that the appeal B. was not maintainable. and an appeal to this Court from the last • order was dismissed on January 18, 1965. The appellant has now preferred this appeal from the order dated May 10, 1963 by special leave granted by this Court.\n\nThe respondents-landlords instituted the proceeding for eviction of the tenant and its assignee relying on the provisions of\n\nt A\n\nASIA INDUSTitIES v. ·~UP (Bac/iawat, J.) 839\n\ns. 14(1) of the Delhi Rent Control Act, 1958 (Act 59 of 1958). the relevant portion of which is as follows:\n\n\"14()). Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds, namely: -\n\n• • •\n\n(b) that the tenant has, on or after the 9th day of June, I 962 sub-Jet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the land- n lord;\"\n\nThe case of the landlords is that \"the tenant has ... assigned ... the whole of the premises without obtaining the consent in writing of the landlord\", and, therefore, the Controller had jurisdiction to make an order for possession.\n\nThe tenant is forbidden by s.\n\nI 6(3)(b) of the Act to make the assignment, for contravention of s. !6(3)(b) he is punishable with fine under s. 48(2), and the assignment is a ground for eviction under s. 14(1), proviso, paragraph (b), and so, the landlords submit that the Controller had jurisdiction to make the order for possession against the tenant and its assignee, and on the dissolution of the tenant, against the assignee alone.\n\nCounsel for the appellant contended that the Controller had no jurisdiction to make the order for possession in the absence of the original tenant. I cannot accept this submission.\n\nBoth the tenant and the assignee were properly parties to the proceedings for possession, and if the tenant-company bad not been dissolved, the Controller would have been competent to make the order for possession. The tenant bas since been dissolved and ceased to exist, no one can be substituted in its place, and I do not see why the proceedings cannot now continue against the assignee alone.\n\nParagraph (b) of the proviso to s. 14(1) evidently contemplates proceedings for possession against both the tenant and the assignee, who as a result of the assignment bas been put in possession of the premises. Counsel for the appellant made the alternative submission that paragraph (b) contemplates an assignment by the tenant against whom the order for eviction is made, and as the appellant was the assignee and not the assignor, there was no ground for its eviction under paragraph (b). It is true that other paragraphs of the proviso contemplate the eviction of the tenant on the ground of some act on the part of the tenant against whom\n\nSUPREME\n\nCOURT\n\nREPORTS [1965] 3 s.c.R.\n\nthe proceeding for possession is. brought, but under paragraph (b), A the assignment is a ground of eviction of both the assigning tenant and the assignee, and in the event of an assignment without the consent in writing of the landlord, the Controller has jurisdiction to make an order for possession not only against the assigning tenant but also against the assignee.\n\nCounsel for the appellant next referred us to cl. 7 of the lease, which is in these terms:\n\n\"That, whenever such an interpretation would be necessary\n\nin order to give the fullest scope and effect legally possible to any covenant or contract herein contained, 0 the expression 'The Lessor' hereinbefore used shall include his heirs, executors, administrators and assigns and the expression 'The Lessee' hereinbefore used shall include their representatives and assigns.\"\n\nCounsel for the appellant submitted that by cl. 7 of the lease, the landlords have given their consent in writing to the assignment. I D cannot accept this submission. The consent in writing within the meaning of paragraph (b) of the proviso to s. 14(1) may be either general or special, but no such consent was given by cl. 7.\n\nThe effect of cl. 7 is that the assignee of the lease enjoys the benefits and is subject to the burden of the covenants in the lease, but the clause does not amount to a consent by the landlord to an assign- E ment either expressly or by necessary implication. The assign ment to the appellant was without the consent in writing of the respondents. The Controller rightly passed the order for. possession of the premises.\n\nCounsel for the appellant contended that the contractual term F of the lease not having expired on October 6, 1959, the proceeding before the Controller was not maintainable. We indicated in the course of the argument that this contention not having been raised in the Courts below, we are not inclined to allow the appellant to raise it here for the first time.\n\nG In the result, the appeal is dismissed with costs.\n\nORDER\n\nIn accordance with the opinion of the majority, the appeal is dismissed with costs. The appellant will have a month's time from B today to vacate the premises:", "total_entities": 90, "entities": [{"text": "SOUTH ASIA INDUSTRIES PRIVATE. LTD", "label": "PETITIONER", "start_char": 17, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "SOUTH ASIA INDUSTRIES PRIVATE. LTD", "offset_not_found": false}}, {"text": "S. SARUP SINGH AND OTHERS", "label": "RESPONDENT", "start_char": 57, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "S. SARUP SINGH AND OTHERS", "offset_not_found": false}}, {"text": "A. K. SARKAR, J.", "label": "JUDGE", "start_char": 101, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR*", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 118, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "R. MUDHOLKAR", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ.", "label": "JUDGE", "start_char": 135, "end_char": 154, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT*", "offset_not_found": false}}, {"text": "Delhi Rent Control Act", "label": "STATUTE", "start_char": 157, "end_char": 179, "source": "regex", "metadata": {}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 198, "end_char": 206, "source": "regex", "metadata": {"linked_statute_text": "Delhi Rent Control Act", "statute": "Delhi Rent Control Act"}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 517, "end_char": 525, "source": "regex", "metadata": {"linked_statute_text": "Delhi Rent Control Act", "statute": "Delhi Rent Control Act"}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 545, "end_char": 573, "source": "regex", "metadata": {}}, {"text": "Supreme Court", "label": "COURT", "start_char": 886, "end_char": 899, "source": "ner", "metadata": {"in_sentence": "Having moved unsuccessfnlly the Rent Control Tribunal and the High Court, the appellant, appealed to the Supreme Court contending that: (i) the order made against the appellant, after the lessee ceased to be a party, was incompetent, as the only person against whom an order for recovery of possession can be made under the clause, is the tenant who assigned the tenancy, and\n\n(ii) the clause in the lease by which the term \"lessee\" included the lessee's assignee operated as a consent by the respondents, to assign."}}, {"text": "s. 25", "label": "PROVISION", "start_char": 2712, "end_char": 2717, "source": "regex", "metadata": {"statute": null}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 3128, "end_char": 3136, "source": "ner", "metadata": {"in_sentence": "If they are thus entitled to be heard to oppose the order of ev1ct1on, such an order could be made ar:rainst them a1.:::o\n\n[833F-G, H; 834C, E, H-835A]\n• 829\n\nSUPH.EME COURT REPORTS\n\n(1965) 3 S.C.R.\n\nPer Bachawat J.(i): Both the tenant and the assignee were pro- A perly parties to the proceedings for possession and if the tenant comf pany had been dissolved, there is no reason why the proceedings could not continue against the assignee alone."}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 3823, "end_char": 3832, "source": "ner", "metadata": {"in_sentence": "839H-840B]\n\nPer Mudholkar J. (Dissenting)\n\nThe right which the respondents possessed to evict the defunct company from the premises, because the company had assigned the tenancy to the appellant without the respondents' consent could not be availed< of by them, and the appellant could therefore continue in possession. [", "canonical_name": "R. MUDHOLKAR"}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 4177, "end_char": 4185, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 4538, "end_char": 4543, "source": "regex", "metadata": {"statute": null}}, {"text": "Sarkar", "label": "JUDGE", "start_char": 4912, "end_char": 4918, "source": "ner", "metadata": {"in_sentence": "[836H, 837F-H] ·\n\n(ii) Per Sarkar J.: The clause in the lease according to which \"the lessee\" includes his assignee, does not lead to the conclusion tbat he lessor consented to the assignment."}}, {"text": "C. B. Agarwala", "label": "OTHER_PERSON", "start_char": 5727, "end_char": 5741, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, B. R. L. Iyengar, P. N. Chaddha, S. K.\n\nMehta and K. L. Mehta, for the appellant."}}, {"text": "B. R. L. Iyengar", "label": "LAWYER", "start_char": 5743, "end_char": 5759, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, B. R. L. Iyengar, P. N. Chaddha, S. K.\n\nMehta and K. L. Mehta, for the appellant."}}, {"text": "P. N. Chaddha", "label": "LAWYER", "start_char": 5761, "end_char": 5774, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, B. R. L. Iyengar, P. N. Chaddha, S. K.\n\nMehta and K. L. Mehta, for the appellant."}}, {"text": "S. K.\n\nMehta", "label": "LAWYER", "start_char": 5776, "end_char": 5788, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, B. R. L. Iyengar, P. N. Chaddha, S. K.\n\nMehta and K. L. Mehta, for the appellant."}}, {"text": "K. L. Mehta", "label": "LAWYER", "start_char": 5793, "end_char": 5804, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, B. R. L. Iyengar, P. N. Chaddha, S. K.\n\nMehta and K. L. Mehta, for the appellant."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 5826, "end_char": 5837, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and Gopal Singh for Harbans Singh, for respondents Nos."}}, {"text": "Gopal Singh", "label": "LAWYER", "start_char": 5842, "end_char": 5853, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and Gopal Singh for Harbans Singh, for respondents Nos."}}, {"text": "Gurcharan Singh", "label": "LAWYER", "start_char": 5902, "end_char": 5917, "source": "ner", "metadata": {"in_sentence": "Gurcharan Singh and Gopal Singh for Harbans Singh, for respondents Nos."}}, {"text": "Harbans Singh", "label": "LAWYER", "start_char": 5938, "end_char": 5951, "source": "ner", "metadata": {"in_sentence": "Gurcharan Singh and Gopal Singh for Harbans Singh, for respondents Nos."}}, {"text": "S1", "label": "PROVISION", "start_char": 6011, "end_char": 6013, "source": "regex", "metadata": {"statute": null}}, {"text": "A Sarkar", "label": "JUDGE", "start_char": 6039, "end_char": 6047, "source": "ner", "metadata": {"in_sentence": "S1\\H.FP (Sarkar, J.) 831\n\n• A Sarkar and Bachawat, JJ."}}, {"text": "New Delhi", "label": "GPE", "start_char": 6243, "end_char": 6252, "source": "ner", "metadata": {"in_sentence": "Sarkar, J. The respondents are the owners of certain premises in Connaught Circus in New Delhi, which were let out to Allen Berry & Co. <Calcutta) Ltd. Sometime in 1959 Allen Berry & Co.\n\nB transferred the lease to the appellant and put the latter in possession."}}, {"text": "Allen Berry & Co. <Calcutta) Ltd.", "label": "ORG", "start_char": 6276, "end_char": 6309, "source": "ner", "metadata": {"in_sentence": "Sarkar, J. The respondents are the owners of certain premises in Connaught Circus in New Delhi, which were let out to Allen Berry & Co. <Calcutta) Ltd. Sometime in 1959 Allen Berry & Co.\n\nB transferred the lease to the appellant and put the latter in possession."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 6568, "end_char": 6573, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 6581, "end_char": 6609, "source": "regex", "metadata": {}}, {"text": "Allen Berry & Co.", "label": "ORG", "start_char": 6655, "end_char": 6672, "source": "ner", "metadata": {"in_sentence": "b) of the proviso to sub-s. (1) of s. 14 of the Delhi Rent Control Act, 1958 to the Controller appointed under it against Allen Berry & Co. and the apellant for an order for recovery of possession of the pre- C mises from them."}}, {"text": "High Court of Punjab", "label": "COURT", "start_char": 7247, "end_char": 7267, "source": "ner", "metadata": {"in_sentence": "The appellant then moved the High Court of Punjab for setting aside the order of the Tribunal, but there also it was unsuccessful."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 7647, "end_char": 7652, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 14", "label": "PROVISION", "start_char": 7701, "end_char": 7706, "source": "regex", "metadata": {"statute": null}}, {"text": "9th day of June, 1952", "label": "DATE", "start_char": 8197, "end_char": 8218, "source": "ner", "metadata": {"in_sentence": "This contention was based on an interpretation of the terms of sub-s. (J) of s. 14, the material part of whici) is set out below:\n\nS. 14\n\n(1) Notwithstanding anything to the contrary contained in any other Jaw or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-\n\n(a)\n\n(b) that the tenant has, on or after the 9th day of June, 1952, sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord;\n\nThe contention of the appelJant was put in this way: The first part of sub-s. (]) ofs."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 9247, "end_char": 9252, "source": "regex", "metadata": {"statute": null}}, {"text": "Allen Berry", "label": "OTHER_PERSON", "start_char": 9639, "end_char": 9650, "source": "ner", "metadata": {"in_sentence": "I wish to observe at once that if this contention is correct-which I do no~ think it is-then the order could never be made against C the appellant and the fact that Allen Berry & Co. ceased to be a party to the proceedings made no difference in this regard."}}, {"text": "s. 2(1)", "label": "PROVISION", "start_char": 11664, "end_char": 11671, "source": "regex", "metadata": {"statute": null}}, {"text": "ASIA INDUSTHIES I'. SAHUP", "label": "RESPONDENT", "start_char": 11886, "end_char": 11911, "source": "ner", "metadata": {"in_sentence": "ASIA INDUSTHIES I'."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 13762, "end_char": 13767, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18", "label": "PROVISION", "start_char": 15444, "end_char": 15449, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 15544, "end_char": 15549, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 15651, "end_char": 15656, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 15718, "end_char": 15728, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 16111, "end_char": 16116, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 16465, "end_char": 16470, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 16571, "end_char": 16576, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 16923, "end_char": 16928, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 17069, "end_char": 17074, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 17568, "end_char": 17573, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 18455, "end_char": 18460, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 19730, "end_char": 19754, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 20214, "end_char": 20222, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(i)(b)", "label": "PROVISION", "start_char": 20719, "end_char": 20730, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 20738, "end_char": 20766, "source": "regex", "metadata": {}}, {"text": "Delhi against a tenant who happens to he a company incorporated under the Indian Companies Act", "label": "STATUTE", "start_char": 20798, "end_char": 20892, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "SUPREME COURT REPORTS [1965] 3 s.c.R.\n\nRent Controller the Company", "label": "COURT", "start_char": 21026, "end_char": 21092, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS [1965] 3 s.c."}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 21646, "end_char": 21654, "source": "regex", "metadata": {"linked_statute_text": "Delhi against a tenant who happens to he a company incorporated under the Indian Companies Act", "statute": "Delhi against a tenant who happens to he a company incorporated under the Indian Companies Act"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 22485, "end_char": 22490, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 23448, "end_char": 23453, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 23543, "end_char": 23548, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(i)(b)", "label": "PROVISION", "start_char": 23624, "end_char": 23634, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 23867, "end_char": 23872, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 23937, "end_char": 23942, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 24079, "end_char": 24084, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 25600, "end_char": 25605, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 26180, "end_char": 26207, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 25", "label": "PROVISION", "start_char": 27503, "end_char": 27508, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)(b)", "label": "PROVISION", "start_char": 27896, "end_char": 27907, "source": "regex", "metadata": {"statute": null}}, {"text": "Amar Sarup", "label": "OTHER_PERSON", "start_char": 28075, "end_char": 28085, "source": "ner", "metadata": {"in_sentence": "Bachawat, J. Originally one-Amar Sarup owned the land and building at p•1t No."}}, {"text": "Allen Berry & Co. (Calcutta) Ltd.", "label": "ORG", "start_char": 28237, "end_char": 28270, "source": "ner", "metadata": {"in_sentence": "By a lease dated March 1, 1956, Amar Sarup leased the property_ to Allen Berry & Co. (Calcutta) Ltd., (hereinafter referred to as the E tenant) for a period of five years on a monthly rent of Rs."}}, {"text": "October 6, 1959", "label": "DATE", "start_char": 28594, "end_char": 28609, "source": "ner", "metadata": {"in_sentence": "On October 6, 1959, the respondents filed an application before the Rent Controller, Delhi praying for F eviction of the tenant and the appellant."}}, {"text": "September 26, 1959", "label": "DATE", "start_char": 28809, "end_char": 28827, "source": "ner", "metadata": {"in_sentence": "The tenant, a limited company, had gone into voluntary Jiq1uidation on September 26, 1959 and it was finally wound up an~ dissolved on October 29,\n\n1960."}}, {"text": "October 29,\n\n1960", "label": "DATE", "start_char": 28873, "end_char": 28890, "source": "ner", "metadata": {"in_sentence": "The tenant, a limited company, had gone into voluntary Jiq1uidation on September 26, 1959 and it was finally wound up an~ dissolved on October 29,\n\n1960."}}, {"text": "Rent Control Tribunal, Delhi", "label": "COURT", "start_char": 29197, "end_char": 29225, "source": "ner", "metadata": {"in_sentence": "An appeal by the app llant to the Rent Control Tribunal, Delhi was dismissed on Janu ry 23, 1963, and a second appeal to the Punjab High Court was ismissed on May 10, 1963."}}, {"text": "Janu ry 23, 1963", "label": "DATE", "start_char": 29243, "end_char": 29259, "source": "ner", "metadata": {"in_sentence": "An appeal by the app llant to the Rent Control Tribunal, Delhi was dismissed on Janu ry 23, 1963, and a second appeal to the Punjab High Court was ismissed on May 10, 1963."}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 29288, "end_char": 29305, "source": "ner", "metadata": {"in_sentence": "An appeal by the app llant to the Rent Control Tribunal, Delhi was dismissed on Janu ry 23, 1963, and a second appeal to the Punjab High Court was ismissed on May 10, 1963."}}, {"text": "May 10, 1963", "label": "DATE", "start_char": 29322, "end_char": 29334, "source": "ner", "metadata": {"in_sentence": "An appeal by the app llant to the Rent Control Tribunal, Delhi was dismissed on Janu ry 23, 1963, and a second appeal to the Punjab High Court was ismissed on May 10, 1963."}}, {"text": "January 18, 1965", "label": "DATE", "start_char": 29553, "end_char": 29569, "source": "ner", "metadata": {"in_sentence": "and an appeal to this Court from the last • order was dismissed on January 18, 1965."}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 29867, "end_char": 29875, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 29883, "end_char": 29911, "source": "regex", "metadata": {}}, {"text": "s. 48(2)", "label": "PROVISION", "start_char": 31029, "end_char": 31037, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 31089, "end_char": 31097, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 31938, "end_char": 31946, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 33010, "end_char": 33015, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 33480, "end_char": 33485, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 33681, "end_char": 33689, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 33757, "end_char": 33762, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 33779, "end_char": 33784, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_841_853_EN", "year": 1965, "text": "t A\n\nRAM CHARAN DAS\n\nGIRJANANDINI DEVI AND ORS.\n\nB April 20, 1965\n\n(A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.J\n\nU.P. Court of Wards Act, 1912 (Act 4 of 1912), s. 37(a)-Fami!y Settlement whether amounts to transfer or creation of interest in 0 property within the mraning of section.\n\nComprornise in suit-Doc.ument recording compromise 'Whether amounts to family settlement-Monies paid by one of the pa,-ties under the document-Other parties whether estopped from cha!leng ing its validity-Party receiving benefit under document-Whether can challenge its validity.\n\nC's property passed under his will, drawn in 1883, to K and M who were brothers. M died and K entered into possession of his share also. On K's death in 1922 his mother entered into possession of the whole property. She gave over the management of the property to the Court of Wards under s. 10 of the U.P. Court of Wards Act, 1912.\n\nThe daughter of M however with the consent of K's mother got her father's share released from the management of the Court of Wards in her favour. In 1932 G, sister's son of K, filed a suit in which he challenged the release of M's share in favour of his daughter. Two other suits were filed in respect of the property by descendants of C's brother who as collaterals claimed to. be next reversioners to the property. The plaintiff in onE: of these suits was the present appellant; in the other suit the plaintiff was his brother. In these suits a declaration was sought that G and M's daughter had no rights in the properties in question. G, M's daughter. K's mother and the Court of Wards were made parties to these suits. Both these suits were compromised. The suit of the present appellant was compromised by a document Ex. Y-13, to which, among others, the appellant, G, and K's mother were parties. G had withdrawn his own suit shortly b€fore.\n\nActing on the document Ex. Y-13 G paid monies to the Court of Wards to clear his liabilities and get released from its management the propertiesi in question. G, M's daughter, K's mother and the Court of promise. However, subsequently, the appellant filed a suit in which he challenged the validity of Ex. Y-13. Having failed in the trial court as well as in the High Court he appealed to this Court by special leave.\n\nThe questions that fell for determination were: (1) whether Ex.\n\nY-13 was binding !>fl the parties as a family arrangement or settlement, (2) whether certain reservation in the said deed, leaving it open to the parties to challenge its recitals in certain contingencies had the effect that -the deed was not intended to be final, and (3) whether the family settlement fell within the miscl)ief of s. 37(a) of the U.P.\n\nCourt of Wards Act.\n\nHELD: (i) The document Ex. Y-13 was in substance a family arrangement and therefore binding on all the parties to it. On the face of it, the document was a compromise of conflicting claims. The\n\n8l\"l'H1'; ME <'(ll\"HT .HEl'l)ft'l'S [I !l(ifJj ; J \".c:.R.\n\nparties recognised each others' rights to property, which they had A earlier disputed. The suit filed by G was withdrawn shortly before f the document was executed and those filed by the appellant and his brother were compromised on the day of its execution. All these transactions were part of one main transaction which was the settlement by members of the family of all their property disputes once and for all. Further, all those who could be said to be interested in the property were made perties to the transaction. [845H-846A] B\n\nIn these circumstances, the appellant who had taken benefit under the transaction was not entitled to turn round and challenge its validity. He was also estopped from doing so because G, acting on the document had paid monies to the Court of Wards to get his property 1 released. [850G l\n\nRamgouda Annagouda v. Bhausahe b, L. R. 54 I.A. 396, relied on.\n\n(ii) Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word 'family' in this context is not to be given a narrow meaning. In Ramgouda Annagouda's cRse, of the three parties. to the settlement cf a di9pute concerning the property of a deceased person one was his widow, an- D other her brother, and the third her son-in-law. The two latter were ,- not heirs of the deceased, yet bering in mind their relationship to the widow the settlement of the dispute was regarded as the settlement of a family dispute. The consideration for such a settlement is the expectation that it will result in amity and goodwill amongst persons bearing relationship to one another. That consideration having passed by each of the disputants, the settlement consisting of recognition of the right asserted by each other Cljnnot be permitted to be D impeached thereafter. [850F-H, 851A-B]\n\n(iii) No doubt the parties to Ex. Y-13 recognised each others relationship to K only for the purposes of the deed, and also reserved to themselves the right to challenge the recitals to the deed, in certain contingencies. Thereby it is not established that the document was not intended to be final. Read as a whole th\" document left no F doubt that it was intended to be a final settlement. If it were intended otherwise there would have been express mi:ntion to that effect in the deed. [848A-B] Moreover what was permitted was a challenge to the recitals only. What the appellant's suit challenged. however was not the recitals but the terms of the deed which none of the parties wail given liberty to derogate from. f849B-Cl G\n\n(iv) A family settlement is not a transfer or creation of interest in the property within the meaning of s. 37(a) of the U.P. Court oi Wards Act, 1912. It is in no sense an alienation by a limited owner of family property. Apart from that the two suits which were pendin11 were compromised with the full knowledge of the Court of Wards which was also a party to both the suits and the Court of Wards in H fact accepted monies from G which were due to it. In these circumstances the appellant was not entitled to press in his favour the pt\"Ovisions of s. 37(a) of the U.P. Court of Wards Act. [S51C-852H]\n\nMst. Hiran Bibi v. Mst. Sohan Bibi, A.I.R. 1914 (P.C.) 44, Khmmi Lal v. Govind Krishna Narain, I.L.R. 33 All. 35, Man Singh v.\n\nNowlakhbati, L. R. 46 I.A. 72 and Sureshwar Misser '1. Nach.iappa Gounden, L. R. 46 I.A. 72. and Sureshtvar Misser v. Maheshrani Misrain L. R. 47 I.A. 233,\n\n/.' • ···\"'~-=J-;,'.., r.--_-, ·,,, . - . -. . ,•\n\nO •\".-'' . , - \\ '. ...... ' .. ' •. ... - ~-- \", _ .. ;-- .' .---. ' .. . IWt-CHARAN DAS ii. GIRJANArollNl DEVI (Mudholkar. J.) 843\n\n• A\n\n-~ ----\\ .. _ . -·>z~ .. , - ; '--~<',-:'.,)'.._ - :-.-~\n\n- -\n\n. CML' APJ.'ELLATE JURISDICTION: Civil Appeal No. 520 of 1961\n\n A.ppeal by ; pecql leave from the judgment aaj order dated f>eptem!:>er.23.1958, 9f the Allahabd High Court in first Appeal ·\n\nNo. _392 of 1944. ·\n\nS. P. Si[lha, E. C. Agarwalq, S. Shaukat Bussa.in and P. C.\n\nAgalµ, f9r he appellant.\n\nNiren De,. Additional Solicitor-General. Yogeshwar . Prasad and A. N. Goyal, for respondent No .. 1.\n\nModholkar, J. The substantial question which falls for decision in this• appeal is as to the legal effect of a deed, Ex. Y. 13, .. dated March 31. 1933 described in the paper-book as a deed or partition. A subsidiary question also arises for consideration which is, whether the validity of the transaction. evidenced by the _deed D is affected by reason of the fact that the propertf comprised therein was at the time of its execution, under the management of the Court of Wards. According to the plaintiff the deed was inval'd and did not affect his right to a share in the property in the suit..\n\nHis contention failed both in the trial court as well as in the High\n\nCoµrt. .\n\nThe property covered by the deed belonged to one Kanhaiyalal who died on June 10, 1922 without leaving a widow or any issue, This property, along with some other property originally belonged to Kanhaiyalal's grandfather Chunnilal. It is said by some of the parties that by a will executed by him in the year 1883 he devised F his property in favour of Kanhaiyalal and his brother Madho Prasad. Madho Prasad died during the life.time of Kanhaiyalal, leaving a daughter Maheshwari Bibi. After Madho Prasad's death Kanhaiyalal entred into possession of the , property which had been bequeathed to 'Madho Prasad by Chunnilal.\n\nAfter Kanhaiyalal's. death Kadma Kuar,, his mother, entered into possession of the entire property which was in -the possession of Kanh&'yalal till his death. Kadma Kuar died on October 14, 1937 and shortly thereafter the suit out of which this appeal arises was instituted by Ram Charan Das, the appellant. It may be mentioned that Kanhaiyalal and Madho Prasad had a sister by name Mst. Pyari Bibi. She had a son named Gopinath who. died in the year 1934 leaving a widow, Girja Nandini, the first defendant to the suit. The plaintiff is the sixth son of Diwan Madan Gop31. Diwan Madan Gopal was one of the two sons of Brij:aJ and Brijlal was the only son of Deoki Nandan.\n\nDwki Nandan himself was the elder brother of Chunnilal. The plaintiff who 's the appellant . before us is thus' a collateral of i<:anhaiyalal. It is'not disputed that he and his brothers were the next reversioners entitled to succeed to Kanhaiyalal's, property. ·\n\nL/PiDJ.\"iCIl5 •\n\n,.., '\n\n- SH -•f\n\n{ '-~ .SUPRE!i:lE COURT ,'REPORTS\n\n' -.., -, '\n\n- (19G5] 3 S.C, R.\n\nafter'ilie death of his mother .Kadma Kuar. To this suit he joined .d. ' _, Girja Nandini Devi, widow of Gopinath as defendant No. I and .\n\n- it is s, he who is the contesting respondent before us.\n\nSoon after Kadma Kuar entered into possession of the estate of Kanhaiyalal, she applied to the appropriate authority for taking over possession of management of the property which was in the Jl possession of Kanhaiyafal.at the time of his death whereupon the Court of Wards took over its management under s. IO of the U.P.\n\nCourt of Wards Act, 1912 (IV of 1912). This property consisted _ not only of the property whi, ch Kanhaiyalal had obtained under the\n\n_ will of Chunnilal but also of the property which had been bequeathd in that will to Madho Prasad and of which Kanhaiya!al had ob- C tained possession during his life time. Maheshwari Bibi, the daughter of Madho Prasad laid a claim to the property which had been bequeathed by Chunnilal on the ground that the two brothers who took these properties under Chunnilal's will took them not as joint tenants but as tenants in common. The claim made by her in this respect was examinf; d by the Couri-of Wards and upon D .\n\nKadma Kuar agreeing, the Court of Wards released half of the estate under its management, that is, the share in the property which is _said to have ben bequeathed to Madho Prasad.\n\nIt is necessary to refer to three su; ts which came to be instituted during the life, time of Kadma Kuar, the first of which is 30 I' of 1932. This was instituted by Gopinath w_ho claimed to be the next reversioner upon the ground that he being the sister's son of Kanhaiyalal, had become art heir preferential to the present appellant and his brotherstT>ecause of the passing of the Hindu_ Law of inheritance (Amendment) Act of 1929. To this suit Maheshwari Bibi al)d K:idma Kuar and the Court of Wards were made defend- F ants. He sought therein a declaration to the effect that the Court of Wards had no right to release half .the property in favour of Maheshwari Bibi. This .suit, however, was eventually withdrawn.\n\nTwo other suits, suit No. 53 of 1932 and 54 of 1932, carrie to be filed shortly thereafter. In the first of these the present plaintiff was himself the plaintiff whil(l in the second, his brother Hanuman G Prasad (defendant No. 6 in the. present suit) was the plaintiff. Both of them claimed to be the nearest reversioners upon the ground that the Act of 1929 did not affect their right to the properties. left by Kanhaiyalal. Each of them sought a declaration that Maheshwari Bibi and Gopinath had no right of any kind in respect of these properties. These su; ts were founded on the ground among others II that Maheshwari Bibi had no right because Chunnilal could not by his will devise .the property to her father Madho Prasad and Gopinathhad none because he was not in fact Kanhaiyalal\"s sister's son. Gopinath, Mahe3hwari Bibi. Kadrna -Kuar and the Court of Wards, were made parties to these suits. It is common _ • ground that the claims in both these suits were compromised. Under one of the compro; nises the dispute with Maheshwari B; bi was\n\n. ;.\n\nRill CllA, RAN DAS v. Glll.JANANDINJ DEVI (Mwlhollwr, J.) 8·15\n\nA settled and we are no longer concerned with that matter. Under the other compromise the dispute with Gopinath and Kadma Kuar was settled. Decrees were drawn up in these suits embodying the terms of each of the compromises arrived at amongst the parties. Te latter compromise was entered into in suit No. 53 of 1932 and its date was March 31, 1933. The document, Ex. Y-13 embodies the B terms of the compromise in suit No. 53 of 1932. To that document, amongst other, the appellant, Gopinath and Kadma Kuar were parties.\n\nAccording to the plaintiff the compromise in question was not in law a surrender nor a family arrangement and that in any case Kadma Kuar was not entitled to make a famHy settlement and that C what she did does not amount in law to a surrender. Also according to him Kadma Kuar was a person under disability being at the relevant time a ward under the Court of Wards and, therefore, the transaction was void.\n\nOn behalf of the contesting defendant it was urged in the D courts below that the transaction amounted to surrender of her estate 'by Kadma Kuar and alternatively that it was a family settlement to which the plaintiff was one of the parties and, therefore, he is estopped from challenging the validity of the compromise, particulady so as he has taken benefit thereunder and also because in view of the compromise Gopinath had discharged the debts of E Kanhaiyalal which at law were recoverable from the property in question. Alternatively the defendants contended that the transaction evidenced by the document was an effective surrender by Kadma Kuar in favour of Gopinath who was the presumptive reversioner at that time.\n\nAt this stage it is desirab.le to point out that out of the pro- F perties described in List A of the Schedule to the plaint the plaintiff-appellant lays no claim to items 1 and 2 which are respectively described as properties at Hewett Road, Allahabad, and Goshain Tola, Allahabad nor to item 7(i) described as 8 anna share in a Zamindari village. Such a concession was made before this Court by Mr. S. P. Sinha, counsel for the appellant, when the matter was 6 argued before this Court on April 14, 1964, when the hearing was adjourned to enable the parties to arrive at a settlement. No settlement was arrived at and the matter was re-argued before this Court on .March 8 and 9, 1965. Mr. Sinha has not withdrawn the concession made by him on the earlier occasion. We may also B make a mention of the fact that Mr. Niren De, the Additional Solicitor General has not argued that Ex. Y-13 purports to show that Kadma Kuar surrendered the widow's estate. In the circumstances we proposed to confine ourselves to the consideration of only one matter and that is whether the deed (Ex. Y-13) is a family arrangement and as such binding upon the plaintiff.\n\nIt seems to us abundantly clear that this document was in substance. a family arrangement and, therefore, was binding on all\n\nL /P(D 15ECI-16\n\nSUPBEJIJI\n\nCOUBT .BBPQBTB\n\n[1965) 8 S.C.B.\n\nthe parties to it. Moreove.r it was acted upon by them. For, under A certain terms thereof one of the parties, Gopinath, paid off certain liabilities to which the property which was allotted to his share was subjected. According to Mr. Sinha, however, the transaction evidenced by the document was not a family settlement but only a surrender by Kadma Kuar though in law it could not opera~ as a. surrender firstly because it was not _of the entire estate of which B she was in possession as a limited owner and secondly because of the two sets of persons between whom she divided the property only one could be said to be her reversioner or reversioners and the other a stranger or strangers. In our opinion the document on its face appears to effect a compromise of the cpnfiicting claims of 0 Gopinath on the one hand and the present plaintiff Ram Charan Das and his brothers on the other to the .estate of Kanhaiyalal. In the document Kadma Kuar is referred to as 'first party'. Gopinath\n\nas 'second party' and Ram Charan Das, the appellant before us and his brothers as the 'third party'. In cl.(l) of the document it is stated \"That the first party renounces all her claims to the estate of D her son M. Kanhaya Lal deceased according to the provisions of this deed in favour of the Second and Third party out of which the second party shall be the absolute owner and possessor of the properties detailed in List \"A\" annexed hereto; and the third party shall be the absolute owner and possessors of the properties detailed in the List \"B\" annexed hereto\". These recitals, taken in con- E j mction with the surrounding circumstances indicate that Kadma\n\n\"uar purported to recognise thereby the rights of these parties to her son's properties though earlier she disputed them. Similarly the\n\nrecils \"that the first party shall remain in de facto management of Arra'll Kalan property for her life without any interference from the second or the third party to whom she shall in no case be liable F to render any accounts and that after her death the second party or his heilrs representatives, assigns or transferees and Babu Sehat Bahadur Advocate Allahabad as representing the third party or their heirs, representatives, assigns or transferees shall manage and enter into possession of the said village Arrah Kalan jointly\", indicate that the 2nd and 3rd party were disputing and interfering Q with the right cf Kadma Kuar to the management of one of the properties but ultima!.:!; r, under the document in question, they agreed not to do so. Further, as w,; J.i;:·;~ already pointed out, three suits had been instituted in the year 1932 concerning this very property, one by Gopinath and the other two by the plaintiff and his brother Hanuman Prasad. In his suit Gopinath claimed to be the H next reversioner. The plaintiff appellant Ram Charan.Das claimed that he and his brothers were the next reversioners and not Gopinath. A similar claim was made by Hanuman Prasad In his suit. It is worthy of note Uiat the plaintiff's suit was compromised on the very day on which this document, Ex. Y-13, was executed and that the terms of the settlement were recited in Ex. Y-13. This document further makes express mention of the two suits which were\n\nRill CHARAN DASS u. GIRJANANDINI Dl:VI (; lfudlwlkar, J.) ~7\n\nA_ companion suits, suit No. 53 of 1932 and suit No. 54 of 1932, and says, categorically that these suits shall b~ eemed to be cpro\n\nmised in terms of this deed. By compromising those two suits the plaintiff and h; s brother Hanumim Prasad withdrew their challenge to the claim put forward by Gopinath to the estate of Kanha1yalal.\n\nPrior to this Gopinath had withdrawn his suit in which he had B claimed to be the next reversioner to the estate of Kanhaiyalal after the death of Kadma Kuar. All these transactions are quite evidently part of one main transaction which is the settlement by the members of the family of all those disputes once and for all. No doubt according to the plaint allegation this was merely a temporary arrangement but no reasons have been given nor any material was It placed before the Court from which it could be inferred that it was\n\nnot the intention of the parties that the disputes amongst them. should be finally settled.\n\nMr. Sinha, however, places reliance upon the following recital in Ex. Y-13 and contends that i)le arrangement was not final. The D recital runs thus:\n\n\"That in pursuance of and for the purpose of this deed the First and the Third Party do admit and recognise Babu Gopi Nath, the Second party to be the son of Musammat Peari Bibi the own sister of the late Munshi Kanhaya Lal and the daughter of Musammat Kadma Kuar the First Party; and s'milarly for the purposes of and in pursuance of this deed, the First and the Second party admit and recognise the Third party as the sons of Dewan Madan Gopal a greut-grandson of M. Lalji, the greatgrand father of M-Kanaya Lal as per pedigree set up by them in suits Nos. 53 and 54 of 1932-referred to above.\n\nProvided always that if the rights of the second or the third party to the ownership and possession of their respective properties as detailed in List 'A' items Nos. l to 5 and seven, in List 'B' item Nos. 1, 2, 4, 5 and 8 re5pectively are ever questioned they shall not be precluded from setting up any claim, right or title, propositions of law or fact consistent or inconsistent with the recital of this deed, and if the rights of ownership or possession of the second party to item No. 6 in List •A' annexed hereto or the rights of ownersh; p or possession of the third party to items Nos. 3. 6 and 9 in List 'B' annexed hereto are ever questioned they shall only be entitled to set up claims only consistent with the terms of this deed.\"\n\nNo doubt, the recognition of relationship claimed: by the second party to Kanhaiyalal was admitted by the first and third parties in pursuance an4 for the purposes of the deed. Similarly recognition of the relationship of the third party by the first and the second parties to Kanhaiyalal was admitted by the first and second parties and also in pursuance and for the purposes of the\n\n848 IUPBlllDI\n\nOOUBT\n\nBIPOBTS [1961i] 3 s.c.B.\n\ndeed. This, however, doesnot show that the settlement arrived at A and sought to be given effect to by the deed was not intended to be final. As already stated, the document read as a whole leaves no doubt that it was intended to be ii final settlement of the disputes amongst the parties. If it were intended to be otherwise it would have been natural to find an express statement somewhere in the document to show that it was intended to be a temporary settle- B ment only. The proviso to the aforesaid clause was pressed in aid by Mr. Sinha to support his contention that the settlement was only temporary. The document itself was drawn up in English and looking at the 'formal manner in which it is drawn up and bearing illso fa mind the fact that it came into being when litigations were, pending in court in which the parties to the deed also figured as C parties and was intended to compromise those suits, it would be legitimate to infer that it was drawn up or at least approved .by a lawyer. In that proviso at one place the word \"recitals\" and at another the word \"terms\" were used. The expression \"recitals\" <\"\n\ncurs in the first part of the proviso and it is only with respect to D them that a party is given the liberty Ip set up in a certain circumstance \"any claim or right or title, propositions of law or fact consistent or inconsistent with the recitals in the deed\". Now the expression \"recitals\" means, according to the Dictionary of English Law by Jowitt: \"Statements in a deed, agreement or other formal instrument, introduced to explain or lead up to the operative part B of the instrument.\" It is stated further that recitals are generally divided into m1ITative recitals which set forth the faots on which the instrument is based and introductory recitals which explain the motive for the operative part. Where the recitals are clear and. the operative part is ambiguous the. recitals govern the construction. Normally a recital is evidence as ainst the parties to the r instrument and those claiming under them and in an action on the instrument itself the recitals operate as an estoppel, though that would not be so on a collateral matter. It is not clear why this clause was put in. But even if. we assume that the parties did so because they were apprehensive that the rights of the second or the third party to the ownership and possession of the respective a properties-that is items 1 to 5 and 7 in List A allotted to the second party and items I, 2, 4, 5 and 8 in List J3 allotted to the third party were liable to be challenged by persons not bound by the settlement the reservation was only of the right to challenge the explanatory or narrative recitals in the documents but not of the right to challenge the terms thereof. It therefore affords little B assistance to the plaintiff. The expression \"terms\" used in a document, would, according to webster's New World Dictionary, mean \"condltions of a contract, agreement sale etc. that limit or define its scope or action involved.\" Those parts of Ex-13 which prescribe the conditions upon which the disputes among the parties were settled would be the terms of this document and' so far as these are concerned the proviso shows that none of the parties was\n\n• D\n\nl\\AM CHARAN DAS v. GIRJANANDINI DEVI (Mudholkar, J.) 849\n\ngiven the liberty to derogate from them. Thus, far from showing that the settlement arrived at was of a temporary character the proviso read as a whole further fortifies the conclusion that the settlement was to be binding upon the parties for all time. We may add that the contentions now raised on behalf of the plaintiff denying the rights of Gopinath and of those who claim through him are not based upon any challenge to the \"recitals\" in the documents, as that expression is understood in law, but to the terms and conditions contained in that document. It may be that the properties to which the suit relates would: fall under the items allotted to Gopinath as specified in the first part of the proviso but no liberty has been reserved therein to permit any of the parties to derogate from the terms and conditions upon which the settlement was arrived at.\n\nThe view that the transaction is a family arrangement is borne out by the decision of the Privy Council in Ramgouda Annagouda v Bhausaheb('). The facts of the case which have been correctly summarised in the head note are briefly these:\n\n\"A Hindu died in 1846, leaving a widow who survived until 1912, and a daughter. On the death of the widow A was heir to the estate. In 1868 the widow had alienated nearly the whole property by three deeds executed and registered on the same day. By the first deed she gave a property to her brother, by the second she sold half of another property to A, and by the third: she sold the other half of that property to her son-in-law. The signature of each of the deeds was attested by the two other alienees. A who survived the widow for six years, did not seek to set aside any of the alienations.\n\nAfter his death.his son and grandsons brought a suit to recover the whole property.\" Upon these facts the Privy Council held as follows:\n\n\"Their Lordships consider that the decision of this case depends upon how far the three documents can be taken as separate and independent, or so connected as to form one transaction.\n\nThe long lapse of time between the execution of the deeds and the institution of the suit has rendered it impossible to prove what actually occurred between the parties on that occasion. There is not sufficiently. definite evidence to come to a conclusion as to how far any of those properties were validly encumbered, or what was done with the purchase money alleged to have passed on the two deeds of sale. But the parties to the documents included, or after so great a lapse of time may be presumed in a very real sense to have included, all persons who\n\n~~~~~~~-\n\n(') L.R. 6~ I.A. 396.\n\nLP(D)5SCI-17\n\nSUPREME\n\nCOURT\n\nBEPORTS (1965] 3 s.c.11.\n\nhad any actual or possible interest in the properties- A namely, the widow herself, her brother, who was a natural object of her affection and bounty, her son-inlaw, who was the natural protector of the interests of her daughter and grandson, and the nearest kinsman on the husband's side and the only person from whom any opposition might be apprehended with regard to B dealings by the widow concerning her husband's estate.\n\nTheir Lordships conclude that all the circumstances strongly point to the three documents being part and parcel of one transaction by which a disposition was made of Akkagouda's estate, such as was likely to prevent dis- O pules in the future and therefore in the best interests of all the parties. The three deeds appear thus to be inseparably connected together and in that view Annagouda not only consented to the sale of Shivgouda and the gift to Basappa but these dispositions formed Parts of the same transaction by which he himself acquired D a part of the estate.\"\n\nIn our case, however, there is fortunately only one transaction and we. have definite evidence to show that there were disputes amongst the members of the family and it was avowedly for settling them that the transaction was entered into. Further we have material to E show that all the persons who can be said to be interested in the property were joined as parties to the transaction. In that sense this case is stronger than the one which' the Privy Council had to consider. We have therefore no hesitation in holding that the plaintiff who has taken benefit under the transaction is not now entitled to turn round and say that that transaction was of a kind which F Kadma Kuar could not enter into and was therefore invalid.\n\nMoreover acting on the terms of that document Gopinath paid monies to the Court of Wards for obtaining release from its management of the properties which were allotted to him. The rule of estoppel embodied in s. 115 of the Indian Evidenoe Act, 1872 G would, therefore, shut out such pleas of the plaintiff. Courts give effect to a. family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word 'family' in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succes- B sion or having a claim to a share in the property in dispute. In Ramgouda Annagouda's(') case, of the three parties to the settlement of a dispute concerning the property of a deceased person one was his widow, other her brother and the third her son-in-law. The two latter could not, under the Hindu Law, ba regarded as the\n\n(') L.R. 64 I.A. 396.\n\nI\\AM CHARAN DAS v. GIRJANANDINI DEVI~(Mudholkar, J.) 851\n\nA heirs of the deceased. Yet, bearing in mind their near relationship to the widow the settlement of the dispute was very properly regarded as a settlement of a family dispute. The consideration for such a settlement, If one may put it that way, is the expectation that such a settlement will result in esablishing or ensuring amity and goodwill amongst persons bearing relationship with one another.\n\nB That consideration having been passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter.\n\nThe final contention of Mr. Sinha is based upon s. 37(a) of the U.P. Court of Wards Act, 1912. The relevant portion of this c provision runs thus:\n\n\"A ward shall not be competent--\n\n(a) to transfer or create any charge on, or interest in, any part of his property which is under the superintendence of the Court of Wards, or to enter into any contract which may involve him in pecuniary liability; ............... \".\n\nHere the transaction in question is a family settlement entered into by the parties bona fide for the purpose of putting an end to the dispute among family members. Could it be sa; d that this amounts to a transfer of or creation of an interest in property? For.\n\nE unless it does, the action of Kadma Kuar would not fall within the purview of the aforesaid clause of s. 37. In Mst. Hiran Bibi v.\n\nMst. Sohan Bibi(') approving the earlier decision in Khunni Lal v.\n\nGovind Krishna Narain(') the Privy Council held that a compromise by way of family settlement is in no sense an alienation by a limited owner of family property. This case, therefore, would sup- F port the conclusion that the transaction does not amount to a transfer. Mr. Sinha, however, contends that the transaction amounts to creation of an interest by the ward in property which was under the superintendence of the Court of Wards and in support of his contention relies on Man Singh v NowlakhbatiC). In the first place once it is held that the transaction being a family settlement is not G an alienation, it cannot amonnt to the creation of an interest. For, as the Privy Council pointed out in Mst. Hiran Bibi's(') case in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. It is not necessary, as would appear from the decision H in Rangasami Gounden v. Nachiappa Goundcn(') that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or\n\n(') A.I.R. 1914 P.C. 44. (') I.L.R. 33. All. 356. (') L.R. 53 I.A. ll.\n\n(') L.R. 46 I.A. 72,\n\n852 1 SUPREME couBT Rlll'ORTB (1965] 3 il.G,:8,\n\neven a semblance of a cl<iim ou. somo other ground as, say, affec- A tion. In the second place, in the case .relied upon by Mr. Sinha\n\nthere was no question of the transaction being a family settlement.\n\nIt was sought to be supported upon .the ground that it was a surrender. The Privy Council, however, held that it was not a bona fide surrender evidently because the widow was to get a very substantial amount for maintenance from the reversioners in whose B favour she had purported to surrender the estate and also held that there was in fact no necessity for a surrender of interest of the widow. Since it was not a bona fide surrender it was regarded as one creating only an interest in the property which was under the superintendence of the Court of Wards. Had it been a bona fide surrender s. 60 of the Bihar Court of Wards Act Ul'Qn which reJ.i- C ance was placed in that case woud not have been attracted. Indeed, reliance was placed before the Privy Council on the decision in Sureshwar Misser v. µaheshrani Misrain.(') in support of the appellant's contention that the transaction was valid. While distinguishing this case the Privy Council observed:\n\nl> \"In that case there were serious disputes in the family as to title, and the next reversioners to the son sues the widow and her daughters to set aside the will of her husband under which .the daughters were entitled to succeed to the immovable property on the death of the son without issue. A family compromise was agreed to, E and in performance of it the widow surrenderod all her rights of succssion to the immovable property, and the plaintiff the next reversioner and her daughters gave her for her life a small portion of the land for her maintenance. The Board held that the compromise was a bona fide surrender of the estate and not a device to 't divide it with the next reversioner, the giving of a small portion of it to the widow for her maintenance not being • objectionable, and consequently thatthe trlµ!Sllction was valid under the principles laid down by the board in Rangasami Gounden v Nachiappa Gounden (L. R. 46\n\nI.A. 72)\".\n\nG .\n\nWe may further point out that this decision does not refer to tkeir decisions in Mst. Hiran Bibi v Mst. Sc; han Bibi(') and Khunni Lal\n\nv. Govind Krishna Narain(') and it cannot be 11$8Ullled that they\n\nintended to depart from their earlier view.\n\nApart from that it may be pointed out that the two suits whi~ were then pending were compromised witli the full knowledg• of the Omrt of Wards which was also a party to both the suit11 and\n\n(') L.B. 47 I.A. 233.\n\n(') A.J.R. 191' P.C. \". (') !.L.B. 83 All. 8511.\n\n~ ,,,.\n\nRill CHARAN DAS v. GIRJANANDINI DEVI (Mudholkar, J.) 853\n\nA the Court of Wards in fact released the estate by accepting from Gopinath monies which were due to it. In these circumstances we hold that the plaintiff is not ent'tled to press in aid the provisions .of s. 37(a) of the U.P. Court of Wards Act.\n\nFor all these reasons we uphold the decree of the trial Court B as affirmed by the High Court and dismiss the appeal with 'costs throughout.\n\nAppeal dismissed .", "total_entities": 105, "entities": [{"text": "DAS\n\nGIRJANANDINI DEVI AND ORS", "label": "RESPONDENT", "start_char": 16, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "GIRJANANDINI DEVI AND ORS", "offset_not_found": false}}, {"text": "April 20, 1965", "label": "DATE", "start_char": 51, "end_char": 65, "source": "ner", "metadata": {"in_sentence": "B April 20, 1965\n\n(A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.J\n\nU.P. Court of Wards Act, 1912 (Act 4 of 1912), s. 37(a)-Fami!y Settlement whether amounts to transfer or creation of interest in 0 property within the mraning of section."}}, {"text": "A. K. SARKAR, J.", "label": "JUDGE", "start_char": 68, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR*", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 85, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ", "label": "JUDGE", "start_char": 102, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Court of Wards Act, 1912", "label": "STATUTE", "start_char": 129, "end_char": 153, "source": "regex", "metadata": {}}, {"text": "s. 37(a)", "label": "PROVISION", "start_char": 171, "end_char": 179, "source": "regex", "metadata": {"linked_statute_text": "Court of Wards Act, 1912", "statute": "Court of Wards Act, 1912"}}, {"text": "s. 10", "label": "PROVISION", "start_char": 866, "end_char": 871, "source": "regex", "metadata": {"linked_statute_text": "Court of Wards Act, 1912", "statute": "Court of Wards Act, 1912"}}, {"text": "Court of Wards Act, 1912", "label": "STATUTE", "start_char": 884, "end_char": 908, "source": "regex", "metadata": {}}, {"text": "s. 37(a)", "label": "PROVISION", "start_char": 2677, "end_char": 2685, "source": "regex", "metadata": {"statute": null}}, {"text": "Court of Wards Act", "label": "STATUTE", "start_char": 2699, "end_char": 2717, "source": "regex", "metadata": {}}, {"text": "L. R. 54 I.A. 396", "label": "CASE_CITATION", "start_char": 3836, "end_char": 3853, "source": "regex", "metadata": {}}, {"text": "Ramgouda Annagouda", "label": "OTHER_PERSON", "start_char": 4127, "end_char": 4145, "source": "ner", "metadata": {"in_sentence": "In Ramgouda Annagouda's cRse, of the three parties."}}, {"text": "s. 37(a)", "label": "PROVISION", "start_char": 5706, "end_char": 5714, "source": "regex", "metadata": {"statute": null}}, {"text": "Court oi Wards Act, 1912", "label": "STATUTE", "start_char": 5727, "end_char": 5751, "source": "regex", "metadata": {}}, {"text": "s. 37(a)", "label": "PROVISION", "start_char": 6152, "end_char": 6160, "source": "regex", "metadata": {"linked_statute_text": "Court oi Wards Act, 1912", "statute": "Court oi Wards Act, 1912"}}, {"text": "Court of Wards Act", "label": "STATUTE", "start_char": 6173, "end_char": 6191, "source": "regex", "metadata": {}}, {"text": "S51C", "label": "PROVISION", "start_char": 6194, "end_char": 6198, "source": "regex", "metadata": {"linked_statute_text": "Court of Wards Act", "statute": "Court of Wards Act"}}, {"text": "L. R. 46 I.A. 72", "label": "CASE_CITATION", "start_char": 6347, "end_char": 6363, "source": "regex", "metadata": {}}, {"text": "L. R. 46 I.A. 72", "label": "CASE_CITATION", "start_char": 6409, "end_char": 6425, "source": "regex", "metadata": {}}, {"text": "L. R. 47 I.A. 233", "label": "CASE_CITATION", "start_char": 6471, "end_char": 6488, "source": "regex", "metadata": {}}, {"text": "CHARAN DAS", "label": "JUDGE", "start_char": 6621, "end_char": 6631, "source": "ner", "metadata": {"in_sentence": "IWt-CHARAN DAS ii."}}, {"text": "S. P. Si[lha", "label": "PETITIONER", "start_char": 6956, "end_char": 6968, "source": "ner", "metadata": {"in_sentence": "S. P. Si[lha, E. C. Agarwalq, S. Shaukat Bussa.in and P. C.\n\nAgalµ, f9r he appellant.", "canonical_name": "S. P. Si[lha"}}, {"text": "E. C. Agarwalq", "label": "LAWYER", "start_char": 6970, "end_char": 6984, "source": "ner", "metadata": {"in_sentence": "S. P. Si[lha, E. C. Agarwalq, S. Shaukat Bussa.in and P. C.\n\nAgalµ, f9r he appellant."}}, {"text": "S. Shaukat Bussa.in", "label": "LAWYER", "start_char": 6986, "end_char": 7005, "source": "ner", "metadata": {"in_sentence": "S. P. Si[lha, E. C. Agarwalq, S. Shaukat Bussa.in and P. C.\n\nAgalµ, f9r he appellant."}}, {"text": "P. C.\n\nAgalµ", "label": "LAWYER", "start_char": 7010, "end_char": 7022, "source": "ner", "metadata": {"in_sentence": "S. P. Si[lha, E. C. Agarwalq, S. Shaukat Bussa.in and P. C.\n\nAgalµ, f9r he appellant."}}, {"text": "Niren De", "label": "LAWYER", "start_char": 7043, "end_char": 7051, "source": "ner", "metadata": {"in_sentence": "Niren De,.", "canonical_name": "Niren De"}}, {"text": "Yogeshwar . Prasad", "label": "LAWYER", "start_char": 7084, "end_char": 7102, "source": "ner", "metadata": {"in_sentence": "Yogeshwar ."}}, {"text": "A. N. Goyal", "label": "LAWYER", "start_char": 7107, "end_char": 7118, "source": "ner", "metadata": {"in_sentence": "Prasad and A. N. Goyal, for respondent No .. 1."}}, {"text": "Modholkar", "label": "JUDGE", "start_char": 7145, "end_char": 7154, "source": "ner", "metadata": {"in_sentence": "Modholkar, J. The substantial question which falls for decision in this• appeal is as to the legal effect of a deed, Ex."}}, {"text": "Kanhaiyalal", "label": "OTHER_PERSON", "start_char": 7873, "end_char": 7884, "source": "ner", "metadata": {"in_sentence": "The property covered by the deed belonged to one Kanhaiyalal who died on June 10, 1922 without leaving a widow or any issue, This property, along with some other property originally belonged to Kanhaiyalal's grandfather Chunnilal.", "canonical_name": "Kanhaiyafal.at"}}, {"text": "June 10, 1922", "label": "DATE", "start_char": 7897, "end_char": 7910, "source": "ner", "metadata": {"in_sentence": "The property covered by the deed belonged to one Kanhaiyalal who died on June 10, 1922 without leaving a widow or any issue, This property, along with some other property originally belonged to Kanhaiyalal's grandfather Chunnilal."}}, {"text": "Chunnilal", "label": "OTHER_PERSON", "start_char": 8044, "end_char": 8053, "source": "ner", "metadata": {"in_sentence": "The property covered by the deed belonged to one Kanhaiyalal who died on June 10, 1922 without leaving a widow or any issue, This property, along with some other property originally belonged to Kanhaiyalal's grandfather Chunnilal."}}, {"text": "Madho Prasad", "label": "OTHER_PERSON", "start_char": 8204, "end_char": 8216, "source": "ner", "metadata": {"in_sentence": "It is said by some of the parties that by a will executed by him in the year 1883 he devised F his property in favour of Kanhaiyalal and his brother Madho Prasad."}}, {"text": "Maheshwari Bibi", "label": "OTHER_PERSON", "start_char": 8292, "end_char": 8307, "source": "ner", "metadata": {"in_sentence": "Madho Prasad died during the life.time of Kanhaiyalal, leaving a daughter Maheshwari Bibi.", "canonical_name": "Maheshwari Bibi"}}, {"text": "Kadma Kuar", "label": "JUDGE", "start_char": 8474, "end_char": 8484, "source": "ner", "metadata": {"in_sentence": "death Kadma Kuar,, his mother, entered into possession of the entire property which was in -the possession of Kanh&'yalal till his death.", "canonical_name": "Kadrna -Kuar"}}, {"text": "Kanh&'yalal", "label": "OTHER_PERSON", "start_char": 8578, "end_char": 8589, "source": "ner", "metadata": {"in_sentence": "death Kadma Kuar,, his mother, entered into possession of the entire property which was in -the possession of Kanh&'yalal till his death."}}, {"text": "October 14, 1937", "label": "DATE", "start_char": 8625, "end_char": 8641, "source": "ner", "metadata": {"in_sentence": "Kadma Kuar died on October 14, 1937 and shortly thereafter the suit out of which this appeal arises was instituted by Ram Charan Das, the appellant."}}, {"text": "Ram Charan Das", "label": "PETITIONER", "start_char": 8724, "end_char": 8738, "source": "ner", "metadata": {"in_sentence": "Kadma Kuar died on October 14, 1937 and shortly thereafter the suit out of which this appeal arises was instituted by Ram Charan Das, the appellant.", "canonical_name": "Ram Charan Das"}}, {"text": "Pyari Bibi", "label": "OTHER_PERSON", "start_char": 8835, "end_char": 8845, "source": "ner", "metadata": {"in_sentence": "Pyari Bibi."}}, {"text": "Gopinath", "label": "PETITIONER", "start_char": 8867, "end_char": 8875, "source": "ner", "metadata": {"in_sentence": "She had a son named Gopinath who.", "canonical_name": "Gopinathhad"}}, {"text": "Girja Nandini", "label": "OTHER_PERSON", "start_char": 8920, "end_char": 8933, "source": "ner", "metadata": {"in_sentence": "died in the year 1934 leaving a widow, Girja Nandini, the first defendant to the suit.", "canonical_name": "Girja Nandini Devi"}}, {"text": "Diwan Madan Gop31", "label": "OTHER_PERSON", "start_char": 9002, "end_char": 9019, "source": "ner", "metadata": {"in_sentence": "The plaintiff is the sixth son of Diwan Madan Gop31.", "canonical_name": "Diwan Madan Gop31"}}, {"text": "Diwan Madan Gopal", "label": "OTHER_PERSON", "start_char": 9021, "end_char": 9038, "source": "ner", "metadata": {"in_sentence": "Diwan Madan Gopal was one of the two sons of Brij:aJ and Brijlal was the only son of Deoki Nandan.", "canonical_name": "Diwan Madan Gop31"}}, {"text": "Brijlal", "label": "OTHER_PERSON", "start_char": 9078, "end_char": 9085, "source": "ner", "metadata": {"in_sentence": "Diwan Madan Gopal was one of the two sons of Brij:aJ and Brijlal was the only son of Deoki Nandan."}}, {"text": "Deoki Nandan", "label": "OTHER_PERSON", "start_char": 9106, "end_char": 9118, "source": "ner", "metadata": {"in_sentence": "Diwan Madan Gopal was one of the two sons of Brij:aJ and Brijlal was the only son of Deoki Nandan.", "canonical_name": "Deoki Nandan"}}, {"text": "Dwki Nandan", "label": "OTHER_PERSON", "start_char": 9121, "end_char": 9132, "source": "ner", "metadata": {"in_sentence": "Dwki Nandan himself was the elder brother of Chunnilal.", "canonical_name": "Deoki Nandan"}}, {"text": ".Kadma Kuar", "label": "JUDGE", "start_char": 9520, "end_char": 9531, "source": "ner", "metadata": {"in_sentence": "L/PiDJ.\"iCIl5 •\n\n,.., '\nSH -•f\n\n{ '-~ .SUPRE!i:lE COURT ,'REPORTS\n\n' -.., -, '\n(19G5] 3 S.C, R.\n\nafter'ilie death of his mother .Kadma Kuar.", "canonical_name": "Kadrna -Kuar"}}, {"text": "Girja Nandini Devi", "label": "OTHER_PERSON", "start_char": 9565, "end_char": 9583, "source": "ner", "metadata": {"in_sentence": "Girja Nandini Devi, widow of Gopinath as defendant No.", "canonical_name": "Girja Nandini Devi"}}, {"text": "Kanhaiyafal.at", "label": "OTHER_PERSON", "start_char": 9896, "end_char": 9910, "source": "ner", "metadata": {"in_sentence": "Soon after Kadma Kuar entered into possession of the estate of Kanhaiyalal, she applied to the appropriate authority for taking over possession of management of the property which was in the Jl possession of Kanhaiyafal.at the time of his death whereupon the Court of Wards took over its management under s. IO of the U.P.\n\nCourt of Wards Act, 1912 (IV of 1912).", "canonical_name": "Kanhaiyafal.at"}}, {"text": "Court of Wards Act, 1912", "label": "STATUTE", "start_char": 10012, "end_char": 10036, "source": "regex", "metadata": {}}, {"text": "Kanhaiya!al", "label": "OTHER_PERSON", "start_char": 10258, "end_char": 10269, "source": "ner", "metadata": {"in_sentence": "This property consisted _ not only of the property whi, ch Kanhaiyalal had obtained under the\n\n_ will of Chunnilal but also of the property which had been bequeathd in that will to Madho Prasad and of which Kanhaiya!al had ob- C tained possession during his life time.", "canonical_name": "Kanhaiyafal.at"}}, {"text": "Kadma Kuar", "label": "JUDGE", "start_char": 10665, "end_char": 10675, "source": "ner", "metadata": {"in_sentence": "Kadma Kuar agreeing, the Court of Wards released half of the estate under its management, that is, the share in the property which is _said to have ben bequeathed to Madho Prasad.", "canonical_name": "Kadrna -Kuar"}}, {"text": "Hanuman G Prasad", "label": "LAWYER", "start_char": 11763, "end_char": 11779, "source": "ner", "metadata": {"in_sentence": "In the first of these the present plaintiff was himself the plaintiff whil(l in the second, his brother Hanuman G Prasad (defendant No.", "canonical_name": "Hanuman G Prasad"}}, {"text": "Gopinathhad", "label": "PETITIONER", "start_char": 12301, "end_char": 12312, "source": "ner", "metadata": {"in_sentence": "These su; ts were founded on the ground among others II that Maheshwari Bibi had no right because Chunnilal could not by his will devise .the property to her father Madho Prasad and Gopinathhad none because he was not in fact Kanhaiyalal\"s sister's son.", "canonical_name": "Gopinathhad"}}, {"text": "Kanhaiyalal\"s", "label": "OTHER_PERSON", "start_char": 12345, "end_char": 12358, "source": "ner", "metadata": {"in_sentence": "These su; ts were founded on the ground among others II that Maheshwari Bibi had no right because Chunnilal could not by his will devise .the property to her father Madho Prasad and Gopinathhad none because he was not in fact Kanhaiyalal\"s sister's son.", "canonical_name": "Kanhaiyafal.at"}}, {"text": "Mahe3hwari Bibi", "label": "OTHER_PERSON", "start_char": 12383, "end_char": 12398, "source": "ner", "metadata": {"in_sentence": "Gopinath, Mahe3hwari Bibi.", "canonical_name": "Maheshwari Bibi"}}, {"text": "Kadrna -Kuar", "label": "JUDGE", "start_char": 12400, "end_char": 12412, "source": "ner", "metadata": {"in_sentence": "Kadrna -Kuar and the Court of Wards, were made parties to these suits.", "canonical_name": "Kadrna -Kuar"}}, {"text": "Maheshwari B", "label": "OTHER_PERSON", "start_char": 12597, "end_char": 12609, "source": "ner", "metadata": {"in_sentence": "Under one of the compro; nises the dispute with Maheshwari B; bi was\n\n. ;.", "canonical_name": "Maheshwari Bibi"}}, {"text": "Mwlhollwr", "label": "JUDGE", "start_char": 12668, "end_char": 12677, "source": "ner", "metadata": {"in_sentence": "JANANDINJ DEVI (Mwlhollwr, J.) 8·15\n\nA settled and we are no longer concerned with that matter."}}, {"text": "Gopinath", "label": "PETITIONER", "start_char": 13173, "end_char": 13181, "source": "ner", "metadata": {"in_sentence": "To that document, amongst other, the appellant, Gopinath and Kadma Kuar were parties.", "canonical_name": "Gopinathhad"}}, {"text": "E Kanhaiyalal", "label": "OTHER_PERSON", "start_char": 14073, "end_char": 14086, "source": "ner", "metadata": {"in_sentence": "On behalf of the contesting defendant it was urged in the D courts below that the transaction amounted to surrender of her estate 'by Kadma Kuar and alternatively that it was a family settlement to which the plaintiff was one of the parties and, therefore, he is estopped from challenging the validity of the compromise, particulady so as he has taken benefit thereunder and also because in view of the compromise Gopinath had discharged the debts of E Kanhaiyalal which at law were recoverable from the property in question.", "canonical_name": "Kanhaiyafal.at"}}, {"text": "Allahabad", "label": "GPE", "start_char": 14591, "end_char": 14600, "source": "ner", "metadata": {"in_sentence": "At this stage it is desirab.le to point out that out of the pro- F perties described in List A of the Schedule to the plaint the plaintiff-appellant lays no claim to items 1 and 2 which are respectively described as properties at Hewett Road, Allahabad, and Goshain Tola, Allahabad nor to item 7(i) described as 8 anna share in a Zamindari village."}}, {"text": "S. P. Sinha", "label": "PETITIONER", "start_char": 14749, "end_char": 14760, "source": "ner", "metadata": {"in_sentence": "Such a concession was made before this Court by Mr. S. P. Sinha, counsel for the appellant, when the matter was 6 argued before this Court on April 14, 1964, when the hearing was adjourned to enable the parties to arrive at a settlement.", "canonical_name": "S. P. Si[lha"}}, {"text": "April 14, 1964", "label": "DATE", "start_char": 14839, "end_char": 14853, "source": "ner", "metadata": {"in_sentence": "Such a concession was made before this Court by Mr. S. P. Sinha, counsel for the appellant, when the matter was 6 argued before this Court on April 14, 1964, when the hearing was adjourned to enable the parties to arrive at a settlement."}}, {"text": ".March 8 and 9, 1965", "label": "DATE", "start_char": 15014, "end_char": 15034, "source": "ner", "metadata": {"in_sentence": "No settlement was arrived at and the matter was re-argued before this Court on .March 8 and 9, 1965."}}, {"text": "Sinha", "label": "OTHER_PERSON", "start_char": 15040, "end_char": 15045, "source": "ner", "metadata": {"in_sentence": "Mr. Sinha has not withdrawn the concession made by him on the earlier occasion."}}, {"text": "Niren De", "label": "LAWYER", "start_char": 15166, "end_char": 15174, "source": "ner", "metadata": {"in_sentence": "We may also B make a mention of the fact that Mr. Niren De, the Additional Solicitor General has not argued that Ex.", "canonical_name": "Niren De"}}, {"text": "Ram Charan Das", "label": "PETITIONER", "start_char": 16536, "end_char": 16550, "source": "ner", "metadata": {"in_sentence": "In our opinion the document on its face appears to effect a compromise of the cpnfiicting claims of 0 Gopinath on the one hand and the present plaintiff Ram Charan Das and his brothers on the other to the .estate of Kanhaiyalal.", "canonical_name": "Ram Charan Das"}}, {"text": "M. Kanhaya Lal", "label": "OTHER_PERSON", "start_char": 16896, "end_char": 16910, "source": "ner", "metadata": {"in_sentence": "In cl.(l) of the document it is stated \"That the first party renounces all her claims to the estate of D her son M. Kanhaya Lal deceased according to the provisions of this deed in favour of the Second and Third party out of which the second party shall be the absolute owner and possessor of the properties detailed in List \"A\" annexed hereto; and the third party shall be the absolute owner and possessors of the properties detailed in the List \"B\" annexed hereto\"."}}, {"text": "Kadma", "label": "JUDGE", "start_char": 17341, "end_char": 17346, "source": "ner", "metadata": {"in_sentence": "These recitals, taken in con- E j mction with the surrounding circumstances indicate that Kadma\n\n\"uar purported to recognise thereby the rights of these parties to her son's properties though earlier she disputed them.", "canonical_name": "Kadrna -Kuar"}}, {"text": "Arra'll Kalan", "label": "OTHER_PERSON", "start_char": 17553, "end_char": 17566, "source": "ner", "metadata": {"in_sentence": "Similarly the\n\nrecils \"that the first party shall remain in de facto management of Arra'll Kalan property for her life without any interference from the second or the third party to whom she shall in no case be liable F to render any accounts and that after her death the second party or his heilrs representatives, assigns or transferees and Babu Sehat Bahadur Advocate Allahabad as representing the third party or their heirs, representatives, assigns or transferees shall manage and enter into possession of the said village Arrah Kalan jointly\", indicate that the 2nd and 3rd party were disputing and interfering Q with the right cf Kadma Kuar to the management of one of the properties but ultima!.:!;"}}, {"text": "Babu Sehat Bahadur", "label": "OTHER_PERSON", "start_char": 17813, "end_char": 17831, "source": "ner", "metadata": {"in_sentence": "Similarly the\n\nrecils \"that the first party shall remain in de facto management of Arra'll Kalan property for her life without any interference from the second or the third party to whom she shall in no case be liable F to render any accounts and that after her death the second party or his heilrs representatives, assigns or transferees and Babu Sehat Bahadur Advocate Allahabad as representing the third party or their heirs, representatives, assigns or transferees shall manage and enter into possession of the said village Arrah Kalan jointly\", indicate that the 2nd and 3rd party were disputing and interfering Q with the right cf Kadma Kuar to the management of one of the properties but ultima!.:!;"}}, {"text": "Arrah Kalan", "label": "OTHER_PERSON", "start_char": 17998, "end_char": 18009, "source": "ner", "metadata": {"in_sentence": "Similarly the\n\nrecils \"that the first party shall remain in de facto management of Arra'll Kalan property for her life without any interference from the second or the third party to whom she shall in no case be liable F to render any accounts and that after her death the second party or his heilrs representatives, assigns or transferees and Babu Sehat Bahadur Advocate Allahabad as representing the third party or their heirs, representatives, assigns or transferees shall manage and enter into possession of the said village Arrah Kalan jointly\", indicate that the 2nd and 3rd party were disputing and interfering Q with the right cf Kadma Kuar to the management of one of the properties but ultima!.:!;"}}, {"text": "Hanuman Prasad", "label": "LAWYER", "start_char": 18431, "end_char": 18445, "source": "ner", "metadata": {"in_sentence": "Further, as w,; J.i;:·;~ already pointed out, three suits had been instituted in the year 1932 concerning this very property, one by Gopinath and the other two by the plaintiff and his brother Hanuman Prasad.", "canonical_name": "Hanuman G Prasad"}}, {"text": "Ram Charan.Das", "label": "PETITIONER", "start_char": 18530, "end_char": 18544, "source": "ner", "metadata": {"in_sentence": "The plaintiff appellant Ram Charan.", "canonical_name": "Ram Charan Das"}}, {"text": "Rill CHARAN DASS", "label": "JUDGE", "start_char": 18941, "end_char": 18957, "source": "ner", "metadata": {"in_sentence": "This document further makes express mention of the two suits which were\n\nRill CHARAN DASS u. GIRJANANDINI Dl:VI (; lfudlwlkar, J.) ~7\n\nA_ companion suits, suit No."}}, {"text": "lfudlwlkar", "label": "JUDGE", "start_char": 18983, "end_char": 18993, "source": "ner", "metadata": {"in_sentence": "This document further makes express mention of the two suits which were\n\nRill CHARAN DASS u. GIRJANANDINI Dl:VI (; lfudlwlkar, J.) ~7\n\nA_ companion suits, suit No."}}, {"text": "Hanumim Prasad", "label": "OTHER_PERSON", "start_char": 19228, "end_char": 19242, "source": "ner", "metadata": {"in_sentence": "By compromising those two suits the plaintiff and h; s brother Hanumim Prasad withdrew their challenge to the claim put forward by Gopinath to the estate of Kanha1yalal."}}, {"text": "Kanha1yalal", "label": "OTHER_PERSON", "start_char": 19322, "end_char": 19333, "source": "ner", "metadata": {"in_sentence": "By compromising those two suits the plaintiff and h; s brother Hanumim Prasad withdrew their challenge to the claim put forward by Gopinath to the estate of Kanha1yalal.", "canonical_name": "Kanhaiyafal.at"}}, {"text": "Babu Gopi Nath", "label": "OTHER_PERSON", "start_char": 20220, "end_char": 20234, "source": "ner", "metadata": {"in_sentence": "The D recital runs thus:\n\n\"That in pursuance of and for the purpose of this deed the First and the Third Party do admit and recognise Babu Gopi Nath, the Second party to be the son of Musammat Peari Bibi the own sister of the late Munshi Kanhaya Lal and the daughter of Musammat Kadma Kuar the First Party; and s'milarly for the purposes of and in pursuance of this deed, the First and the Second party admit and recognise the Third party as the sons of Dewan Madan Gopal a greut-grandson of M. Lalji, the greatgrand father of M-Kanaya Lal as per pedigree set up by them in suits Nos."}}, {"text": "Musammat Peari Bibi", "label": "OTHER_PERSON", "start_char": 20270, "end_char": 20289, "source": "ner", "metadata": {"in_sentence": "The D recital runs thus:\n\n\"That in pursuance of and for the purpose of this deed the First and the Third Party do admit and recognise Babu Gopi Nath, the Second party to be the son of Musammat Peari Bibi the own sister of the late Munshi Kanhaya Lal and the daughter of Musammat Kadma Kuar the First Party; and s'milarly for the purposes of and in pursuance of this deed, the First and the Second party admit and recognise the Third party as the sons of Dewan Madan Gopal a greut-grandson of M. Lalji, the greatgrand father of M-Kanaya Lal as per pedigree set up by them in suits Nos."}}, {"text": "Munshi Kanhaya Lal", "label": "OTHER_PERSON", "start_char": 20317, "end_char": 20335, "source": "ner", "metadata": {"in_sentence": "The D recital runs thus:\n\n\"That in pursuance of and for the purpose of this deed the First and the Third Party do admit and recognise Babu Gopi Nath, the Second party to be the son of Musammat Peari Bibi the own sister of the late Munshi Kanhaya Lal and the daughter of Musammat Kadma Kuar the First Party; and s'milarly for the purposes of and in pursuance of this deed, the First and the Second party admit and recognise the Third party as the sons of Dewan Madan Gopal a greut-grandson of M. Lalji, the greatgrand father of M-Kanaya Lal as per pedigree set up by them in suits Nos."}}, {"text": "Musammat Kadma Kuar", "label": "OTHER_PERSON", "start_char": 20356, "end_char": 20375, "source": "ner", "metadata": {"in_sentence": "The D recital runs thus:\n\n\"That in pursuance of and for the purpose of this deed the First and the Third Party do admit and recognise Babu Gopi Nath, the Second party to be the son of Musammat Peari Bibi the own sister of the late Munshi Kanhaya Lal and the daughter of Musammat Kadma Kuar the First Party; and s'milarly for the purposes of and in pursuance of this deed, the First and the Second party admit and recognise the Third party as the sons of Dewan Madan Gopal a greut-grandson of M. Lalji, the greatgrand father of M-Kanaya Lal as per pedigree set up by them in suits Nos."}}, {"text": "Dewan Madan Gopal", "label": "OTHER_PERSON", "start_char": 20540, "end_char": 20557, "source": "ner", "metadata": {"in_sentence": "The D recital runs thus:\n\n\"That in pursuance of and for the purpose of this deed the First and the Third Party do admit and recognise Babu Gopi Nath, the Second party to be the son of Musammat Peari Bibi the own sister of the late Munshi Kanhaya Lal and the daughter of Musammat Kadma Kuar the First Party; and s'milarly for the purposes of and in pursuance of this deed, the First and the Second party admit and recognise the Third party as the sons of Dewan Madan Gopal a greut-grandson of M. Lalji, the greatgrand father of M-Kanaya Lal as per pedigree set up by them in suits Nos.", "canonical_name": "Diwan Madan Gop31"}}, {"text": "M. Lalji", "label": "OTHER_PERSON", "start_char": 20578, "end_char": 20586, "source": "ner", "metadata": {"in_sentence": "The D recital runs thus:\n\n\"That in pursuance of and for the purpose of this deed the First and the Third Party do admit and recognise Babu Gopi Nath, the Second party to be the son of Musammat Peari Bibi the own sister of the late Munshi Kanhaya Lal and the daughter of Musammat Kadma Kuar the First Party; and s'milarly for the purposes of and in pursuance of this deed, the First and the Second party admit and recognise the Third party as the sons of Dewan Madan Gopal a greut-grandson of M. Lalji, the greatgrand father of M-Kanaya Lal as per pedigree set up by them in suits Nos."}}, {"text": "M-Kanaya Lal", "label": "OTHER_PERSON", "start_char": 20613, "end_char": 20625, "source": "ner", "metadata": {"in_sentence": "The D recital runs thus:\n\n\"That in pursuance of and for the purpose of this deed the First and the Third Party do admit and recognise Babu Gopi Nath, the Second party to be the son of Musammat Peari Bibi the own sister of the late Munshi Kanhaya Lal and the daughter of Musammat Kadma Kuar the First Party; and s'milarly for the purposes of and in pursuance of this deed, the First and the Second party admit and recognise the Third party as the sons of Dewan Madan Gopal a greut-grandson of M. Lalji, the greatgrand father of M-Kanaya Lal as per pedigree set up by them in suits Nos."}}, {"text": "Jowitt", "label": "OTHER_PERSON", "start_char": 23356, "end_char": 23362, "source": "ner", "metadata": {"in_sentence": "Now the expression \"recitals\" means, according to the Dictionary of English Law by Jowitt: \"Statements in a deed, agreement or other formal instrument, introduced to explain or lead up to the operative part B of the instrument.\""}}, {"text": "Akkagouda", "label": "OTHER_PERSON", "start_char": 28461, "end_char": 28470, "source": "ner", "metadata": {"in_sentence": "Their Lordships conclude that all the circumstances strongly point to the three documents being part and parcel of one transaction by which a disposition was made of Akkagouda's estate, such as was likely to prevent dis- O pules in the future and therefore in the best interests of all the parties."}}, {"text": "Annagouda", "label": "OTHER_PERSON", "start_char": 28676, "end_char": 28685, "source": "ner", "metadata": {"in_sentence": "The three deeds appear thus to be inseparably connected together and in that view Annagouda not only consented to the sale of Shivgouda and the gift to Basappa but these dispositions formed Parts of the same transaction by which he himself acquired D a part of the estate.\""}}, {"text": "Shivgouda", "label": "OTHER_PERSON", "start_char": 28720, "end_char": 28729, "source": "ner", "metadata": {"in_sentence": "The three deeds appear thus to be inseparably connected together and in that view Annagouda not only consented to the sale of Shivgouda and the gift to Basappa but these dispositions formed Parts of the same transaction by which he himself acquired D a part of the estate.\""}}, {"text": "Basappa", "label": "OTHER_PERSON", "start_char": 28746, "end_char": 28753, "source": "ner", "metadata": {"in_sentence": "The three deeds appear thus to be inseparably connected together and in that view Annagouda not only consented to the sale of Shivgouda and the gift to Basappa but these dispositions formed Parts of the same transaction by which he himself acquired D a part of the estate.\""}}, {"text": "F Kadma Kuar", "label": "OTHER_PERSON", "start_char": 29537, "end_char": 29549, "source": "ner", "metadata": {"in_sentence": "We have therefore no hesitation in holding that the plaintiff who has taken benefit under the transaction is not now entitled to turn round and say that that transaction was of a kind which F Kadma Kuar could not enter into and was therefore invalid."}}, {"text": "s. 115", "label": "PROVISION", "start_char": 29809, "end_char": 29815, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidenoe Act, 1872", "label": "STATUTE", "start_char": 29823, "end_char": 29848, "source": "regex", "metadata": {}}, {"text": "L.R. 64 I.A. 396", "label": "CASE_CITATION", "start_char": 30579, "end_char": 30595, "source": "regex", "metadata": {}}, {"text": "s. 37(a)", "label": "PROVISION", "start_char": 31298, "end_char": 31306, "source": "regex", "metadata": {"statute": null}}, {"text": "Court of Wards Act, 1912", "label": "STATUTE", "start_char": 31319, "end_char": 31343, "source": "regex", "metadata": {}}, {"text": "s. 37", "label": "PROVISION", "start_char": 32036, "end_char": 32041, "source": "regex", "metadata": {"linked_statute_text": "Court of Wards Act, 1912", "statute": "Court of Wards Act, 1912"}}, {"text": "Hiran Bibi", "label": "OTHER_PERSON", "start_char": 32841, "end_char": 32851, "source": "ner", "metadata": {"in_sentence": "Hiran Bibi's(') case in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties."}}, {"text": "L.R. 46 I.A. 72", "label": "CASE_CITATION", "start_char": 33480, "end_char": 33495, "source": "regex", "metadata": {}}, {"text": "s. 60", "label": "PROVISION", "start_char": 34346, "end_char": 34351, "source": "regex", "metadata": {"statute": null}}, {"text": "L. R. 46\n\nI.A. 72", "label": "CASE_CITATION", "start_char": 35641, "end_char": 35658, "source": "regex", "metadata": {}}, {"text": "s. 37(a)", "label": "PROVISION", "start_char": 36451, "end_char": 36459, "source": "regex", "metadata": {"statute": null}}, {"text": "Court of Wards Act", "label": "STATUTE", "start_char": 36472, "end_char": 36490, "source": "regex", "metadata": {}}]}
{"document_id": "1965_3_86_90_EN", "year": 1965, "text": "SAHOO\n\nSTATE OF U.P.\n\nFebruary 16, 1965\n\n[K. SUBBA RAO, J. C. SHAH AND ~. S. BACHAWAT, Jf}\n\nConfession-Accused mutte, ring self-indriminating statement to himself-Whether amounts to confession-Communication to another . ; person whether necessary.\n\nThe Sessions Judge in convicting the appellant of murder took into account an extra-judicial confession alleged to have been made by .him when shortly after the murder he was muttering to hi,,, self that he had finished the deceased. The High Court confirmed the conviction. In appeal before this Court it was contended that that the muttering of the accused did not amount to a confession as it \\Vas implic:t in the concept Of confession whether judicial or extrajudicial that it should he communicated to another. A man can~ not confess to himself; he can only confess to another.\n\nHELD: (i) Sections 24 to 30 of the Evidence Act deal with the .admissibility of confession\"' but the expression 'confession' is not defined. Shortly stated a confession is a statement made by an accus- ed admitting his guilt. (88 E] Pakala Narayana v. R. L. R. 66 I.A 66, referred to.\n\n(ii) It is not a necessary ingredient of the term confession that it shall be communicated to another. The dictionary meaning of the term does not Warrantany such extension, nor the reason of the rule underlying the doctrine of admission or confession demands it. The probative nature of an admission or confession does not depend on its communication to anotMr though just like any other piece of evidence can be admitted in evidence only on proof. The following illustration pertaining to a written confession brings out the idea: A kills B; enters in his diary that he had killed him, puts it in his drawer and absconds. When he places his act on record he does not communicate to another; indeed he does not have any intention of communicating it to a third party. Even so at the trial the said statement of the accused can certainly be proved as a confession made by him. If that be so in the case of a statement in writing, there cannot be any difference in principle in the case of an oral statement.\n\n(88 H~89 C] 8hogilal Chunilal Pandya v. State of Bombay, . r19591 Supp. 1 S.C.R. 310, relied on.\n\n(iii) But there 1s a clear distinction between the admissibility of ; an item of evidence and the weight to be attached to it. A confessional soliloquy is a direct piece of evidence. Generally such soliloquies are mutterings of a confused mind. Before such evidence can be accepted it must be established by cogent evidence what were the exact words used by the accused. Even if so much was established prudence and justice demand that such evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of evidence. [90 B, DJ In the present case the confession along with the other evidence of circumstances was sufficient to prove the guilt of the appellant.\n\nCRIMINAL APPELLAT, E JURISDICTION: Criminal Appeal No. 248 of 1964.\n\nSAHoo v. STATE (Subba Rao, J.) 87\n\nA Appeal from the judgment and order dated September 16, 1964 of the Allahabad High Court in Criminal Appeal No. 348 of 1964 and capital sentenoe No. 26 of 1964.\n\nP. C. Khanna, for the appellant.\n\n0. P. Rana, for the respondent.\n\nThe Judgment of the Court was delivered by _ .\n\nSobba_ Rao, J. Sahoo, the appellant, is a resident of Pachperwa m the D1stnct of Gonda. He has two sons, Badri and Kirpa Shanker. He lost his wife years ago. His eldest son, Badri, married one Sunderpatti. Badri was employed in Lucknow, and his wife was residing with his father. It is said that Sunderpatti developed illicit intimacy with Sahoo; but there were incessant quarrels between them. On August 12, 1963, during one of those quarrels, Sunderpatti ran away to the house of one Mohammed Abdullah, a neighbour of theirs. The appellant brought her back, and after some wordy altercation between them they slept in the only room of their house. The only other inmate of the house was the appellant's second son, Kirpa Shanker, a lad of about 8 years. On the morning of August 13, 1963, Sunderpatti was found with serious in juries in the room of the house where she was sleeping and the appellant was not in the house. Sunderpatti was admitted in the Sadar Hospital, Gonda, at 5.25 p.m. on that day and she died on August 26, 1963 at 3 p.m. Sahoo was sent up for trial before the Court of Sessions, Gonda, on a charge under s. 302 of the Indian Penal Code.\n\nThe learned Sessions Judge, on a consideration of the entire evidence came to the conclusion that Sahoo killed Sunderpatti. On that finding, he convicted the accused under s. 302 of the Indian Penal Code and sentenced him to death. On appeal, a Division Bench of the High Court at Allahabad confirmed both the conviction and the sentence. Hence the appeal.\n\nExcept for an extra-judicial confession, the entire evidence in the case is circumstantial. Before we advert to the arguments advanced in the appeal it will be convenient to narrate the circumstances found by the High Court, which are as follows : (!) The accused had illicit connections with the deceased; (2) the deceased and the accused had some quarrel on the Janmashtami day in the evening and the deceased had to be persuaded through the influence of their neighbours, Mohammed Abdullah and his womenfolk, to go back to the house of the accused; (3) the deceased was seen in the company of the accused for the last time when she was alive; (4) during the fateful night 3 persons, namely, the accused, the deceased and the accused's second son, Kirpa Shanker (P.W.\n\n17), slept in the room inside the house; (5) on the early morning of next day, P.W. 17 was asked by his father to go out to attend to calls of nature and when he came back to the varandah of the house he heard sme gurgling sound, and he saw his father going out of the house murmuring something; and (6) P. Ws. 9, 11, 13\n\nand 15 saw .the ac.cused going out of the house at about 6 a.m. on A\n\ntht day solilo9uymg that he had finished Sunderpatti and thereby finished the dally quarrels.\n\nThis Court in a series of decisions has reaffirmed the followmg well-settled rule of \"circumstantial evidence\". The circumstai:ces from which the conclusion of guilt is to be drawn should B be m the first instance fully established. \"All the facts so estab lished should be consistent only with the hypothesis of the guilt of the accused and the circumstances should be of a conclusive nature and tendency that they should be such as to exclude other hypotheses but the one proposed to be proved.\"\n\nBefore we consider whether the circumstances narrated above C would, stand the said rigorous test, we will at the outset deal with the content; on that the soliloquy of the accused admitting his guilt was not an extra-judi.cial confession as the Courts below held it to be. If it was an extra-judicial confession, it would really partake the character of direct evidence rather than that of circumstantial\n\nevlidence. It is argued that it is implicit in the concept of confes- D> sion, whether it is extra-judicial or judicial, that it shall be com municated to another. It is said that one cannot confess to himself: he can only confess to another. This raises an interesting point, which falls to be decided on a consideration of the relevant Provisions of the Evidence Act. Sections 24 to 30 of the Evidence Act deal with the admissib'.lity of confessions by accused persons in criminal cases. But the expression \"confession\" is not defined. The Judicial Committee in Pakala Narayana v. R.(') has defined the said expression thus : ! \"' \"A confession is a statement made by an accused: which\n\nmust either admit in tenns the offence, or at any rate ub- F stantially all the facts which constitute the offence.\"\n\nA scrutiny of the provisions of ss. 17 to 30 of the Evidence Act discloses, as one learned author puts it, that statement is a genu1, admission is the species and confession is the sub-species. Shortly stated, a confession is a statement made by an accused admitting his guilt. What does the expression \"statement\" mean?\n\nG The dictionary meaning of the word \"statement\" is \"the act of stating, reciting or presenting verbally or on paper.\" The term \"statement\", therefore, includes both oral and written statements.\n\nIs it also a necessary ingredient of the tenn that it shall be communicated to anoth.er? The dictionary meaning of the term. does not H warrant ariy such extension; nor the reason of the rule underlying the doctrine of admission or confession demands it. Admissions and confessions are exceptions to the hearsay rule. The Evidence Act places them in the category of relevant evidence, presumably on the gro'und that, as they are declarat'ons against the interest of the per- SOD making them, they are probably true. The probative value of\n\n(') J .. F .. 66 !.A. 6:1.\n\nSAHOO v. STATE (8ubb:i Rao, J'.)\n\nA an admission or a confession does not depend upon its communication to another, though, jusl like any other piece of evidence, it can be admitted in ev'dence only on proof. This proof in the cse of oral admission or confession can be offered only by witnesses who heard the admission or confession. as the case may be. The following illustration pertaining to a wr'tten confession brings out B the said idea: A kills B; enters in his diary that he had killed him. puts it in his drawer and absconds. When he places his act on record. he does not communicate to ano!her; indeed, he does not have any intention of communi.cating it to a third party. Even so, at tlie trial the said statement of the accused can certainly be proved as a confession made by him. If t'iat be so 'n the case of a statement in c writing, there cannot be any difference in principle in the case of an oral statement. Both mast stand on the same footing. This aspect of the doctrine of confession received some treatment from wellknown authors on ev'dence. like Taylor, Best and Phipson. In \"A Treatise on the Law of Evidence\" by Taylor, 11th Edn., Vol. I, the\n\nfollowing statement appears at p. 596:\n\n\"What the accused has been overheard muttering to himself, or saying to his wife or to any other person in confidence, will be receivable in evidence.\" In \"The Principles of the Law of Evidence\" by W. M. Best, 12th Edn., at p. 454, it is stated much to the same effect thus:\n\n\"Words addressed to others, and writing, are no doubt the most usual forms; but words uttered in soliloquy seem equally receivable.\" We also find the following passage in \"Phipson on Evidence\", 7th Edn., at p. 262:\n\n.1 \"A statement which the prisoner had been overheard muttering to himself, if otherwise than in his sleep, is admissible against him, if independently proved.\" These passages establish that communication to another is not a necessary ingredient of the concept of \"confession\". In this context a decision of this Court in Bhogila/ Chunilal Pandya v The State of 'G b Born ay(') may usefully be referred to. There the question was whether a former statement made by a witness within the meaning of s. 157 of the Evidence Act should have been communicated to another before it coUid be used to corroborate the testimony of another witness. This Court, after considering the relevant provisions of the Evidence Act and the case-law on the subject came to the H conclusion that the word \"statement\" used in s. 157 meant only\n\n\"something that is stated\" and the element of communication was not necessary before \"something that is stated\" became a statement under that section. If, as we have said, statement is the genus and confession is only a sub-species of that genus, we do not see any reason why the statement implied in the conression should b~ given\n\n(1) [1959) Supp. I S.C.R. 310.\n\na different meaning. We, therefore, hold that a statement whether A communicated or not, admitting guilt is a confession of ilt.\n\n. But, there is a cler distinction between the admissibility of an evidence and the weight to be attached to it. A confessional soliloquy is a direct piece of evidence. It may be an expression of conflict of emotion; a conscious effort to stifle the pricked conscience; B an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime. The tone may be soft and low; the words may be confused; they may be capable of conflicting interpretations depending on witnesses, whether they are biased or honest, intelligent or ignorant, imaginative or prosaic, as the case may be. 'Generally they are mutterings of a c confused mind. Before such evidence can be accepted, it must be established by cogent evidence what were the exact words used by the accused. Even if so much was established, prudence and justice demand that such evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of evidence.\n\nThe circumstances found by the High Court, which we have D stated earlier, lead to the only conclusion that the accused must have committed the murder. No other reasonable hypothesis was or could be suggested.\n\nFurther, in this case, as we have noticed earlier, P.W.s II, 13 and 15 deposed that they clearly heard the accused say when he E opened the door of the house and came out at 6 O'clock in the morning of the fateful day that he had \"finished Sunderpatti, his daughter-in-law, and thereby finished the daily quarrels\". We hold that this extra-judicial confession is relevant evidence:. it certainly corroborates the circumstantial evidence adduced in the case.\n\nI' In the result, we agree with the conclusion arrived at by the High Court both in regard to the conviction and the sentence. The appeal fails and is dismissed.\n\nAppeal dismissed.", "total_entities": 37, "entities": [{"text": "SAHOO\n\nSTATE OF U", "label": "RESPONDENT", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P", "offset_not_found": false}}, {"text": "February 16, 1965", "label": "DATE", "start_char": 22, "end_char": 39, "source": "ner", "metadata": {"in_sentence": "SAHOO\n\nSTATE OF U.P.\n\nFebruary 16, 1965\n\n[K. SUBBA RAO, J. C. SHAH AND ~. S. BACHAWAT, Jf}\n\nConfession-Accused mutte, ring self-indriminating statement to himself-Whether amounts to confession-Communication to another . ;"}}, {"text": "K. SUBBA RAO, J.", "label": "JUDGE", "start_char": 42, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 59, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. BACHAWAT", "label": "JUDGE", "start_char": 74, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Sections 24 to 30", "label": "PROVISION", "start_char": 843, "end_char": 860, "source": "regex", "metadata": {"statute": null}}, {"text": "L. R. 66 I.A 66", "label": "CASE_CITATION", "start_char": 1088, "end_char": 1103, "source": "regex", "metadata": {}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 3098, "end_char": 3118, "source": "ner", "metadata": {"in_sentence": "SAHoo v. STATE (Subba Rao, J.) 87\n\nA Appeal from the judgment and order dated September 16, 1964 of the Allahabad High Court in Criminal Appeal No."}}, {"text": "P. C. Khanna", "label": "LAWYER", "start_char": 3192, "end_char": 3204, "source": "ner", "metadata": {"in_sentence": "P. C. Khanna, for the appellant."}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 3229, "end_char": 3236, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the respondent."}}, {"text": "Sobba_ Rao", "label": "JUDGE", "start_char": 3307, "end_char": 3317, "source": "ner", "metadata": {"in_sentence": "Sobba_ Rao, J. Sahoo, the appellant, is a resident of Pachperwa m the D1stnct of Gonda."}}, {"text": "Badri", "label": "OTHER_PERSON", "start_char": 3412, "end_char": 3417, "source": "ner", "metadata": {"in_sentence": "He has two sons, Badri and Kirpa Shanker."}}, {"text": "Kirpa Shanker", "label": "OTHER_PERSON", "start_char": 3422, "end_char": 3435, "source": "ner", "metadata": {"in_sentence": "He has two sons, Badri and Kirpa Shanker."}}, {"text": "Sunderpatti", "label": "OTHER_PERSON", "start_char": 3500, "end_char": 3511, "source": "ner", "metadata": {"in_sentence": "His eldest son, Badri, married one Sunderpatti."}}, {"text": "Lucknow", "label": "GPE", "start_char": 3535, "end_char": 3542, "source": "ner", "metadata": {"in_sentence": "Badri was employed in Lucknow, and his wife was residing with his father."}}, {"text": "Sahoo", "label": "PETITIONER", "start_char": 3647, "end_char": 3652, "source": "ner", "metadata": {"in_sentence": "It is said that Sunderpatti developed illicit intimacy with Sahoo; but there were incessant quarrels between them.", "canonical_name": "SAHOO"}}, {"text": "August 12, 1963", "label": "DATE", "start_char": 3705, "end_char": 3720, "source": "ner", "metadata": {"in_sentence": "On August 12, 1963, during one of those quarrels, Sunderpatti ran away to the house of one Mohammed Abdullah, a neighbour of theirs."}}, {"text": "Mohammed Abdullah", "label": "OTHER_PERSON", "start_char": 3793, "end_char": 3810, "source": "ner", "metadata": {"in_sentence": "On August 12, 1963, during one of those quarrels, Sunderpatti ran away to the house of one Mohammed Abdullah, a neighbour of theirs."}}, {"text": "August 13, 1963", "label": "DATE", "start_char": 4081, "end_char": 4096, "source": "ner", "metadata": {"in_sentence": "On the morning of August 13, 1963, Sunderpatti was found with serious in juries in the room of the house where she was sleeping and the appellant was not in the house."}}, {"text": "Sadar Hospital, Gonda", "label": "ORG", "start_char": 4263, "end_char": 4284, "source": "ner", "metadata": {"in_sentence": "Sunderpatti was admitted in the Sadar Hospital, Gonda, at 5.25 p.m. on that day and she died on August 26, 1963 at 3 p.m. Sahoo was sent up for trial before the Court of Sessions, Gonda, on a charge under s. 302 of the Indian Penal Code."}}, {"text": "August 26, 1963", "label": "DATE", "start_char": 4327, "end_char": 4342, "source": "ner", "metadata": {"in_sentence": "Sunderpatti was admitted in the Sadar Hospital, Gonda, at 5.25 p.m. on that day and she died on August 26, 1963 at 3 p.m. Sahoo was sent up for trial before the Court of Sessions, Gonda, on a charge under s. 302 of the Indian Penal Code."}}, {"text": "Court of Sessions, Gonda", "label": "COURT", "start_char": 4392, "end_char": 4416, "source": "ner", "metadata": {"in_sentence": "Sunderpatti was admitted in the Sadar Hospital, Gonda, at 5.25 p.m. on that day and she died on August 26, 1963 at 3 p.m. Sahoo was sent up for trial before the Court of Sessions, Gonda, on a charge under s. 302 of the Indian Penal Code."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 4436, "end_char": 4442, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 4450, "end_char": 4467, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 302", "label": "PROVISION", "start_char": 4642, "end_char": 4648, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 4656, "end_char": 4673, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "High Court at Allahabad", "label": "COURT", "start_char": 4737, "end_char": 4760, "source": "ner", "metadata": {"in_sentence": "On appeal, a Division Bench of the High Court at Allahabad confirmed both the conviction and the sentence."}}, {"text": "Kirpa Shanker", "label": "WITNESS", "start_char": 5578, "end_char": 5591, "source": "ner", "metadata": {"in_sentence": "The accused had illicit connections with the deceased; (2) the deceased and the accused had some quarrel on the Janmashtami day in the evening and the deceased had to be persuaded through the influence of their neighbours, Mohammed Abdullah and his womenfolk, to go back to the house of the accused; (3) the deceased was seen in the company of the accused for the last time when she was alive; (4) during the fateful night 3 persons, namely, the accused, the deceased and the accused's second son, Kirpa Shanker (P.W.\n\n17), slept in the room inside the house; (5) on the early morning of next day, P.W. 17 was asked by his father to go out to attend to calls of nature and when he came back to the varandah of the house he heard sme gurgling sound, and he saw his father going out of the house murmuring something; and (6) P. Ws."}}, {"text": "Provisions of the Evidence Act", "label": "STATUTE", "start_char": 7330, "end_char": 7360, "source": "regex", "metadata": {}}, {"text": "Sections 24 to 30", "label": "PROVISION", "start_char": 7362, "end_char": 7379, "source": "regex", "metadata": {"linked_statute_text": "Provisions of the Evidence Act", "statute": "Provisions of the Evidence Act"}}, {"text": "ss. 17 to 30", "label": "PROVISION", "start_char": 7831, "end_char": 7843, "source": "regex", "metadata": {"linked_statute_text": "Provisions of the Evidence Act", "statute": "Provisions of the Evidence Act"}}, {"text": "Taylor", "label": "OTHER_PERSON", "start_char": 9957, "end_char": 9963, "source": "ner", "metadata": {"in_sentence": "like Taylor, Best and Phipson."}}, {"text": "Best", "label": "OTHER_PERSON", "start_char": 9965, "end_char": 9969, "source": "ner", "metadata": {"in_sentence": "like Taylor, Best and Phipson."}}, {"text": "Phipson", "label": "OTHER_PERSON", "start_char": 9974, "end_char": 9981, "source": "ner", "metadata": {"in_sentence": "like Taylor, Best and Phipson."}}, {"text": "W. M. Best", "label": "JUDGE", "start_char": 10295, "end_char": 10305, "source": "ner", "metadata": {"in_sentence": "In \"The Principles of the Law of Evidence\" by W. M. Best, 12th Edn.,"}}, {"text": "s. 157", "label": "PROVISION", "start_char": 11086, "end_char": 11092, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 157", "label": "PROVISION", "start_char": 11392, "end_char": 11398, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_91_102_EN", "year": 1965, "text": "HUKUMCHAND GULABCHAND JAIN\n\nFULCHAND LAKHMICHAND JAIN AND OTHERS\n\nFebruary 16, 1965\n\n!) J.\n\n(K. SUBBA RAO, RAGHUBAR DAYAL AND R. S. BACHAWAT, JJ.] Public Trusts-Trustee-Liability to pay interest on trust funds- Rule of damdupat-Applicability. ·\n\nThe respondents who were interested in a public temple filed a suit against the appellant who was looking after the affairs of the temple. They prayed for his removal from possession of the trust properties, for the rendering by him of true and faithful accounts and for the framing of a scheme. The trial court held that the appellant was liable to render accounts. Having ascertained the amount of principal, it determined the interest payable at an amount equal to that of the principal on the basis of the rule of damdupat. The respondents appealed to the High Court and urged that the rule of damdupat should not have been applied and that compound interest should have been charged against the appellant. The High Court held that the appellant had used the trust moneys in his business and therefore agreed with the contention of the respondents and remanded the case to the trial court for ascertaining the amount due to the temple.\n\nIn the appeal to the Supreme Court, it was contended that (i} there were no grounds for making the appellant liable to pay dompound interest, and (ii) even if there was liability to pay any interest, it was only for paying simple foterest and that the rule of damdupat should be applied.\n\nHELD: (i) It had not been proved that the trust funds had been used in the appellant's business and therefore the appellant was not liable to pay compound interest on the balance of the trust funds with him. f96 Gl\n\n(ii) In the absence of statutes during the period of suit dealing with public charitable trusts making a trustee liable to pay interest, interest could be charged only on equitable grounds. One such circumstance is, when the Court considers that the trustee ought to have received interest, as when he retains trust money in his hands uninvested. Since the accounts, in the instant case, show that the oppellant had retained the principal amount uninvested for over twenty years he would be liable to pay simple interest at the rate of 4 per cent per annum. Even though the interest calculated at that rate exceeded the principal, that entire interest would have to be paid, because, the rule of damdupat would not apply. The principle of damdupat was evolved both as an inducement to the debtors to pay the entire principal and interest at one and the same time in order to save interest in excess of the principal, and as a warning to the creditor to take effective steps for realising the debt from the borrower within a reasonable time, so that, there may not be accumulation of interest in excess of the principal amount. But that rule applies only to cases where a loan is advanced. Though a trustee Who had custody of trust funds, has a pecuniary liabiliy to make oo? those funds if he has used them and may, on the baSls of such a hab1lity be said to be a debtor of the trust, yet he, as an individual, is not' a borrower of the funds from the trust and cannot be said to have taken a loan from himself as a trustee in charge of the trust funds. [96 H; 97 E-H; 99 D; E; 101 E-F, HJ\n\nSharp v. Jackson, (1899) A. C. 419 and Lake, in re Dye>r Ex Parte, A (1901)1 K.B. 710, referred to.\n\nOVIL APPELLATE JURISDICTIOl'I: Civil Appeal No. 216 of 1962.\n\nAppeal from the judgment and decree dated September 15, 1959 of the Bombay High Court in First Appeal No. 600 of 1955 B from Original Decree.\n\nA. V. Viswanatha Satri, Rameshwar Nath, S. N. Andley and P. L. Vohra, for the appellant. S. N. Pershad, M. II. Chhatrapati, J. B. Dadachanji, 0. C.\n\nMathur and Ravinder Narain, for respondents Nos. 1 and 2.\n\nK. L. Hathi and R. H. Dhebar, for respondent No. 3.\n\nThe Judgment of the Court was delivered by\n\nRaghubar Dayal, J. There is a temple known as Shri Chandraprabhu Khandelwal Jain Tempie at Dhulia. Gulabchand Hiralal, father of appellant Hukumchand Gulabchand Jain, a leading member of the Khandelwal Jain Community a( Dhulia, looked after D the temple for over 40 years till his death sometime in 1950. The appellant looked after it after his father's death. Two members of the community interested in the temple, held to be a public temple, instituted the suit against the appellant and the Charity Commissioner, Bombay, praying for the removal of the appellant E from possession of the trust properties, for the rendering of true .and faithful accounts of all the assets and income of the trust property and for the framing of the scheme for the administration of the trust. It was alleged in the pla; nt that the appellant's father was maintaining all accounts of income and expenditure concerning the temple. and that the funds of the temple wer~ many times advanced F at interest and that the temple had come to hold large properties, movable and immovable. It was further alleged that the temple had a large income from offerings, house-rent etc., but the appellant and his deceased father had not been ma; ntainingthe accounts properly and that the funds of the temple were being advanced at interest, though no such income was shown as received recently G by the appellant.\n\nThe appellant, in his written statement, denied that the amount was so advanced at interest as alleged by the pla; ntilis and stated that his father had been keeping a ledger in the name of the temple in the accounts in which its income and expenditure had been duly entered since over 40 years and that the appellant himself had kept R separate account books for the temple since October 30; 1951. He denied that any income recently received had not been shown in the accounts.\n\nThe trial Court held that the appellant had committed minor irregularities in the maintenance of the accounts, that he was liable to render accounts and that the Commissioner was to ascertain the\n\nHl'KUMCHAND v. FULCHAND (Dayal, J.) D3\n\nA amount due from the appellant on taking the accounts. It definitely held it not established that income, if any, derived by way of interest on loans advanced out of the funds of the temple had not been credited to the account of the temple and !\\lat no instance of fraudulent or dishonest misappropriation of temple funds on the part of defendant No. I or his father had been establ; shed. It found B that the meeting of the community had passed a resolution on August 22, 1958, by an overwhelming majority, sanctioning the accounts submitted by the appellant and that only two persons who opposed against the resolution were the two plaintiffs of the suit. c The Commissioner found that on the date of the institution of the suit, i.e. on February 17, 1954, Rs. 10,088-10-3 were due for principal and Rs. 16,853-6·0 were due for interest, from the appellant. The plaintiffs admitted the report to be correct but the appellant contended that under the rule of damdupat interest exceeding the amount of pr!ncipal could not be allowed. The D appellants contention was accepted and the trial Court passed a decree on April 23, 1955, for Rs. 20,177-4-6 against the appellant, with future interest at 6 per cent per annum .. We are not now concerned with the other items of the decree and therefore we make no reference to them.\n\nThe appellant deposited the amount d'Ue under the decree on E July 18, 1955. The plaintiffs appealed and claimed a larger amount on var!ous grounds, including the one that the principle of damdupat should not have been applied and that interest on the balarice of the trust fund should have been calculated and compound interest allowed in place of simple interest on the amount of the\n\nF trust fund in the hands of the defendant or his father.\n\nThe appellant filed a cross-objection against the allowing of interest on the balance of the tr'llst funds with h; s father and himself.\n\nThe High Court agreed with the plaintiffs that the principle of darndupat could not be applied in the circumstances of the case G and that compound interest should have been charged against the appellant. It therefore set aside the decree passed by the trial Court in so fa( as it determined the amount due to the temple and referred the case back to the trial Court for re-assessment of the amount due to the temple having due regard to the observations made in its judgment. On an application by the appellant, certi- H ficate under Art. 133(1) of the Constitution was granted.\n\nThe app, ellant has then filed th's appeal and questioned the correctness of the order of the High Court holding him liable to pay compound interest and holding that the principle of damdupat was not applicable in this case.\n\nThe High Court said in its judgment that it was the contention of the plaintiffs that the appellant's father and the appellant\n\nL/B(D)2SCI-8\n\nused the funds of the temple in their business and that they were A therefore liable to account on that footing. There was no such allegation in the plaint or in the memorandum of appeal to the High Court. The High Court referred to the khulasa submitted to the Commissioner by the plaintiffs and stated that it was specifically alleged therein that the amount was being used by the defendant and his father. in business. Support for such an allegation B was found in the statement Exhibit 24 of the appellant's father in\n\n1931. Reference was also made to the fact that the appellant had nowhere denied the .fact of the moneys of the temple being used for the purpose of the business and to the non-production of certain books of account by the appellant: His statement that they were not available was not accepted. The High Court recorded the C finding in this form (at p. 43 of the appeal record):\n\n\"Under these circumstances it would not be an unreasonable inference to draw that the amounts belonging to the temple were being utilised by Defendant No. 1 (the appellant) and before him by his father in their business.\" D Having come to this conclusion and to the view that the position of the appellant's father and the appellant vis-a-vis the temple funds was that of a trustee, the High Court Considered whether the plaintiffs could claim interest on equitable grounds and held that they could claim compound interest with yearly rests, as the money had been used in the business or had been so mixed up with their own E funds that it was impossible to say that they had not so used it.\n\nThe High Court did not apply the rule of damdupat as .the liability of the appellant was not founded on loans or on any contract.\n\nIt is contended for the appellant that there was neither an allegation nor evidence to the effect that the trust funds had been F used in his business by the appellant's father or the appellant and that therefore the appellant was not liable to pay compound interest on the trust funds in his hands or in the hands of his father.\n\nIt was further urged that if interest was payable by the appellant's father or the appellant on the balance of trust funds, it should be simple interest and the amount of interest could not be more than G the amount of principal due on the date of the institution of the suit on the principle of damdupat.\n\nIt has not been established in this case that the trust funds with the appeliant or his father were used in their. trade or business.\n\nWe have already referred to the finding of the High Court in this H respect. It is a very halting finding. The High Court has not definitely held it proved that the funds were used in the business. We say so. as the High Court has said (at p. 46 of the appeal record):\n\n\"Since we are of the view that the defendant No. I and his father have used the monies of the temple in their business or have so mixed it up with their own funds that it is impossible to say that they have not so used it .... \"\n\nHUKUlllCIUND V. FULCHAND (DJy3/, J.) 95\n\nA Th's is not a clear-cut definite finding that the funds had been used in business or trade. The earlier finding noted at p. 43 of the appeal record and quoted by us earlier, loses its force in view of what has been said later. There is no evidence about such use of the money. There was no such allegation in the plaint.\n\nB It was said in the khu/asa dated December 22, 1954 and included in the Additional Report of the Commissioner of even date:\n\n\"Because the amount that was received by the defendant in respect of the temple could be utilised by the defendant in his business he used to pay interest thereon at the rate of annas 8.\"\n\nThis too, is not, as stated by the High Court, a specific allegatien that the amount was being used in business.\n\nThe plaint did not even say that the amount had been always D advanced on loan. What it said in para 1 is that the funds of the temple were many times advanced at interest and that no income from interest recently received had been shown in the accoUhts. No evidence has been led about the regular advance of the trust funds as oans. On the other hand, the accounts show only a few entries about the receipt of interest on the trust funtls.\n\nB The statement, Exhibit 24. made by the appellant's father on October 26, 1931, in Regular Suit No. 377 of 1931, was in a suit instituted by the appellant's father for the recovery of money advanced on a mortgage at compound rate of interest. Gulabchand, father of the appellant, stated .in examination-in-chief, that the 1 funds lent were of the temple, the transactions of the temple were in his name and that interest at compound rate had been agreed upon. In cross-examination he stated that he had with him funds of the temple and that he paid for them compound interest at 8 annas. This statement does not necessarily mean that the appellant's father had been crediting the temple accounts with com- G pound interest, at the rate of 8 annas, on the temple funds in his hands.\n\nG_ulabchand made another statement on January 12, 1950. It is exhibit 23. This statement was made in proceedings on Miscellaneous Application No. 110 of 1949. He stated:\n\nB \"Suit No. 377 of 1931 had been filed. In the same my deposition has been recorded. I have made a statement that the amount was of the temple. But I gave a statement to that effect as that amount has been set apart for the temple.\n\nI have given a statement that after the mortgage deed was executed and before the suit was filed, I set apart this amount for the temple and that the transaction of the temple was in my name. That statement is correct.\n\nSU!'H, J'1ME\n\nCOURT\n\nREPORTS\n\n(! 965) 3 S.C'.R.\n\nIf it is the amount of the Mandir, I credit it to the A Kha ta of the Mandir. I rlo not pay interest for the amount of the Mandir. As there was interest in the mortgage deed, I have taken interest at eight annas from Mangilal. I have made a statement that I have with me the amount of the temple and that I pay interest for it at eight annas.\" These statements. taken togclher, lead to the inference that B Gulabchand was not crediting interest on the temple funds in the accounts except when he received interest on the amounts lent and that this statement made in 1931 was in connection with the amount lent on a mortgage deed. He ch; irged compound interest from the mortgagor and therefore credited that interest in the accounts. Jt is significant to note that the four entries about interest C were for the years J 927 to I 93 I when Suit No. 377 of I 93 I was filed. The fact that no interest appears to have been credited after 193 I bears out the inference we derive from the statementsof Gulabchand.\n\nThere is another matter which throws light on this question and D tends to support our conclusion. The report submitted by the Commissioner on November 29, 1954 shows that the balance at the beginning of samvat year 1996, corresponding to 1939-40, was Rs. 7,649-14-3. The amount credited during the year was Rs. 573-12-0 and the amount debited was Rs. 769-3-6. If the opening balance be ignored, there would be a deficit of Rs. 195-7-0 and E the accounts for the samvat year 1997 opened with a debit balance of Rs. 195-7-0. This shows that the opening balance of samvat year 1996, i.e. Rs. 7,649-14-3, had been taken out of the accounts. It appears that this amount was taken over to some Bhandara account and was credited again in the temple accounts for samvat year 2009, i.e., 1952-53, after being brought out from Bhandara P account. Such dealing with this amount does not appear to be consistent with its being used in business. ·\n\nIn view of the shaky finding of the High Court about the funds being used in business by the appellant's father or the appellant and in view of what we have said above, we hold that G it has not been proved that these funds had been used in business and that therefore the appellant is not liable to pay compound interest on the balance of the trust funds with his father or himself.\n\nWe may now consider whether the appellant is liable to pay simple interest on the balance of trust money with his father or himself.\n\nTwo questions arise for consideration and they are whether the trustee is liable to pay simple interest on the trust capital in his hands arid if he is so liable what rate of interest be charged from him in the present case. Interest can be . allowed on equitable grounds only as no statutes in force during the period in suit and dealing with public charitable trusts made the trustee liable to pay\n\nHUKUMCHAND v. FULCHAND (Du, yal, J.) 97\n\nA interest. The Indian Trusts Act does not apply to public or private religious or charitable endowments and therefore the provisions of s. 23 thereof cannot be used for charging interest from the appellant trustee. The Charitable and Religious Trusts Act has no provision which provides for charging the trustee with interest.\n\nReference may therefore be mad, e in this connection to what is stated in para 1691 of Halsbury's Laws of England, III Edition.\n\nVol. 38:\n\n\"Subject to this, or unless a trustee is expressly otherwise authorised or required under the terms of his trust, he must duly and promptly invest all capital trust money coming to his hands, and all income which cannot be immediately applied for the purposes of the trust; and he is liable for any loss which may result from its being improperly invested or being left uninvested for an unreasonable length of time, and for interest during the period of its being so left.\" This is so because the trustee has to conduct the affairs of the trust in the same manner as an ordinary prudent man of business would conduct his own affairs. In para 1812 are set out the circumstances in which a trustee, besides being required to account for the principal trust money, can also be charged with interest on it and one of the circumstances is when the Court considers that the trustee ought to have received interest. Such could be the case when the trustee, in breach of his duty, retains the trust money in his own hands uninvested or mixes it with his own money or property.\n\nIt appears from the Commissioner's report that the trustee in this case had over Rs. 10,000 in his hands from samvat year 1988 commencing from November 10, 1931, upto February 17, 1954, when this suit was instituted. The trustee kept such a large sum uninvested for a long time extending over 22 years. The accounts show that reasonably he could not have expected to require this amount for any current purpose of the trust during these years. He should have invested the amount. His failure to do so makes him G l'able to pay interest.\n\nIt appears from what is said in para 1814 of Halsbury's Volume 38 that where a trustee simply fails to invest trust money which he ought to have invested or there are no other special circumstances in the case, he is in general charged simple interest at the rate of R 4 per cent per annum. We consider it reasonable to charge interest at 4 per cent per annum in this case.\n\nWe have now therefore to decide what had been the amount of trust funds in the hands of the appellant's father at different times and what would be the amount due from the appellant on the date of the insfoution of the suit, both for principal amount of trust money and for accumulated interest with him. We do not\n\ncm:isider it desirable that the case be sent back to the trial Court A for these calculations, in the light of our finding, as this litigation has been pending for over 10 years and as the accounting is to be I done for a period commencing from November IO, 1931, from which date the accounts are available to the Court.\n\nThe Addit; onal Report of the Commissioner, dated Decem- B ber 22, 1954, shows that the amount of principal on February 17,\n\n1954, the date on which the suit was filed, was Rs. 10,088-10-3 and that the accumulated amount of interest due on that date was Rs. 16,85.3-6-0 at the. rate of 6. per cent per annum. The plaintiffsrespondents admitted this report to be correct. The defendant also admitted the correctness of the principal amount found due by the C Commiss'oner. He, in fact; did not even dispute that the amount of interest at 6 per cent per annum would be what has been found by the Commissioner. What he contended was that he was not liable to pay interest in excess of the amount of principal found due, in view of the rule of damdupat. In these circumstances, these figures can be accepted as correct.\n\nD When the Commissioner had submitted his first report on November 29, 1954, both the parties objected to the accounts prepared by him. The defendant had objected to the Commissioner's including a sum of Rs. 7 ,648-14-3 twice over in his accounts. This sum represents the balance at the clme of samvat year 1995 corresponding to 1938-39. It was not taken over in the accounts for E the samvat year 1996. The Commissioner, in preparing the account, took this amount into consideration without making up the accounts for the samvat year 1996. He found and noted in his accounts that the amount credited to the temple during the samvat year 2009 corresponding to 1952-53 was Rs. 9,978-5-3 and that this amount included a sum of Rs. 7 ,648-14-3 which had been brought 'II from the Bhandara account. He however did not consider this sum to be the sum which had been not included in the accounts of the temple from the samvat year 1996.\n\nThe learned District Judge agreed with the objection of the defendant and held that this amount had been included twice in G the Commissioner's accounts.\n\nThe respondel)ts did not d; spute the correctness of this finding in the High Court and therefore we do not consider it a sound contention that this sum of Rs. 7,648-14-3 be further added to the balance found due by the Commissioner.\n\nThe appellant stated that the statement of the balance in and submitted by him to the meeting on August 22, 1953 was amved at by adding an amount of Rs. 7,000 to the balance shown in the accounts as he had found a suin of Rs. 7 ,000 in a bag marked 'Dharrnadya' inside a safe. The High Court has not considered the statement of the defendant about so finding a sum of Rs. 7 ,000 reliable. It was not urged before the High Court, as has been urged\n\nH8KUMCHAND V. FllLCHf.ND (Dltyal, J.) 99\n\nA before us, that this sum of Rs. 7 ,000 be included in the amount of trust money in the hands of the appellant on the date of the institu tion of the suit. The High Court merely dealt with the complaint for the respondents that the Commissioner had not taken this sum into account for the purpose of computation of interest on funds in possession of the defendant. The High Court considered thia B complaint to be justified. We therefore do not accept the respond\n\nent's contention that Rs. 7 ,000 be added to the balance found due by the Commissioner and hold that the High Court was in error in ordering interest to be calculated on this amount as well.\n\nAccording to the report of the Commissioner, the amount of tl interest on the principal amount of trust money in the hands of the trustee worked out to Rs. 16,853-6-0 up to February 17, 1954 at 6 per cent annum. We have held that the interest be calculated at 4 per cent per annum. If follows that at this rate the amount of interest found due by the Commissioner would be requced to Rs. 11,235-9-4. The principal due on that date was Rs. 10,088-10-3.\n\nD The question now arises whether the amount of interest be limited to the amount of principal, on the basis of the principle of Damdupat, or not. The High Court has held that the principle of Damdu•\n\npat will not apply in this case. We agree with that opinion.\n\nThe rule of Damdupat applies to cases where a Joan is advanced. Th's is clear from Colebrooke's Digest on Hindu Law.\n\nPart I, Vol. I, of the Digest deals with Contracts. Book I of this Part deals with Loans and Payment. Section I of Chapter I of Book I deals with Loans in General and describes what may or may not be loaned by whom, to whom and in what form, with the rules for delivery and receipt. These matters are comprised under\n\nthe title 'loans deEvered (rinadana)', which means the complete delivery of a loan or debt, by whom, where and to whom made.\n\nChapter II deals with Interest and states at the commencement of Section I:\n\n\"Such interest, as may be taken without a breach of duty on the part of the creditor, is a rule (dherma) for delivery by the creditor. Or ... for it is the nature of a loan, that it should produce to the lender the principal sum advanced, and interest in addition thereto.\" The various Articles in this Section use the expressions 'creditor', 'fender', 'loan', 'principal', 'lent', 'borrowers' and thus make ii e: amply clear that it deals with interest on the amounts advanced by a cred; tor to a debtor. Section I deals with the rates of interest to be charged. Section II deals with Special Forms of Interest Para graph 53 thereof states:\n\n\"Interest on money, received at once, not year by year, month by month, or day by day, as it ought, must never be more than enough to double the debt, that is, more than the amount of the principal paid at the same time.\"\n\nSUPREME COUR'f\n\nREPORTS [1965] 3 s.c.R.\n\nThis is what is known by the rule of Damdupai and has been A rightly construed, as long ago as Ul63, by the Bombay High Court in Dlwndu Jagannath v. Narayan Ramchandra(/). Section III\n\ndeals with Interest Specially Authorized and Specially Prohibited.\n\nArticle II of th's Section deals with Limits of Interest. Paragraph 59 thereof states:\n\n\"The principal can only be doubled by length of time.\n\nB after which interest ceases.\" The limit of interest is different under other paragraphs for loans advanced in different circumstances .. P; iragraph 61 repeats what has been stated in paragraph 53 of Setion II and adds. a special rule to the effect: \"On grain, on fruit, on wool or hair, on beasts of burden, lent to be paid in the same kind of equal value, it must not be more than enough to make the debt quintuple.\"\n\nIt is therefore clear, as stated earlier, that the rule of Damdupat applies in respect of interest due on amounts lent by a creditor to D the borrower, the debtor. The question then is whether the funds in the hands of a trustee can be said to be such loans notionally advanced by the trustee to 1:timself as an individual. If their character can be deemed to be such, there may be a case for applying the rule of Damdupat to the interest on such funds and that if it is not so, this rule of Damdupat will not apply to the interest ordered E . to be paid on such funds.\n\nIt has been urged for the appellant that the trustee is a debior with respect to the trust money in his hallqs. Reference has been made to Halsbury's Laws of England, III Edition, Vol. 38, page\n\n1044 where it is stated at para 1801:\n\n\"A breach of trust is, in equity, regarded as giving rise to a simple contract debt.\" In the foot-note is stated :\n\n\"Strictly speaking, the relation of debtor and creditor Gioes not subsist between a trustee and his cestui que trust (per Lindley, L. J. in (1886) 18 Q.B.D. 295).\" Cl Lewin on 'Trusts', 15th Edition, states at p. 745:\n\n\"The debt constituted by a breach of trust is, even after it has been established by a decree, an equitable debt only, and until the Bankruptcy Act, 1869, would not have supported a petition in bankruptcy.\" It was said by the Earl of Halsbury, L. C., in Sharp v. Jack- H son('):\n\n\"It has been suggested that there was a proposition which could be maintained, as to which I confess I entertain grave doubts whether any decision goes to that extent, namely, that the relation between a cestui que trust\n\n(1) [1861] B>m. H.C'. Rep. 47, 49.\n\n('J [1899] A.<'. 419, 426.\n\n...\n\nHUKUMCHAND v. FOLCHAND (Dayal, J.)\n\nand a trustee who has misappropriated the trust fund is hot that of debtor and creditor. That it may be something more than that is true, but that it is that of debtor and creJitor. l can entertain no doubt. As that question has been mooted and brought before your Lordships' House as one question for decision here, I certainly have no hesitation in saying that in my qpinion no such proposition can properly be maintained, and that although there are other and peculiar elements in the relat'.on between a cestui que trust and a trustee, undoubtedly the relation of debtor and creditor can and does exist.\" No other Lord expressed an opinion on this point.\n\nThe correctness of this expression of the Earl of Halsburv has been doubted in Lake, in rt. Dyer, Ex Parte(') by Rigby L. J.,. who remarked at the hearing:\n\n\"How is a trustee a debtor? Can he be sued at common law'' I do not see how he can be a 'debtor', for the money he is fraudulently dealing with is, at law, his own money.\n\nNo doubt he can be called upon to replace the money, but that must be by a suit in equity, not at law. Notwithstanding the high authority of the statement that has been referred to, I confess I do not understand it.\"\n\nWe are of opinion that though a trustee, who has custody of trust funds, has a pecuniary liability to make good those funds if he has used them and may, on the basis of such a liability, be said to be a debtor of the trust, yet he, as an individual, is nt a borrower of the funds from the trust and cannot be said to have taken a loan from himself as a trustee in charge of the trust funds.\n\nHis liability to pay interest, when ordered by the Court on equitable grounds, does not come w; thin the provisions dealing with interest in Hindu Law, as mentioned in Colebrooke's Digest.\n\nThere is no fixed rate of interest which a trustee be liable to pay as there is no contract between him as a trustee and as an ind'vidual to pay interest. He simply uses the money in his custody.\n\nIt is only when the Court determines his liability to pay interest that interest is to be calculated on the principal amount due from h'm. It is not the case of a creditor letting interest accumulate and thus make the debtor pay interest much more than what he had borrowed as principal.\n\nThe principle of Damdupat was evolved both as an inducement to the debtor to pay the entire principal and interest thereon at one and the same time in order to save interest in excess of the principal and as a warning to the creditor to take effective steps for realising the debt from the borrower within reasonable t; me so that there be not such accumulat; on of interest as would be in excess of the principal amount due, as in that case he would have: to forego the excess amount. There may be justification for the:\n\n(') [19Jl] 1K.B.710, 711;.\n\nprinciple of Damdupat applying in the case of an ordinary creditor A and a debtor, but there seems no justification for extending that pr'nciple to the case of a trustee who has to pay interest on the funds in his hand with respect to which on .certain grounds he is held liable to pay interest. We therefore hold that the rule of Damdupat will not apply with respect to the interest adjudged payable by a trustee on his committing breach of trust w; th respect B to the trust funds in his hands .\n\nThe result then is that the appellant is liable to pay Rs. 10,088-10-3 for principal and Rs. I l,235-9-4 as interest, upto the date of the institution of the su't, i.e. upto February 17, 1954.\n\nWe therefore allow the appeal, set aside the decree of the C High Court and modify the decree of the trial Court accordingly: The result will be that the suit temple will be entitled to get from defendant No. I a sum of Rs. 21,324-3-7 upto the date of the suit, together with future interest at 4 per cent per annum on Rs. 10,088-10-3 from the date of the suit till the date of payment.\n\nD The 2ppellant will bear his costs throughout. The costs of the respondents will come out of the estate.\n\nA ppea/ allowed.", "total_entities": 57, "entities": [{"text": "HUKUMCHAND GULABCHAND JAIN", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "HUKUMCHAND GULABCHAND JAIN", "offset_not_found": false}}, {"text": "FULCHAND LAKHMICHAND JAIN AND OTHERS", "label": "RESPONDENT", "start_char": 28, "end_char": 64, "source": "metadata", "metadata": {"canonical_name": "FULCHAND LAKHMICHAND JAIN AND OTHERS", "offset_not_found": false}}, {"text": "February 16, 1965", "label": "DATE", "start_char": 66, "end_char": 83, "source": "ner", "metadata": {"in_sentence": "HUKUMCHAND GULABCHAND JAIN\n\nFULCHAND LAKHMICHAND JAIN AND OTHERS\n\nFebruary 16, 1965\n\n!)"}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 93, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL", "label": "JUDGE", "start_char": 107, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ.", "label": "JUDGE", "start_char": 126, "end_char": 145, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Supreme Court", "label": "COURT", "start_char": 1208, "end_char": 1221, "source": "ner", "metadata": {"in_sentence": "In the appeal to the Supreme Court, it was contended that (i} there were no grounds for making the appellant liable to pay dompound interest, and (ii) even if there was liability to pay any interest, it was only for paying simple foterest and that the rule of damdupat should be applied."}}, {"text": "OVIL APPELLATE JURISDICTIOl'I", "label": "RESPONDENT", "start_char": 3384, "end_char": 3413, "source": "ner", "metadata": {"in_sentence": "OVIL APPELLATE JURISDICTIOl'I: Civil Appeal No."}}, {"text": "A. V. Viswanatha Satri", "label": "LAWYER", "start_char": 3589, "end_char": 3611, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Satri, Rameshwar Nath, S. N. Andley and P. L. Vohra, for the appellant."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 3613, "end_char": 3627, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Satri, Rameshwar Nath, S. N. Andley and P. L. Vohra, for the appellant."}}, {"text": "S. N. Andley", "label": "LAWYER", "start_char": 3629, "end_char": 3641, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Satri, Rameshwar Nath, S. N. Andley and P. L. Vohra, for the appellant."}}, {"text": "P. L. Vohra", "label": "LAWYER", "start_char": 3646, "end_char": 3657, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Satri, Rameshwar Nath, S. N. Andley and P. L. Vohra, for the appellant."}}, {"text": "S. N. Pershad", "label": "LAWYER", "start_char": 3678, "end_char": 3691, "source": "ner", "metadata": {"in_sentence": "S. N. Pershad, M. II."}}, {"text": ". Chhatrapati", "label": "LAWYER", "start_char": 3698, "end_char": 3711, "source": "ner", "metadata": {"in_sentence": "S. N. Pershad, M. II."}}, {"text": "B. Dadachanji", "label": "LAWYER", "start_char": 3716, "end_char": 3729, "source": "ner", "metadata": {"in_sentence": "Chhatrapati, J. B. Dadachanji, 0."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 3749, "end_char": 3764, "source": "ner", "metadata": {"in_sentence": "C.\n\nMathur and Ravinder Narain, for respondents Nos."}}, {"text": "K. L. Hathi", "label": "LAWYER", "start_char": 3797, "end_char": 3808, "source": "ner", "metadata": {"in_sentence": "K. L. Hathi and R. H. Dhebar, for respondent No."}}, {"text": "R. H. Dhebar", "label": "LAWYER", "start_char": 3813, "end_char": 3825, "source": "ner", "metadata": {"in_sentence": "K. L. Hathi and R. H. Dhebar, for respondent No."}}, {"text": "Raghubar Dayal", "label": "JUDGE", "start_char": 3894, "end_char": 3908, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRaghubar Dayal, J. There is a temple known as Shri Chandraprabhu Khandelwal Jain Tempie at Dhulia.", "canonical_name": "RAGHUBAR DAYAL"}}, {"text": "Hukumchand Gulabchand Jain", "label": "LAWYER", "start_char": 4033, "end_char": 4059, "source": "ner", "metadata": {"in_sentence": "Gulabchand Hiralal, father of appellant Hukumchand Gulabchand Jain, a leading member of the Khandelwal Jain Community a( Dhulia, looked after D the temple for over 40 years till his death sometime in 1950.", "canonical_name": "HUKUMCHAND GULABCHAND JAIN"}}, {"text": "Bombay", "label": "GPE", "start_char": 4410, "end_char": 4416, "source": "ner", "metadata": {"in_sentence": "Two members of the community interested in the temple, held to be a public temple, instituted the suit against the appellant and the Charity Commissioner, Bombay, praying for the removal of the appellant E from possession of the trust properties, for the rendering of true .and faithful accounts of all the assets and income of the trust property and for the framing of the scheme for the administration of the trust."}}, {"text": "October 30; 1951", "label": "DATE", "start_char": 5660, "end_char": 5676, "source": "ner", "metadata": {"in_sentence": "The appellant, in his written statement, denied that the amount was so advanced at interest as alleged by the pla; ntilis and stated that his father had been keeping a ledger in the name of the temple in the accounts in which its income and expenditure had been duly entered since over 40 years and that the appellant himself had kept R separate account books for the temple since October 30; 1951."}}, {"text": "August 22, 1958", "label": "DATE", "start_char": 6460, "end_char": 6475, "source": "ner", "metadata": {"in_sentence": "It found B that the meeting of the community had passed a resolution on August 22, 1958, by an overwhelming majority, sanctioning the accounts submitted by the appellant and that only two persons who opposed against the resolution were the two plaintiffs of the suit."}}, {"text": "February 17, 1954", "label": "DATE", "start_char": 6738, "end_char": 6755, "source": "ner", "metadata": {"in_sentence": "c The Commissioner found that on the date of the institution of the suit, i.e. on February 17, 1954, Rs."}}, {"text": "April 23, 1955", "label": "DATE", "start_char": 7112, "end_char": 7126, "source": "ner", "metadata": {"in_sentence": "The D appellants contention was accepted and the trial Court passed a decree on April 23, 1955, for Rs."}}, {"text": "July 18, 1955", "label": "DATE", "start_char": 7385, "end_char": 7398, "source": "ner", "metadata": {"in_sentence": "The appellant deposited the amount d'Ue under the decree on E July 18, 1955."}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 8442, "end_char": 8453, "source": "regex", "metadata": {"statute": null}}, {"text": "HUKUlllCIUND V. FULCHAND", "label": "JUDGE", "start_char": 11855, "end_char": 11879, "source": "ner", "metadata": {"in_sentence": "I and his father have used the monies of the temple in their business or have so mixed it up with their own funds that it is impossible to say that they have not so used it .... \"\n\nHUKUlllCIUND V. FULCHAND (DJy3/, J.) 95\n\nA Th's is not a clear-cut definite finding that the funds had been used in business or trade."}}, {"text": "December 22, 1954", "label": "DATE", "start_char": 12255, "end_char": 12272, "source": "ner", "metadata": {"in_sentence": "B It was said in the khu/asa dated December 22, 1954 and included in the Additional Report of the Commissioner of even date:\n\n\"Because the amount that was received by the defendant in respect of the temple could be utilised by the defendant in his business he used to pay interest thereon at the rate of annas 8.\""}}, {"text": "October 26, 1931", "label": "DATE", "start_char": 13154, "end_char": 13170, "source": "ner", "metadata": {"in_sentence": "made by the appellant's father on October 26, 1931, in Regular Suit No."}}, {"text": "Gulabchand", "label": "OTHER_PERSON", "start_char": 13335, "end_char": 13345, "source": "ner", "metadata": {"in_sentence": "Gulabchand, father of the appellant, stated .in examination-in-chief, that the 1 funds lent were of the temple, the transactions of the temple were in his name and that interest at compound rate had been agreed upon.", "canonical_name": "G_ulabchand"}}, {"text": "G_ulabchand", "label": "OTHER_PERSON", "start_char": 13875, "end_char": 13886, "source": "ner", "metadata": {"in_sentence": "G_ulabchand made another statement on January 12, 1950.", "canonical_name": "G_ulabchand"}}, {"text": "January 12, 1950", "label": "DATE", "start_char": 13913, "end_char": 13929, "source": "ner", "metadata": {"in_sentence": "G_ulabchand made another statement on January 12, 1950."}}, {"text": "SU!'H", "label": "JUDGE", "start_char": 14499, "end_char": 14504, "source": "ner", "metadata": {"in_sentence": "SU!'H, J'1ME\n\nCOURT\n\nREPORTS\n\n(!"}}, {"text": "Mangilal", "label": "OTHER_PERSON", "start_char": 14765, "end_char": 14773, "source": "ner", "metadata": {"in_sentence": "As there was interest in the mortgage deed, I have taken interest at eight annas from Mangilal."}}, {"text": "B Gulabchand", "label": "OTHER_PERSON", "start_char": 14953, "end_char": 14965, "source": "ner", "metadata": {"in_sentence": "taken togclher, lead to the inference that B Gulabchand was not crediting interest on the temple funds in the accounts except when he received interest on the amounts lent and that this statement made in 1931 was in connection with the amount lent on a mortgage deed."}}, {"text": "November 29, 1954", "label": "DATE", "start_char": 15701, "end_char": 15718, "source": "ner", "metadata": {"in_sentence": "The report submitted by the Commissioner on November 29, 1954 shows that the balance at the beginning of samvat year 1996, corresponding to 1939-40, was Rs."}}, {"text": "Indian Trusts Act", "label": "STATUTE", "start_char": 17472, "end_char": 17489, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 23", "label": "PROVISION", "start_char": 17593, "end_char": 17598, "source": "regex", "metadata": {"statute": null}}, {"text": "Charitable and Religious Trusts Act", "label": "STATUTE", "start_char": 17676, "end_char": 17711, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "November 10, 1931", "label": "DATE", "start_char": 19138, "end_char": 19155, "source": "ner", "metadata": {"in_sentence": "10,000 in his hands from samvat year 1988 commencing from November 10, 1931, upto February 17, 1954, when this suit was instituted."}}, {"text": "November IO, 1931", "label": "DATE", "start_char": 20469, "end_char": 20486, "source": "ner", "metadata": {"in_sentence": "We do not\n\ncm:isider it desirable that the case be sent back to the trial Court A for these calculations, in the light of our finding, as this litigation has been pending for over 10 years and as the accounting is to be I done for a period commencing from November IO, 1931, from which date the accounts are available to the Court."}}, {"text": "Decem- B ber 22, 1954", "label": "DATE", "start_char": 20596, "end_char": 20617, "source": "ner", "metadata": {"in_sentence": "The Addit; onal Report of the Commissioner, dated Decem- B ber 22, 1954, shows that the amount of principal on February 17,\n\n1954, the date on which the suit was filed, was Rs."}}, {"text": "February 17,\n\n1954", "label": "DATE", "start_char": 20657, "end_char": 20675, "source": "ner", "metadata": {"in_sentence": "The Addit; onal Report of the Commissioner, dated Decem- B ber 22, 1954, shows that the amount of principal on February 17,\n\n1954, the date on which the suit was filed, was Rs."}}, {"text": "August 22, 1953", "label": "DATE", "start_char": 22782, "end_char": 22797, "source": "ner", "metadata": {"in_sentence": "The appellant stated that the statement of the balance in and submitted by him to the meeting on August 22, 1953 was amved at by adding an amount of Rs."}}, {"text": "Colebrooke", "label": "OTHER_PERSON", "start_char": 24632, "end_char": 24642, "source": "ner", "metadata": {"in_sentence": "Th's is clear from Colebrooke's Digest on Hindu Law."}}, {"text": "Damdupai", "label": "OTHER_PERSON", "start_char": 26132, "end_char": 26140, "source": "ner", "metadata": {"in_sentence": "R.\n\nThis is what is known by the rule of Damdupai and has been A rightly construed, as long ago as Ul63, by the Bombay High Court in Dlwndu Jagannath v. Narayan Ramchandra(/).", "canonical_name": "Damdupai"}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 26203, "end_char": 26220, "source": "ner", "metadata": {"in_sentence": "R.\n\nThis is what is known by the rule of Damdupai and has been A rightly construed, as long ago as Ul63, by the Bombay High Court in Dlwndu Jagannath v. Narayan Ramchandra(/)."}}, {"text": "England", "label": "GPE", "start_char": 27642, "end_char": 27649, "source": "ner", "metadata": {"in_sentence": "Reference has been made to Halsbury's Laws of England, III Edition, Vol."}}, {"text": "Lindley", "label": "JUDGE", "start_char": 27956, "end_char": 27963, "source": "ner", "metadata": {"in_sentence": "In the foot-note is stated :\n\n\"Strictly speaking, the relation of debtor and creditor Gioes not subsist between a trustee and his cestui que trust (per Lindley, L. J. in (1886) 18 Q.B.D. 295).\""}}, {"text": "Cl Lewin", "label": "OTHER_PERSON", "start_char": 27998, "end_char": 28006, "source": "ner", "metadata": {"in_sentence": "Cl Lewin on 'Trusts', 15th Edition, states at p. 745:\n\n\"The debt constituted by a breach of trust is, even after it has been established by a decree, an equitable debt only, and until the Bankruptcy Act, 1869, would not have supported a petition in bankruptcy.\""}}, {"text": "Bankruptcy Act, 1869", "label": "STATUTE", "start_char": 28186, "end_char": 28206, "source": "regex", "metadata": {}}, {"text": "Halsburv", "label": "GPE", "start_char": 29370, "end_char": 29378, "source": "ner", "metadata": {"in_sentence": "The correctness of this expression of the Earl of Halsburv has been doubted in Lake, in rt."}}, {"text": "Dyer", "label": "JUDGE", "start_char": 29412, "end_char": 29416, "source": "ner", "metadata": {"in_sentence": "Dyer, Ex Parte(') by Rigby L. J.,."}}, {"text": "Rigby", "label": "JUDGE", "start_char": 29433, "end_char": 29438, "source": "ner", "metadata": {"in_sentence": "Dyer, Ex Parte(') by Rigby L. J.,."}}, {"text": "Damdupat", "label": "OTHER_PERSON", "start_char": 31499, "end_char": 31507, "source": "ner", "metadata": {"in_sentence": "principle of Damdupat applying in the case of an ordinary creditor A and a debtor, but there seems no justification for extending that pr'nciple to the case of a trustee who has to pay interest on the funds in his hand with respect to which on .certain grounds he is held liable to pay interest.", "canonical_name": "Damdupai"}}, {"text": "C High Court", "label": "COURT", "start_char": 32238, "end_char": 32250, "source": "ner", "metadata": {"in_sentence": "We therefore allow the appeal, set aside the decree of the C High Court and modify the decree of the trial Court accordingly: The result will be that the suit temple will be entitled to get from defendant No."}}]}
{"document_id": "1965_2_693_698_EN", "year": 1965, "text": "M. R. PATEL v.\n\nSTATE OF BIHAR AND OTHERS\n\nJanuary 5, 1965\n\n[P. B. GAJENDRAGADKAR, C.J., M. HIDAYATULLAH, 1. C. SHAH,\n\nS. M. S!KRI AND R. S. BACHAWAT 11.J\n\nBihar and Orissa Excise Act, 1915 (Bihar and Orissa Act 2 of 1915}, u. 8, 35, 38 to 91-Board of Revenue-Issue of Directions-Whether could increase security deposit-Powers of Revision-If exercisable\n\nsuo motu-Limitation.\n\nConsequent upon a direction by the Board of Revenue, Bihar, fixing tho security deposit ot Excise shops working under a certain system, the Commissioner of Excise directed realisation of the defecit in the security depooit of the appellant's shops.\n\nThe appellant moved the Board ot Revenue for revision of the Excise Commissioner's order. The Board of Revonue held that it was open to the appellant to move the Excise Com missioner for relief.\n\nSubsequently on the appellant's motion the Exciso Commissioner in supersession of his previous order, directed that in the special circumstances of the case, the security depoit in respect of the appellant's shop need not be increased. In spite of a representation made by the Deputy Commissioner, the Excise Commissioner refused to revise his order. At the request of the Deputy Commissioner the Commissioner of the Division referred the matter to the Board of Revenue. After hearing the appellant, in exercise of its powers of revision under s. 8 of the Act the Board, suo motu, set aside the order of the Excise Commissioner with the direction that until the expiry of the current licences there would be no change in the amount of security, but proper security in terms of the eeneral directions by the Board should be demanded from the appellant at the time of the renewal of the licenses. In appeal, HELD : (i) Neither the orginal order nor the subsequent order was passed by the Excise Commissioner under s. 35 on a consideration of the matters referred to in that section. The finality of s. 35 did not attach to these orders and the Board of Revenue had ample power to revise them under s. 8. [696 B-C]\n\n(ii) On a true construction ot ss. 38 and 91 of the Act, the Board in exercise of its powers under s. 38 road with s. 91 could from time to time issue general directions with regard to the conditions of any licence sranted under the Act including the amount of security to be deposited by the licensee. [696 G-H]\n\n(iii) Instruction No. IOI (10) of the Board of Revenue at p. 30 of Vol. III of the Bihar and Orissa Excise Mannual, 1955 Ed. read with Board's circular letter No. 8624 dated September 9, 1956 did not prevent onhancement of security at the time of the renewal of license. [ 697\n\nC-DJ\n\n(iv) The Board ot Revenue may exercise its powers of revision under\n\n1. 8(3) suo motu. [697 E-F]\n\n(v) In a case where the Board exercises its power of revision of its own motion, no question of limitation arises. [697 HJ CML APPELLATE JURISDICTION: Civil Appeal No. 331 of 1962.\n\nSUPRBMB COURT REPORTS\n\n(1965) 2 S.C.ll.\n\nAppeal by special leave from the Resolution dated October 4, A 1959 of the Board of Revenue, Bihar, in Case No. 124 of 1959.\n\nRajeswari Prasad and S. P. Varma, for the appellant.\n\nC. K. Daphtary, Attorney-General, R. K. Garg, S. C. A.garwala and D. P. Singh, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. The appellant holds yearly licenses for the retail sale of country spirit in respect of six shops in the town of.\n\nJamshedpur working under the sliding scale system under the Bihar and Orissa Excise Act, 1915 (Bihar and Orissa Act 2 of\n\n1915) hereinafter referred to as the Act. A total sum ot Rs. 11,099 was demanded and paid as security in respect of all the licenses.\n\nThe original licenses in respect of the six shops were issued long ago and were renewed from year to year.\n\nBy an order dated June 27, 1956, the Board of Revenue, Bihar directed that \"the security deposit of an Excise shop working under the sliding scale system is hereby fixed as equivalent to two months' average license fees of the shop.\" The security depos!t payable by the appellant on the basis of this direction would amount to about Rs. 68,000. On November 14, 1956, the Commissioner of Excise, Bihar directed the Deputy Commissioner, Singhbhum to realise from the appellant the deficit in the security deposits of his shops.\n\nThis order was communicated to the appellant on December 7, 1956. On January 9, 1957, the appellant filed a petition before the Board of Revenue, praying for a\n\nrevision of the order of the Excise Commissioner dated November 14, 1956.\n\nBy order dated March 20, 1957, the Board of Reve>- nue held that the merits of the appellant's case need not be examined at that stage, and observed that the order of the Excise Commissioner would constitute no bar to the appellant moving the Commissioner for considering the special circumstances, if any, of his case on merits and, for this purpose, it would be open to the appeilant to move the Commissioner in an appropriate manner.\n\nSubsequently, the appellant moved the Excise Commissioner for reconsideration and setting aside of his previous order dated November 14, 1956. By his order dated March 5, 1958, the Commissioner of Excise, in supersession of his previous order, directed that in the special circumstances of the case, the security deposit in respect of the appellant's shops need not be increased and the appellant could continue to manage the shops on the -existing total security of Rs. 11,099 only.\n\nIn spite of a representation made by the Deputy Commissioner, Singhbhum, the\n\nExcise Commissioner refused to revise this order. On June 27, 1958, at the request of the Deputy Commissioner, Singhbhum, the Commissioner, Chotanagpur Division, referred the matter to the Board of Revenue. On April 24, 1959, the Board of Revenue\n\ndirected the issue of a notice to the appellant asking him 'to show cause why he should not be ordered to pay the difference between\n\nthe prescribed security deposit and the amount already deposited.\n\nBy a petition dated July 30, 1959, the appellant showed cause.\n\nAt the hearing of the case before the Board of Revenue, the appellant was represented by counsel. By an order dated October 4, 1959, the Board of Revenue, in exercise of its powers of revision under s. 8 of the Act, set aside the order of the Com• missioner of Excise dated March 5, 1958, with the direction that until the expiry of the current licenses on .March 31, 1960 there\n\nwould be no change in the amount of security, but the proper security in terms of the general directions issued by the Board should be demanded from the licensee at the time of the renewal Of the licenses, wiih effect from the next licensing year.\n\nThe appellant now appeals to this Court from this order by special leave.\n\nOn behalf of the appellant, Mr. Rajeshwari Prasad contended that in view of s. 35 of the Act, the Board of Revenue could not under s. 8 of the Act revise the order of the Excise Commissioner dated March. 5, 1958. There is no substance in this contention.\n\nSection 8 ( 3) provides that the Board may revise any order passed by the Excise Commissioner.\n\nSection 35 provides that the Excise Commissioner may, on a consideration of the list, objections and opinions sent to him by the Collector under s. 34, modify or annul any order passed or any license granted by the Collector, and notWithstanding anything contained in s. 8, his orders shall be final.\n\nThe Excise Commissioner did not pass the order dated March 5, 1958 in exercise of his powers under s. 35, on a consideration of the list, objections and opinions sent to him\n\nunder s. 34. He passed the order in. exercise of his general powers of control over the collector and the Excise Department under ss. 8; and 7(2)(a) read with s. 2(7) of the Act.\n\nDuring tho currency of the licenses issued to the appellant for the year 195(;.57, a question arose whether the additional security should be demanded from the appellant in view of the general directions iasued by th~ Board of Revenue on June 27, 1956. By his order B dated November 14, 1956, the Excise Commissioner directed that tH additional security should be realised from the appellant. On a, nwision petition filed. by the af>pellant under s. 8, the Board of\n\nSUPREME\n\nCOURT\n\nREPORTS [1965] 2 S.C.ll.\n\nRevenue by its order dated March 20, 1957, permitted the appellant to move the Excise Commissioner for reconsideration of his order dated November 14, 1956. On being moved by the appellant under. the liberty so granted by the Board of Revenue, the Excise Commissioner by his order dated March 5, 1958 reviewed and set aside his previous order on a consideration of the general directions issued by the Board of Revenue, the Board's order dated March 20, 1957 and the special circumstances of the case.\n\nNeither the original order dated November 14, 1956 nor the subsequent order dated March 5, 1958 was passed by the Excise Commissioner under s. 3 5 on a consideration of the matters referred to in that section.\n\nThe finality of s. 35 did not attach to these orders and the Board of Revenue had ample power to revise them under s. 8.\n\nMr. Prasad next referred us to s. 40 of the Act and the stan• dard form of license for the retail vend of country spirit, and contended that only the authority granting the license could fix the amount of the security, and one of the conditions of tho license was that the licensee would be required to deposit .only the amount so fixed but the Board of Revenue by its order dated October 4, 1959 illegally and in excess of its powers altered the amount of the security so fixed and the corresponding condition in the license for the deposit of the amount.\n\nThis argument is based on a misreading of the order of October 4, 1959, and must be rejected. By that order, the Board expre; ssly directed that there would be no change in the amount of the security during the currency of the license. The licenses were due to expire on March 31, 1960.\n\nThe Board directed that if and when the licenses were renewed with effect from the next licensing year, the proper security should be demanded from the licensee as a condition of the renewal.\n\nNo_ exception can be taken to this direction.\n\nThe licensee had no vested right to a renewal of the license.\n\nSection 45 of the Act provides that he shall have no claim to its renewal.\n\nThe licensing authority was not bound to renew the license.\n\nIf, in its discretion, it granted a renewal, it could require the licensee to give proper security as a condition of the renewal.\n\nOn a true construction of ss. 38 and 91 of the Act it must be held that the Board, in exercise of its powers under ' 38 read with s. 91, could from time to time issue general directions with regard to the conditions of any license granted under the Act including the amount of the security to be deposited by the licensee.\n\nIn exercise of its powers under ss. 38 and 91, the Board had fixed the security deposit of an Excise shop\n\nworking under the sliding scale system as equivalent to two months' average license fees of the shop.\n\nThe Board was entitled to direct, as it did by the order dated October 4, 1961, that the general directions issued by it under ss. 38 and 91 should be observed and carried out by the licensing authority and the proper security in accordance with those directions should be demanded if and when the licenses were next renewed.\n\nMr. Prasad next contended that the direction for the increase of the security at the time of the renewal of the licenses is contrary to the instruction No. 101 ( 10) of the Boarc: of Revenue at p. 39 of Vol. III of the Bihar and Orissa Excise Manual, 19S5 Edn. There is no substance in this contention. In its order dated October 4, 1959, the Board of Revenue exhaustively reviewed all the relevant instructions issued by it from time to time, and rightly pointed out that instruction No. 101 (10) read with the Board's circular letter No. 8624 dated September 9, 1956 did not prevent of the security at the time of the rrnewal of the licenses.\n\nMr. Prasad lastly argued that (a) the power of revision under s. 8(3) of the Act could be exercised by the Board of Revenue only on an application by an aggrieved party, and (b) the proceedings in revision in the instant case were barred by limitation.\n\nThere is no substance in these contentions. The Board of Revenue may exercise its powers of revision under s. 8 (3) SUD mDtu.\n\nNo period of limitation is prescribed by the Act for exercise of the power of revision under s. 8 ( 3). Mr. Prasad drew our attention to paragraph 71, Chap. V of Part III of the Bihar Practice and Procedure Manual, 1958, pp. 99 and 100, which provides that where there is no provision of law as to the period within which an application for revision may be allowed, the application for revision should be preferred within one month of the date of the Commissioner's order deducting the time occupied in obtaining a copy of the order, but the Board has a discretion to admit the application for revision preferred after one month.\n\nIn the instant case, in its order dated October 4, 1959, the Board stated that it would exercise its powers of revision suD mDtu.\n\nIn a case where the Board exercises its power of revision of its own motion, no question of limitation arises.\n\nMoreover, the Board held that this was a fit case for interference even after the expiry of the ordinary period of limitation.\n\nNo other arguments were advanced before us.\n\nWe see no reason to interfere with the Board's order. The learned Attorney-\n\nSUPREME COURT REPORTS\n\n(1965] 2 S.C.R.\n\nGeneral raised a preliminary objection as to the maintainability of the appeal on the ground that the Board is not a tribunal within the meaning of Art. 136 of the Constitution. In view of our conclusion that the appellant has no case on the merits, we do not think it necessary to express any opinion on the preliminary objection.\n\nIn the result, the appeal is dismissed with costs.\n\nAppeal dismissed.", "total_entities": 68, "entities": [{"text": "M. R. PATEL", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "M. R. 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["}}, {"text": "Rajeswari Prasad", "label": "LAWYER", "start_char": 3081, "end_char": 3097, "source": "ner", "metadata": {"in_sentence": "Rajeswari Prasad and S. P. Varma, for the appellant.", "canonical_name": "Rajeshwari Prasad"}}, {"text": "S. P. Varma", "label": "LAWYER", "start_char": 3102, "end_char": 3113, "source": "ner", "metadata": {"in_sentence": "Rajeswari Prasad and S. P. Varma, for the appellant."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 3135, "end_char": 3149, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, R. K. Garg, S. C. A.garwala and D. P. Singh, for the respondents."}}, {"text": "R. K. Garg", "label": "LAWYER", "start_char": 3169, "end_char": 3179, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, R. K. Garg, S. C. A.garwala and D. P. Singh, for the respondents."}}, {"text": "S. C. 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the Deputy Commissioner, Singhbhum to realise from the appellant the deficit in the security deposits of his shops."}}, {"text": "June 27, 1958", "label": "DATE", "start_char": 5590, "end_char": 5603, "source": "ner", "metadata": {"in_sentence": "On June 27, 1958, at the request of the Deputy Commissioner, Singhbhum, the Commissioner, Chotanagpur Division, referred the matter to the Board of Revenue."}}, {"text": "Chotanagpur Division", "label": "GPE", "start_char": 5677, "end_char": 5697, "source": "ner", "metadata": {"in_sentence": "On June 27, 1958, at the request of the Deputy Commissioner, Singhbhum, the Commissioner, Chotanagpur Division, referred the matter to the Board of Revenue."}}, {"text": "April 24, 1959", "label": "DATE", "start_char": 5747, "end_char": 5761, "source": "ner", "metadata": {"in_sentence": "On April 24, 1959, the Board of Revenue\n\ndirected the issue of a notice to the appellant asking him 'to show cause why he should not be ordered to pay the difference between\n\nthe prescribed security deposit and the amount already deposited."}}, {"text": "s. 8", "label": "PROVISION", "start_char": 6249, "end_char": 6253, "source": "regex", "metadata": {"statute": null}}, {"text": "March 5, 1958", "label": "DATE", "start_char": 6324, "end_char": 6337, "source": "ner", "metadata": {"in_sentence": "By an order dated October 4, 1959, the Board of Revenue, in exercise of its powers of revision under s. 8 of the Act, set aside the order of the Com• missioner of Excise dated March 5, 1958, with the direction that until the expiry of the current licenses on .March 31, 1960 there\n\nwould be no change in the amount of security, but the proper security in terms of the general directions issued by the Board should be demanded from the licensee at the time of the renewal Of the licenses, wiih effect from the next licensing year."}}, {"text": ".March 31, 1960", "label": "DATE", "start_char": 6407, "end_char": 6422, "source": "ner", "metadata": {"in_sentence": "By an order dated October 4, 1959, the Board of Revenue, in exercise of its powers of revision under s. 8 of the Act, set aside the order of the Com• missioner of Excise dated March 5, 1958, with the direction that until the expiry of the current licenses on .March 31, 1960 there\n\nwould be no change in the amount of security, but the proper security in terms of the general directions issued by the Board should be demanded from the licensee at the time of the renewal Of the licenses, wiih effect from the next licensing year."}}, {"text": "Rajeshwari Prasad", "label": "LAWYER", "start_char": 6786, "end_char": 6803, "source": "ner", "metadata": {"in_sentence": "On behalf of the appellant, Mr. Rajeshwari Prasad contended that in view of s. 35 of the Act, the Board of Revenue could not under s. 8 of the Act revise the order of the Excise Commissioner dated March.", "canonical_name": "Rajeshwari Prasad"}}, {"text": "s. 35", "label": "PROVISION", "start_char": 6830, "end_char": 6835, 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{"document_id": "1965_2_699_704_EN", "year": 1965, "text": "LOTUS LINE (P) LTD. v.\n\nTHE STATE OF MAHARASHTRA\n\nJanuary 7, 1965\n\n699'\n\nB [P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, s. M. SIKRI, JJ.]\n\nDamages-Measure of-whether party complaining of wrong to property entitled to restitution-<Jr to restoration of property damaged to original condition.\n\nA vessel owned by the appellant, caused damage to a jetty. The respondent state prepared an estimate of Rs. 16,400 as the cost of special C repain for the damage done.\n\nSometime thereafter, emergent repairr costing Rs. 2783/ - were undertaken by the respondent state to make the jetty workable and later some minor repairs costing about Rs. 1223/- were further carried out.\n\nThe appellant having refused to pay for tho damage done, the respondent state filed a suit claiming all the three above mentioned amounts and interest thereon.\n\nThe trial court found that the damage done was attributable to tho D negligence of the appellant, but as regards the quantum of damages. it came to !be conclusion that the claim for Rs. 16,400/- was really for reconstruction of the whole damaged area, so that the respondent state was in fact seeking restitution and not compensation for !be damage dne.\n\nThe trial court refused to give such restitution and held that the expenditure in respect of emergent and minor repairs had put the jetty in working order and therefore gave a decree of Rs. 3671/ 12/ 6 which was th<>\n\namount actually spent by the state in making these repairs.\n\nIn appeal, the High Court was of the view that the Wednesbury Corporation's Case, [1907] 1 K.B. 78, laid down the general rule in such cases, which was, to require the party in the wrong to make compensation and not restitution; but that this rule was subject to the exception that wher<> the party complaining of a wrong to property was a corporation or a trust<>e charged with the maintenance of a highway or other public work, the wrong-doer was bound to make restitution. The High Court therefore allowed the appeal modified the decree of tho trial court by awardLg a aum of Rs. 19,038/ 8/ - plus interest.\n\nHELD : The Wednesbury Corporation's case did not lay down the proposition in the form •lated by the High Court. The true measur< of compensation was held in that case to be the cost of restoration.\n\nTh<> p<>rsan to whom a wrong was done was entitled to full compensation for restoring the thing damaged to its original condition, but this did not mean complete reconstruction irrespective of the damage done. (702 l:l-D,\n\nB-F, G] The evidence in this case showed that the amount of Rs. 16,400/- was needed to carry out necessary repairs to restore the jetty to i!' original condition and not that the amount was for complete reconstruction of the jetty ipective of the damage done to it.\n\nAs this amount would ha e restored the jetty to its original condition, there was no reason to al'ow anything to the respondent state on accunt of emergent repairs or for any other expenditure. (703 B-D, G] CML APPELLATE JURISDICTION: Civil Appeal No. 810 of 1962.\n\nAppeal from the judgment and decree dated October 1, 1959, A of the Bombay High Court in First Appeal No. 697 of 1955.\n\nPurushottam Tricumdas, I. B. Dadachan; i, 0. C. Mathur and Ravinder Narain, for the appellant.\n\nT. V. R. Tatachari, and R. N. Sachthey, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nWanchoo, J.\n\nThis appeal on a certificate granted by the Bombay High Court arises out of a suit brought by the State of Bombay (respondent) against the appellant for recovery of Rs. 24,979 /2/ 4. The facts which led to the filing of the suit C are not now in dispute as they have been concurrently found by the two courts below and may be briefly narrated. On April 27, 1948, at about midday, the vessel Padam belonging to the appellant arrived in the Dharamtar creek carrying a cargo of 3500 bags of manure )Veighing about 250 tons and laid anchor along- D side Dharamtar jetty lying on the Pen side of the creek on the Pen-Khopoli road.\n\nThe Dharamtar jetty is meant for small vessels bringillg passengers and luggage crossing the creek and so the peon on duty there requested the master of the ship to remove the vessel into the creek and to unload the cargo with the help of small boats.\n\nThe master of the ship agreed to do so. But E when he tried to move the vessel away from the jetty, she actually came on top of it due to the force of the ebb tide and got stuck there. The incident was reported by the peon to his superior officer who directed the peon to inform the master to refloat the vessel at night when there was high tide.\n\nThe master did so at about 3 A.M.\n\nThe consequence of the essel getting on the jetty F and the attempt to take it off was serious damage to the jetty, which was broken. This damage was found on the next day, i.e., April 28, 1948. An estimate for special repairs of the damage done was prepared soon after and was submitted on May 12, 1948 to the Executive Engineer.\n\nThe appellant was asked by telegram un May 5, 1948 to send a representative in order that G an estimate of the cost of special repairs for the damage done might be prepared.\n\nThe appellant replied by telegran1 that a representative would be sent but no one appeared on behalf of the appellant when the estimate was prepared.\n\nThis estimate was for Rs. 16,400/-. It appears that sometime tliereafter emergent repairs costing Rs. 2,783/- were undertaken to make the H jetty workable.\n\nLater, some minor repairs costing about Rs. 1,223/- were further carried out.\n\nIn the meantime the\n\nLOTUS LINE v. STATE (Wanchoo, /.) 701\n\nA appellant was asked again and again to pay for the damage done.\n\nThe appellant refused to do so and therefore the State of Bombay filed the suit claiming the three sums mentioned above for special repairs, emergent repairs and minor repairs and also 6 per centum per annum interest thereon.\n\nB The trial court found that the above facts had been established by the evidence led before it and that the appellant was liable to make go<id the loss as it arose on account of the negligence of the master of the ship.\n\nIt then came to consider the quantum of damages.\n\nIt came to the conclusion that the claim for Rs. 16,400/- was really for reconstruction of the whole damaged C area and this showed that the respondent-State wanted restitution and not compensation for the damage done. ]t, however, refused to give restitution on the ground that it had not been proved that special repairs to the extent of Rs. 16,400/- were absolutely necessary for the damaged portion of the jetty. The trial court also inspected the jetty and was of the opinion that the emergent D and minor repairs that had been made had put the jetty in order and traffic was going on as usual. Further it took into account the statement of a witness that a bridge was being constructed over the Dharamtar creek and was likely to be completed within two years. It, therefore, finally gave a decree for Rs. 3,671/12/6 which had been actually spent by the State in making the repairs.\n\nJ: The rest of the claim was dismissed.\n\nThis led to an .appeal by the State before the High Court, and the only question which the High Court had to decide was the quantum of damages.\n\nIn that connection the High Court relied on The Mayor of Wednesbury Corporation v. The Lodge Holes r Colliery Co. Limited(') and held that that case laid down that the general rule was to require the party in the wrong to make compensation and not restitution; but there was an exception to this rule and that exception was where the party complaining of a wrong to property was a corporation or a trustee charged with the mainti>- nance of a highway or other public work. In such a case the wrong- G doer was bound to make restitution because a corporation or a trustee who was charged with the maintenance of public works was bound to restore the property in its or his possession to its original condition. On this view, the High Court allowed the appeal and modified the decree of the trial court by awarding Rs. 19,038/8/- and interest at 6 per centum from the date of suit till realisation.\n\nH Th& present appeal on a certificate granted by . the High Court challenges the principle laid down by the High Court, and it is\n\n(1) [19,7] I K. B. 78.\n\nL4Sup/6S-11\n\nurged that no such principle has been laid in Wednesbury Corpo- A ration's case(1) and that that case was overruled in Lodge Holes Colliery Co. Ltd. v. Mayor of Wednesbury( 2).\n\nThe only question that arises for decision before us therefore is the quantum of damages in a case like this. Apart from the fact that the case relied upon by the High Court has been partly overruled in the Lodge Holes Colliery Co. Limited's case(2 ), we have been unable to find therein the principle which the High Court has deduced from the case of Wednesbury Corporation(1 ). Learned counsel for the respondent, State is also unable to point out any passage in the judgment of Cozens-Hardy L.J. which lays down C the proposition in the form in which the High Court has stated it. As we read that case it lays down that the rights of a corporation in such a case are at least as high as that of a private owner, with this addition that a. trustee or corporation cannot renounce those rights in the same way as a private owner could. The true measure . of compensation was held in that case to be the cost D of restoration and compensation must give full restoration. l'n\n\nthat case the dispute really was whether the road which had subsided should be raised to the same level as it was before or whether the purpose would be served even though it was not raised to the same level and a dip was allowed therein. The Appeal Court held that the Corporation was entitled to full compensation for restoring E the road to its original condition. It may be mentioned that this view was not accepted in full by the House of Lords. It seems to us however that the _yiew taken in Wednesbury Corporation'& case(1 ) that a person to whom a wrong is done is entitled to full compensation for restoring the thing damaged to its original condition may be accepted as the true measure of damages in a case of r\n\nthis kind. This applies equally to a private person as to a corpo- . ration or trustee. Therefore, the respondent-State was entitled to compensation to the extent necessary to restore the jetty to its ·<>riginal condition. If this is to be called restitution, the corporation as well as a private person would be entitled to it. But if by restitution, the High Court meant complete reconstruction irres- G pective of the damage done, then neither a private person nor a corporation or a trustee is entitled to complete reconstruction irrespective of the damage done.\n\nThis being the principle, the respondent-State would be entitled to such cost as would restore the jetty to its original condition. It H is in that connection that an estimate was submitted for special\n\n(!) (1907) I K. B. 78.\n\n2. (1908] A. C. 323.\n\nLOTUS LINB V. STATE (Wanchoo, /.) 703\n\nA repairs to the jetty as early as May 12, 1948.\n\nThe appellant was invited to send a representative to assess the cost of repairing the damage done but it neglected to do so.\n\nThere is nothing dn the record to show hat the special repairs to the tune of Rs. 16,400 fwere for complete reconstruction of the jetty irrespective of the damage done to it.\n\nNothing has been brought out in the evidence B of Patel who prepared the estimate and of the Sub Divisional\n\nOfficer who supervjsed it to show that the estimate of Rs. 16,400/- was for complete reconstruction of the jetty irrespective of the damage done.\n\nThe covering letter to the estimate shows that it was an estimate for special repairs to the jetty. If the appellant neglected to send a representative to be present to assess the C damage and the cost of repairing it, it cannot now come forward and say that the amount of Rs. 16,400 /- would not be the proper sllll) required for restoring the jetty to its original condition. All that has been brought out in the evidence of the two witnesses referred to above is that it could not be said whether any part of D the dismantled material was fit for re-use; nor were the witnesses able to say what the dismantled material would have fetched if sold.\n\nBarring these two matters all that the evidence shows is that the amount of Rs. 16,400/- was needed to carry out the special . repairs, which would have presumably restored the jetty to its original condition.\n\nTherefore the respondent-State would E be entitled to this. sum of Rs. 16,400/-. But in view of the fact that some of the material might have been fit for re-use and some of the material might have been resold and thus fetched some price, we would deduct the item of Rs. 1,600/ (from the total of Rs. 16,400/-) which refers to \"dismantling tlie damaged portion and removing the debris outside including sorting materials and F stacking the useful one to a suitable site etc.\" The rest of the estimate amounting to Rs. 14,800/- is clearly for restoration of the jetty to its original condition and the respondent-State would be entitled to that amount.\n\nWe may add however that there is no reason to allow anything G to the respondent-State in the shape of emergent repairs. It has been shown that Rs. 14,800/- would have restored the jetty to its originlil condition and that is all that the State is entitled to have.\n\nHow it decided to spend that sum, whether at one time or at different times in the shape of emergent repairs or minor repairs, has no bearing on the quantum of compensation necessary for H restoring the jetty to its original condition. For the same reason the fact that the State might not have \"spent the whole amount by the time the trial court came to give its judgment or the fact that\n\nSUPRBMB COURT REPORTS\n\n[1965] 2 S.C.R.\n\na bridge was going up and the jetty might not thereafter be required A. has no relevance on the question of damage done on April 27, 1948, though the former may affect the date from which interest may be awarded. We are therefore of opinion that the respondent-State is entitled to Rs. 14,800/- as compensation for the damage done to the jetty to put it back in its original condition. 1l We therefore partly allow the appeal and reduce the amount decreed to Rs. 14,800/-. This sum will carry interest at the rate of Rs. 6/- per centum from the date of decree of the trial court till realisation as ordered by the High Court. The appellant will pay proportionate costs throughout to. the respondent-State.\n\nAppeal partly allowed.", "total_entities": 25, "entities": [{"text": "LOTUS LINE (P) LTD", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "LOTUS LINE (P) LTD", "offset_not_found": false}}, {"text": "THE STATE OF MAHARASHTRA", "label": "RESPONDENT", "start_char": 24, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "January 7, 1965", "label": "DATE", "start_char": 50, "end_char": 65, "source": "ner", "metadata": {"in_sentence": "v.\n\nTHE STATE OF MAHARASHTRA\n\nJanuary 7, 1965\n\n699'\n\nB [P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, s. M. SIKRI, JJ.]"}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 76, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 104, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "s. M. SIKRI, JJ.", "label": "JUDGE", "start_char": 119, "end_char": 135, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Wednesbury Corporation", "label": "ORG", "start_char": 1512, "end_char": 1534, "source": "ner", "metadata": {"in_sentence": "In appeal, the High Court was of the view that the Wednesbury Corporation's Case, [1907] 1 K.B. 78, laid down the general rule in such cases, which was, to require the party in the wrong to make compensation and not restitution; but that this rule was subject to the exception that wher<> the party complaining of a wrong to property was a corporation or a trust<>e charged with the maintenance of a highway or other public work, the wrong-doer was bound to make restitution."}}, {"text": "Purushottam Tricumdas", "label": "PETITIONER", "start_char": 3148, "end_char": 3169, "source": "ner", "metadata": {"in_sentence": "Purushottam Tricumdas, I. B. Dadachan; i, 0."}}, {"text": "I. B. Dadachan", "label": "LAWYER", "start_char": 3171, "end_char": 3185, "source": "ner", "metadata": {"in_sentence": "Purushottam Tricumdas, I. B. Dadachan; i, 0."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 3193, "end_char": 3202, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 3207, "end_char": 3222, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "T. V. R. Tatachari", "label": "LAWYER", "start_char": 3244, "end_char": 3262, "source": "ner", "metadata": {"in_sentence": "T. V. R. Tatachari, and R. N. Sachthey, for the respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3268, "end_char": 3282, "source": "ner", "metadata": {"in_sentence": "T. V. R. Tatachari, and R. N. Sachthey, for the respondent."}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 3349, "end_char": 3356, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nWanchoo, J.\n\nThis appeal on a certificate granted by the Bombay High Court arises out of a suit brought by the State of Bombay (respondent) against the appellant for recovery of Rs."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 3406, "end_char": 3423, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nWanchoo, J.\n\nThis appeal on a certificate granted by the Bombay High Court arises out of a suit brought by the State of Bombay (respondent) against the appellant for recovery of Rs."}}, {"text": "State of Bombay", "label": "ORG", "start_char": 3460, "end_char": 3475, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nWanchoo, J.\n\nThis appeal on a certificate granted by the Bombay High Court arises out of a suit brought by the State of Bombay (respondent) against the appellant for recovery of Rs."}}, {"text": "April 27, 1948", "label": "DATE", "start_char": 3709, "end_char": 3723, "source": "ner", "metadata": {"in_sentence": "On April 27, 1948, at about midday, the vessel Padam belonging to the appellant arrived in the Dharamtar creek carrying a cargo of 3500 bags of manure )Veighing about 250 tons and laid anchor along- D side Dharamtar jetty lying on the Pen side of the creek on the Pen-Khopoli road."}}, {"text": "Padam", "label": "PETITIONER", "start_char": 3753, "end_char": 3758, "source": "ner", "metadata": {"in_sentence": "On April 27, 1948, at about midday, the vessel Padam belonging to the appellant arrived in the Dharamtar creek carrying a cargo of 3500 bags of manure )Veighing about 250 tons and laid anchor along- D side Dharamtar jetty lying on the Pen side of the creek on the Pen-Khopoli road."}}, {"text": "April 28, 1948", "label": "DATE", "start_char": 4804, "end_char": 4818, "source": "ner", "metadata": {"in_sentence": "This damage was found on the next day, i.e., April 28, 1948."}}, {"text": "May 12, 1948", "label": "DATE", "start_char": 4916, "end_char": 4928, "source": "ner", "metadata": {"in_sentence": "An estimate for special repairs of the damage done was prepared soon after and was submitted on May 12, 1948 to the Executive Engineer."}}, {"text": "Lodge Holes Colliery Co. Limited", "label": "ORG", "start_char": 8671, "end_char": 8703, "source": "ner", "metadata": {"in_sentence": "Apart from the fact that the case relied upon by the High Court has been partly overruled in the Lodge Holes Colliery Co. Limited's case(2 ), we have been unable to find therein the principle which the High Court has deduced from the case of Wednesbury Corporation(1 )."}}, {"text": "Wednesbury Corporation(1 )", "label": "ORG", "start_char": 8816, "end_char": 8842, "source": "ner", "metadata": {"in_sentence": "Apart from the fact that the case relied upon by the High Court has been partly overruled in the Lodge Holes Colliery Co. Limited's case(2 ), we have been unable to find therein the principle which the High Court has deduced from the case of Wednesbury Corporation(1 )."}}, {"text": "Cozens-Hardy", "label": "JUDGE", "start_char": 8945, "end_char": 8957, "source": "ner", "metadata": {"in_sentence": "Learned counsel for the respondent, State is also unable to point out any passage in the judgment of Cozens-Hardy L.J. which lays down C the proposition in the form in which the High Court has stated it."}}, {"text": "Patel", "label": "WITNESS", "start_char": 11422, "end_char": 11427, "source": "ner", "metadata": {"in_sentence": "Nothing has been brought out in the evidence B of Patel who prepared the estimate and of the Sub Divisional\n\nOfficer who supervjsed it to show that the estimate of Rs."}}, {"text": "SUPRBMB COURT", "label": "COURT", "start_char": 13801, "end_char": 13814, "source": "ner", "metadata": {"in_sentence": "For the same reason the fact that the State might not have \"spent the whole amount by the time the trial court came to give its judgment or the fact that\n\nSUPRBMB COURT REPORTS\n\n[1965] 2 S.C.R.\n\na bridge was going up and the jetty might not thereafter be required A. has no relevance on the question of damage done on April 27, 1948, though the former may affect the date from which interest may be awarded."}}]}
{"document_id": "1965_2_705_712_EN", "year": 1965, "text": "BRU KISHORE GUPTA v.\n\nVISHWAMITRA KAPUR\n\nJanuary 8, 1965\n\n[P. B. GA.TENDRAGADKAR, C.J., K. N. WANCHOO AND\n\nJ. C. SHAH, JJ.] Delhi & Ajmer Rent Control Act, 1952-Constructlon of unauthorised structures-Suit for ejectment-Removal of structures-pending proceedings-Whether court could grant relief-Repeal of the 1952 Act by Delhi Rent Control Act, 1958-Sectlons 57(2) & 14(1) of new Act-- Scope of.\n\nIn each of the two appeals before the court, suits had been filed by landlords under the Delhi and Ajmer Rent Control Act, 1952, for ejectment on the ground that the tenants had erected certain structures with\n\nout the authority of the landlords and in violation of the conditions of lease between the landlord and the concerned authorities.\n\nHowever, in both these cases the tenants had removed the offending structures during the pendency of the suits and the question for decision in both the cases was whether the tenant could still be ejected after be had removed the authorised structures and there was no further danger to the landlords' leases being forfeited.\n\nIt was contended on behalf of the landlords that once a breach bad Ileen committed by a tenant within the meaning of cl. (k) of the pro\\iso to s. 13(1) of the 1952 Act, he was liable to be ejected even though the landlord may never have given him notice about the breach and may not even have required him to remove it; and that his liability to ejectment would continue even if he had removed the offending structure before JC the filing of the suit or while it was pending. Furthermore, by virtue of the provisions of s. 57(2) of the Delhi Rent Control Act, 1958, (which repealed the 1952 Act), these two appeals fell to be governed by cl. (k) of the proviso to s. 13 (1) of the 1952 Act and not by cl. (k) of proviso to s 14(1) of 1958 Act or bys. 14(11) of that Act which made 1t possible fur the Controller not to make an order of eviction if the tenant complied with any requirements specified by the Controller; this was so becawe the first proviso to s. 57(2) of the 1958 Act which required that in certain r circumstances regard shall be bad to the 1958 Act, was not applicable to these 1wo cases, ·\n\nHELD : ( i) While considering the scope of the 6rst proV!So to s. 57(2), it was held in Karam Singh v. Sri Pratap Chand, A.I.R. 1964 S.C. 1305 that where, in the 1958 Act, there was a radical departure from the 1952 Act, the latter Act would continue to apply to pending proceedings; but where the 1958 Act bad slightly modified or clarified G the previous provisions, then these modifications or clarifications would apply. Section 14(11) of the 1958 Act did not provide a radical departure from the provisions of the 1952 Act. because when the latter Act was in force, it would have been possible for the court in a suit based on\n\ncl. (k) of the proviso to s. 13(1) to give relief against forfeiture in a proper case on the analogy of s. 114A of the Transfer of Property Act where the tenant bas removed the offending structure before the suit was filed; or even where he bad done so during the pendencv of the suit if reasonable H time was not allowed in the notice contemplated by cl. (k) of the pro\\iso to s. 13(1). Whens. 14(11) of the 1958 Act gave power to the Controller to give relief to the tenant under the conditions mel)tioned therein, it was in fact clarifying and slightly modifying what the court could\n\nSUPRBMB COURT\n\nREPORTS\n\n[1965] 2 S.C.R.\n\nalready do under the 1952 Act. Therefore, regard could be had to the 1t. provisions of s. 14( 11) of the 1958 Act and relief granted to the tenants in both appeals.\n\n(710 E-F; 711 F-H; 712 C-E]\n\n(ii) Under the 1952 Act, the language of the proviso to s. 13(1) was imperative and laid down that nothing in the Act applied when various clquses of the proviso were satisfied.\n\nAlthough the language of the proviso to s. 14(1) of the 1958 Act is not so imperative, there is no difference in substance.\n\nWhere the requirements of the proviso under B the 1958 Act are satisfied, the Controller has to pass a decree for ejectment unless there is provision otherwise in s. 14. (709 G-H; 910 A-Bl\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 879 of 1962 etc.\n\nAppeals by special leave from the judgment and .decrees dated C January 18, 1961, and December 13, 1960 of the Punjab High Court Circuit Bench at Delhi, in Civil Revision No. 13-D of 1958 and Civil Revision Case No. 592-D of 1957.\n\nM.S.K. Sastri and M. S. Narasimhan, for the appellant (in C.A. No. 121/63) M. C. Setalvad, S. Murty and B. P. Maheshwari, for the D appellants (in C.A. No. 879 of 1962) and respondents (in C.A.\n\nNo. 121 of 1962) Raghbir Singh and M. I. Khowaja, for respondent (in C.A.\n\nNo. 879 of 1962).\n\nThe Judgment of the Court was delivered by E\n\nWanchoo, J.\n\nThese two appeals by special leave from two judgments of the Punjab High Court raise a common question with respect to the application of the first proviso to s. 57 (2) of the Delhi Rent Control Act, No; 59 of 1958, (hereinafter referred to as the present Act).\n\nThey arise from decisions of two learned ll Single Judges in revision applications under the Delhi and Ajmer Rent Control Act, No. 38 of 1952 (hereinafter referred to as the 1952 Act.) In one of them (C.A. 879) the learned Judge has held that in view of the first proviso to s. 57 (2), a decree for ejectment against the tenant could not be passed. In the other appeal (No. 121), the other learned Judge has held that the tenant is liable to G ejectment in spite of the first proviso to s. 57 (2) of the present Act.\n\nIt will thus be seen that the two decisions are contradictory and raise the question as to when the first proviso to s. 57 (2) precisely applies to facts similar to the facts in the present two appeals which are more or less the same.\n\nBefore we consider the question thus raised before us, we may briefly indicate the facts in the two appeals. In appeal No.\n\nA 879 of 1962, the landlord sued for ejectment on the ground that the tenant had erected certain structures in the shape of closing an open verandah and erecting a partition therefu. On account of this, notices were sent to the landlord as well as to the tenant by the authorities concerned to remove the unauthorised structures. As however the tenant did not do so, suit for ejectment was filed by B the landlord under cl. (k) to the proviso to s. 13 (1) of the 1952 Act, which ran as follows :-\n\n\"13 (1). Notwithstanding ythfug to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):\n\nProvided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the court is satisfied-\n\n(k) that the tenant has, whether before or after the commencement of this Act, \"caused or permitted to be caused substantial damage to the premises, or notwithstanding previous notice has used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delbi Improvement Trust while giving him a lease of the land on which the premises are situated;\"\n\nThe lease in favour of the landlord by the Government provided that F \"the lessee will not without the previous consent in writing of the Chief Commissioner of Delbi or such officer or body as the lessor or the Chief Commissioner of Delhi may authorise in this behalf erect or suffer to be erected on any part of the said demised premises any buildings other than and except the buildings erected thereon at the date of these presents.\" The case of the landlord G was that the tenant had made structures without authority which made him liable to ejectment under cl. (k). During the pendency of the suit, however, the tenant had removed the offending structures with the result that there was no longer any breach of the condition of the lease.\n\nH In C.A. 121 of 1963, also the facts were similar and the suit was filed on the basis of cl. (k) of proviso to s. 13 (1) of the 1952 Act. In this case also the tenant had closed the verandah without\n\nthe permission of the authorities concerned and notice was given A to the landlord on that count by the authorities and the landlord in his turn asked the tenant to remove the unauthorised structure.\n\nWhen the tenant did not do so, the landlord filed the suit. It appears that during the trial of the suit, the tenant made certain changes in the structure and removed the glazing and instead he closed the verandah with wire-gauze net. It was stated by a wit- B ness from the office of the Land Development Officer that the fixing of wire-gauze net was not against the clause as to unauthorised construction which was the same in the case of this lease as in the case of the lease in the other appeal. It may be added that no further action has been taken by the Land Development Officer C after removal of the glazing and after fixing of the wire-gauze net.\n\nIn the circumstances the question that arose for decision in both the cases was whether the tenant could still be ejected after he had removed the unauthorised structure and there was no further danger to the landlord's lease being forfeited, and in that con- D nection the application of the first proviso to s. 57 (2) of the present Act arose. As we have already indicated, one of the learned Judges held that the tenant could be ejected while the other held that he could not.\n\nIn order to decide the point that has been raised before us it is necessary to set out the corresponding section in the present Act\n\nJI: which is s. 14. The relevant part of this section is in these terms :-\n\n\"14. (1). Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the land- :r lord against a tenant :\n\nProvided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely :- G\n\n(k) that the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government_or the Delhi Development Authority or the H Muriicipal Corporation of Delhi while giving him a lease of the land on which the premises are situate;\"\n\n\"14 (11) No order for the recovery of possession of any premises shall be made on the ground specified in clause (k) of the proviso to sub-section (1), if the tenant, within such time as may be specified in this behalf by the Controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.\"\n\nSection 57(1) repeals the 1952 Act.\n\nSection 57(2) which is material for our purpose reads thus :-\n\n\"57 (2) Notwithstanding such repeal, all suits and other proceedings under the said Act pending, at the commencement of this Act, before any court or other authority shall be continued and disposed of in accordance with the provisions of the said Act, as if the said Act had continued in force and this Act had not been passed;\n\n\"Provided that in any such suit or proceeding for the fixation-ef standard rent or for the eviction of a tenant from any premises to which section 54 does not apply, the court or other authority shall have regard to the provisions of this Act.\n\nIt will be seen from a comparison of the 1952 Act and the present Act with respect to ejectment on the ground contained in cl. (k) of the first proviso that there are some differences in the language JI of the proviso to s. 13(1) of the 1952 Act and of the proviso to s. 14(1) of the present Act.\n\nIn the first place the proviso to s. 13(1) of the 1952 Act lays down that nothing in sub-section (1) shall apply to any suit or other proceeding for such recovery of possession while the proviso to s. 14 (1) lays down that the Controller may on an application made to him make an order for G the recovery of possession of the premises on one or more of the grounds specified. The first difference is that the forum is changed from the civil court to the Controller; but that is a question of jurisdiction which we need not consider here. The second dillerence is that while under the 1952 Act the language of the proviS(I was imperative and laid down that nothing in the Act applied H when the various clauses of the proviso were satisfied, the language -Of the proviso to s. 14 (1) of the present Act is not so imperative.\n\nEvett so, we are of opinion that there is no difference in substance,\n\nSUPREME\n\nCOURT Rl\\PORTS\n\n\nfor where the requirements of the proviso are satisfied under the pre- A. sent Act the Controller has to pass a decree for ejectment unless there is provision otherwise in s. 14 which will be found with reference to various clauses in the proviso as for examples. 14(2), 14 ( 10) and 14 (11 ) . Another difference -for our purjioses between s. 13 of the 1952 Act and s. 14 of .the present Act is the introduction of sub-s. (11) of s. 14 in the present Act while B there was nothing in the 1952 Act corresponding to it. The main argument on behalf of the landlords in the two cases is based on this difference between the two Acts and it is contended that the introduction of sub-s. (11) is a radical departure and therefore the language of the first proviso to s. 57(2) would not apply to the C present situation.\n\nNow the first proviso to s. 57(2) came up for interpretation before this Court in Karam Singh v. Sri Pratap Chand('). In that case the majority held that the proviso must be read harmoniously with the substantive provision contained in sub-s. (2) and the only D way of harmonising the two was to read the expression \"shall have regard to the provisions of this Act\" as merely meaning that where the new Act has slightly modified c; ir clarified the previous provisions, these modifications and clarifications should be applied. It was further held that these words did not take away what was provided by sub-s. (2) and that ordinarily the old Act would apply E to pending proceedings.\n\nIn substance therefore Karamsingh's case(') decided that where in the present Act there is a radical departure from the 1952 Act, the 1952 Act will continue to apply to pending proceedings, but where the present Act had slightly modified or clarified the previous provisions these modifications and clarifications should be applied.\n\nThe question that falls for consideration in the present appeals therefore is whether the addition of sub-s. O 1) in s. 14 is a radical departure from what s. 13 (1) provided or whether it is a clarification and/ or modification of the previous provision. Whether sub- G s. ( 11 ) is a clarification and/ or modification of the position as existed when the 1952 Act was in force would depend upon whether when that Act was in force it was open to a court to give relief to a tenant where the offending structure had been removed by him during the pendency of the suit. In this connection s. 114-A of the Transfer of Property Act (No .. 4 of 1882) may be referred H to. Section 114-A runs as follows :-\n\n4 s.c. 1305.\n\n\"114-A. Relief against forfeiture in certain other cases.-Where a lease of ii:nmovable property has determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may reenter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing-\n\n(a) specifying the particular breach complained of; and ·\n\n(b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy.\n\n\"Nothing in this section shall apply to an express condition against the assigning, under-letting, parting with the possession, or disposing, of the property leased, or to an express condition relating to forfeiture in case of nonpayment of rent.\"\n\nIt will be seen that s. 114-A gives power to court to give relief to the tenant against forfeiture where it holds that the landlord did E not give reasonable time to the tenant to remedy the breach. In such case it can dismiss the suit as not maintainable. It is true that s. 114-A would not in specific terms apply to cases like the present; but ejectment on the ground specified in cl. (k) to the proviso to s. 13 ( 1) of the 1952 Act was somewhat analogous to forfeiture on breach of an express condition of a lease for it also F required previous notice to the tenant before the suit is filed. (see Uma Kumari v. Jaswant Rai Chopra) (1). We do not think that it can be said that the 1952 Act forbade t}le court from granting relief where the offending structures were removed by the tenant even during the pendency of the suit for ejectment. What is reasonable time within which the breach should be remedied is always a G question of fact and we think it would have been possible for the court in a suit based on cl. (k) of the proviso to s. 13 ( 1) to give relief against forfeiture in a proper case where the tenant had removed the offending structure before the suit was filed or even during the pendency of the suit if reasonable time was not allowed in the notice contemplated by cl. (k) of the proviso to s. 13 (I). On H the interpretation pressed before us on behalf of the landlords in the two appeals it is argued that once the breach has been com-\n\n(!) C.A. 246of1961, decided on 16-2-1962.\n\n--:.;-\n\nmitted by the tenant by making an unauthorised structure he is A liable to ejectment even though the landlord may never have given him notice about the breach and may not even have required him to remove it and that his liability to ejectment would continue even if he had removed the offending structure before the filing of the suit. We do not think that such an interpretation can be given to the provisions of an ameliorating statute like the 1952 Act, when B it is clear that even under s. 114-A of the Transfer of Property Act, the court has power to give relief against forfeiture in the circumstances mentioned above. We are therefore of opinion that even under the 1952 Act it would have been open to a court to give relief to the tenant who had remedied the breach either before C the suit was filed or even after the suit had been filed depending upon what the court considered to be reasonable time. Therefore when sub-s. (11) gave power to the Controller to give relief to the tenant under conditions mentioned therein it was in fact clarifying what the court could do under the 1952 Act on the analogy of\n\n&. 114-A of the Transfer of Property Act and also modifying it D slightly. Incidentally we may add that the addition of sub-ss. (10) and (11) may explain the change in the form of the language of the proviso to s. 14 ( 1) of the present Act to which we have already referred. We are therefore of opinion that the introduction of sub-s. (11) in s. 14 was clarificatory and slightly modificatory of the power of the court under the 1952 Act to relieve against for- E feiture where the suit was brought without giving the tenant reasonable time in the notice contemplated in cl. (k) of the proviso to s. 13{1). In this view C.A. 879 of 1962 must fail and is hereby dismissed. C.A. 121 of 1963 succeeds and is hereby allowed and the plaintiff-respondents' suit is dismissed. As in both these cases the tenant has succeeded mainly on account of some change in I law after the suit had been filed, we order parties to bear their own costs throughout in both the appeals.\n\nAppeal No. 879 dismiised and Appeal No. 121 allowed.", "total_entities": 78, "entities": [{"text": "BRU KISHORE GUPTA", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "BRIJ KISHORE GUPTA", "offset_not_found": false}}, {"text": "VISHWAMITRA KAPUR", "label": "RESPONDENT", "start_char": 22, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "VISHWAMITRA KAPUR", "offset_not_found": false}}, {"text": "January 8, 1965", "label": "DATE", "start_char": 41, "end_char": 56, "source": "ner", "metadata": {"in_sentence": "BRU KISHORE GUPTA v.\n\nVISHWAMITRA KAPUR\n\nJanuary 8, 1965\n\n[P. B. GA.TENDRAGADKAR, C.J., K. N. WANCHOO AND\n\nJ. C. SHAH, JJ.]"}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 88, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "C. SHAH, JJ.", "label": "JUDGE", "start_char": 110, "end_char": 122, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Ajmer Rent Control Act, 1952", "label": "STATUTE", "start_char": 132, "end_char": 160, "source": "regex", "metadata": {}}, {"text": "Act by Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 314, "end_char": 349, "source": "regex", "metadata": {}}, {"text": "Delhi and Ajmer Rent Control Act, 1952", "label": "STATUTE", "start_char": 486, "end_char": 524, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 13(1)", "label": "PROVISION", "start_char": 1210, "end_char": 1218, "source": "regex", "metadata": {"linked_statute_text": "the Delhi and Ajmer Rent Control Act, 1952", "statute": "the Delhi and Ajmer Rent Control Act, 1952"}}, {"text": "s. 57(2)", "label": "PROVISION", "start_char": 1587, "end_char": 1595, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 1603, "end_char": 1631, "source": "regex", "metadata": {}}, {"text": "s. 13", "label": "PROVISION", "start_char": 1731, "end_char": 1736, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "s 14(1)", "label": "PROVISION", "start_char": 1790, "end_char": 1797, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "s. 57(2)", "label": "PROVISION", "start_char": 2026, "end_char": 2034, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "s. 57(2)", "label": "PROVISION", "start_char": 2240, "end_char": 2248, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "Section 14(11)", "label": "PROVISION", "start_char": 2602, "end_char": 2616, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "s. 13(1)", "label": "PROVISION", "start_char": 2836, "end_char": 2844, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 114A", "label": "PROVISION", "start_char": 2914, "end_char": 2921, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 2929, "end_char": 2953, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 13(1)", "label": "PROVISION", "start_char": 3188, "end_char": 3196, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14( 11)", "label": "PROVISION", "start_char": 3526, "end_char": 3536, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13(1)", "label": "PROVISION", "start_char": 3690, "end_char": 3698, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 3853, "end_char": 3861, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 4101, "end_char": 4106, "source": "regex", "metadata": {"statute": null}}, {"text": "M.S.K. Sastri", "label": "OTHER_PERSON", "start_char": 4426, "end_char": 4439, "source": "ner", "metadata": {"in_sentence": "M.S.K. Sastri and M. S. Narasimhan, for the appellant (in C.A. No."}}, {"text": "M. S. Narasimhan", "label": "LAWYER", "start_char": 4444, "end_char": 4460, "source": "ner", "metadata": {"in_sentence": "M.S.K. Sastri and M. S. Narasimhan, for the appellant (in C.A. No."}}, {"text": "M. C. Setalvad", "label": "LAWYER", "start_char": 4501, "end_char": 4515, "source": "ner", "metadata": {"in_sentence": "121/63) M. C. Setalvad, S. Murty and B. P. Maheshwari, for the D appellants (in C.A. No."}}, {"text": "S. Murty", "label": "LAWYER", "start_char": 4517, "end_char": 4525, "source": "ner", "metadata": {"in_sentence": "121/63) M. C. Setalvad, S. Murty and B. P. Maheshwari, for the D appellants (in C.A. No."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 4530, "end_char": 4546, "source": "ner", "metadata": {"in_sentence": "121/63) M. C. Setalvad, S. Murty and B. P. Maheshwari, for the D appellants (in C.A. No."}}, {"text": "Raghbir Singh", "label": "LAWYER", "start_char": 4638, "end_char": 4651, "source": "ner", "metadata": {"in_sentence": "121 of 1962) Raghbir Singh and M. I. Khowaja, for respondent (in C.A.\n\nNo."}}, {"text": "M. I. Khowaja", "label": "LAWYER", "start_char": 4656, "end_char": 4669, "source": "ner", "metadata": {"in_sentence": "121 of 1962) Raghbir Singh and M. I. Khowaja, for respondent (in C.A.\n\nNo."}}, {"text": "E\n\nWanchoo", "label": "JUDGE", "start_char": 4758, "end_char": 4768, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by E\n\nWanchoo, J.\n\nThese two appeals by special leave from two judgments of the Punjab High Court raise a common question with respect to the application of the first proviso to s. 57 (2) of the Delhi Rent Control Act, No; 59 of 1958, (hereinafter referred to as the present Act)."}}, {"text": "s. 57", "label": "PROVISION", "start_char": 4933, "end_char": 4938, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi and Ajmer Rent Control Act", "label": "STATUTE", "start_char": 5130, "end_char": 5162, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 57", "label": "PROVISION", "start_char": 5312, "end_char": 5317, "source": "regex", "metadata": {"linked_statute_text": "They arise from decisions of two learned ll Single Judges in revision applications under the Delhi and Ajmer Rent Control Act", "statute": "They arise from decisions of two learned ll Single Judges in revision applications under the Delhi and Ajmer Rent Control Act"}}, {"text": "s. 57", "label": "PROVISION", "start_char": 5524, "end_char": 5529, "source": "regex", "metadata": {"linked_statute_text": "They arise from decisions of two learned ll Single Judges in revision applications under the Delhi and Ajmer Rent Control Act", "statute": "They arise from decisions of two learned ll Single Judges in revision applications under the Delhi and Ajmer Rent Control Act"}}, {"text": "s. 57", "label": "PROVISION", "start_char": 5672, "end_char": 5677, "source": "regex", "metadata": {"linked_statute_text": "They arise from decisions of two learned ll Single Judges in revision applications under the Delhi and Ajmer Rent Control Act", "statute": "They arise from decisions of two learned ll Single Judges in revision applications under the Delhi and Ajmer Rent Control Act"}}, {"text": "s. 13", "label": "PROVISION", "start_char": 6361, "end_char": 6366, "source": "regex", "metadata": {"statute": null}}, {"text": "Delbi Improvement Trust", "label": "ORG", "start_char": 7149, "end_char": 7172, "source": "ner", "metadata": {"in_sentence": "Notwithstanding ythfug to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):\n\nProvided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the court is satisfied-\n\n(k) that the tenant has, whether before or after the commencement of this Act, \"caused or permitted to be caused substantial damage to the premises, or notwithstanding previous notice has used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delbi Improvement Trust while giving him a lease of the land on which the premises are situated;\"\n\nThe lease in favour of the landlord by the Government provided that F \"the lessee will not without the previous consent in writing of the Chief Commissioner of Delbi or such officer or body as the lessor or the Chief Commissioner of Delhi may authorise in this behalf erect or suffer to be erected on any part of the said demised premises any buildings other than and except the buildings erected thereon at the date of these presents.\""}}, {"text": "Delbi", "label": "GPE", "start_char": 7408, "end_char": 7413, "source": "ner", "metadata": {"in_sentence": "Notwithstanding ythfug to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):\n\nProvided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the court is satisfied-\n\n(k) that the tenant has, whether before or after the commencement of this Act, \"caused or permitted to be caused substantial damage to the premises, or notwithstanding previous notice has used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delbi Improvement Trust while giving him a lease of the land on which the premises are situated;\"\n\nThe lease in favour of the landlord by the Government provided that F \"the lessee will not without the previous consent in writing of the Chief Commissioner of Delbi or such officer or body as the lessor or the Chief Commissioner of Delhi may authorise in this behalf erect or suffer to be erected on any part of the said demised premises any buildings other than and except the buildings erected thereon at the date of these presents.\""}}, {"text": "Delhi", "label": "GPE", "start_char": 7481, "end_char": 7486, "source": "ner", "metadata": {"in_sentence": "Notwithstanding ythfug to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):\n\nProvided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the court is satisfied-\n\n(k) that the tenant has, whether before or after the commencement of this Act, \"caused or permitted to be caused substantial damage to the premises, or notwithstanding previous notice has used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delbi Improvement Trust while giving him a lease of the land on which the premises are situated;\"\n\nThe lease in favour of the landlord by the Government provided that F \"the lessee will not without the previous consent in writing of the Chief Commissioner of Delbi or such officer or body as the lessor or the Chief Commissioner of Delhi may authorise in this behalf erect or suffer to be erected on any part of the said demised premises any buildings other than and except the buildings erected thereon at the date of these presents.\""}}, {"text": "s. 13", "label": "PROVISION", "start_char": 8106, "end_char": 8111, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57", "label": "PROVISION", "start_char": 9365, "end_char": 9370, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 9682, "end_char": 9687, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Development Authority", "label": "ORG", "start_char": 10381, "end_char": 10408, "source": "ner", "metadata": {"in_sentence": "Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the land- :r lord against a tenant :\n\nProvided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely :- G\n\n(k) that the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government_or the Delhi Development Authority or the H Muriicipal Corporation of Delhi while giving him a lease of the land on which the premises are situate;\"\n\n\"14 (11) No order for the recovery of possession of any premises shall be made on the ground specified in clause (k) of the proviso to sub-section (1), if the tenant, within such time as may be specified in this behalf by the Controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.\""}}, {"text": "H Muriicipal Corporation of Delhi", "label": "ORG", "start_char": 10416, "end_char": 10449, "source": "ner", "metadata": {"in_sentence": "Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the land- :r lord against a tenant :\n\nProvided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely :- G\n\n(k) that the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government_or the Delhi Development Authority or the H Muriicipal Corporation of Delhi while giving him a lease of the land on which the premises are situate;\"\n\n\"14 (11) No order for the recovery of possession of any premises shall be made on the ground specified in clause (k) of the proviso to sub-section (1), if the tenant, within such time as may be specified in this behalf by the Controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.\""}}, {"text": "Section 57(1)", "label": "PROVISION", "start_char": 10960, "end_char": 10973, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 57(2)", "label": "PROVISION", "start_char": 10997, "end_char": 11010, "source": "regex", "metadata": {"statute": null}}, {"text": "section 54", "label": "PROVISION", "start_char": 11528, "end_char": 11538, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13(1)", "label": "PROVISION", "start_char": 11855, "end_char": 11863, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 11902, "end_char": 11910, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13(1)", "label": "PROVISION", "start_char": 11966, "end_char": 11974, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 12130, "end_char": 12135, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 12705, "end_char": 12710, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 13026, "end_char": 13031, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 13195, "end_char": 13200, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 13221, "end_char": 13226, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 13285, "end_char": 13290, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57(2)", "label": "PROVISION", "start_char": 13615, "end_char": 13623, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57(2)", "label": "PROVISION", "start_char": 13694, "end_char": 13702, "source": "regex", "metadata": {"statute": null}}, {"text": "Karamsingh", "label": "OTHER_PERSON", "start_char": 14378, "end_char": 14388, "source": "ner", "metadata": {"in_sentence": "In substance therefore Karamsingh's case(') decided that where in the present Act there is a radical departure from the 1952 Act, the 1952 Act will continue to apply to pending proceedings, but where the present Act had slightly modified or clarified the previous provisions these modifications and clarifications should be applied."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 14806, "end_char": 14811, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 14845, "end_char": 14850, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 114", "label": "PROVISION", "start_char": 15277, "end_char": 15283, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 15293, "end_char": 15317, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 114", "label": "PROVISION", "start_char": 15358, "end_char": 15369, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 114", "label": "PROVISION", "start_char": 16291, "end_char": 16297, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 114", "label": "PROVISION", "start_char": 16543, "end_char": 16549, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 16680, "end_char": 16685, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 17314, "end_char": 17319, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 17586, "end_char": 17591, "source": "regex", "metadata": {"statute": null}}, {"text": "16-2-1962", "label": "DATE", "start_char": 17765, "end_char": 17774, "source": "ner", "metadata": {"in_sentence": "C.A. 246of1961, decided on 16-2-1962."}}, {"text": "s. 114", "label": "PROVISION", "start_char": 18277, "end_char": 18283, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 18293, "end_char": 18317, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 18921, "end_char": 18945, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 14", "label": "PROVISION", "start_char": 19116, "end_char": 19121, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 19249, "end_char": 19254, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 19503, "end_char": 19508, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_2_713_719_EN", "year": 1965, "text": "PRABHAKAR RAMAKRISHNA JODH v.\n\nA. L. PANDE AND ANOTHER\n\n/anuary 12, 1965\n\nB ( K. SUBBA RAo, RAGHUBAR DAYAL, R. S. BACHAWAT\n\nAND V. RAMASWAMI, JJ.)\n\nUniversity 6/ Saugar Act, 194&-College Code (Ordinance 20)-Affi-- /Jated College--Teacher's pay scales and security of tenure--Whether within •taJutory power, or contractual relationship.\n\nThe appellant was a teacher in a college, affiliated to the University C of Saugar and managed by the Governing Body established under cl. 3 of the 'College Code' which is an ordinance made under the provisions of the University of Saugar Act. The Principal of the College served the appeUant a charge sheet and asked him to submit bis explanation. The appellants denied all the charges and requested the particulars on which one of the charges was based. The appellant alleged that this was not 1upplied and the Governing Body terminated bis services without holding any enquiry. Thereafter the appeUant moved the High Court for a writ D quashing the order of the Governing Body and for bis reinstatement; bis case was that the Governing Body bad made the order of discharge in violation of the provisions of the 'College Code'.\n\nThe High Court rejected the contention of the appeUant on the ground that the conditions of service of the appellant were governed not by the 'College Code' but by the contract made between the Governing Body and the appellant.\n\nThe High Court also took the view that provisions of 'College Code' were E merely conditions prescribed for affiliation of Colleges and no legal rights were created by the 'College Code' in favour of the teachers of the a.ffiliated colleges as agail)st the Governing Body.\n\nIn appeal by special leave.\n\nHELD : That the view taken by the High Court was erroneous.\n\nThe provisions of Ordinance 20, otherwise called the ''College Code\" have the force of law. It confers legal rights on the teachers of the affi- F liated coUeges and it is not a correct proposition to say that the \"College Code\" merely regulates the legal relationship between the affiliated Colleges and University alone. Th provisions of the \"College Code\" relating to the pay scale of teachers and their security of tenure properly faU within the statutory power of affiliation granted to the University under the Act.\n\n[718 B-E] Vedraj Bhawanidas Dua v. Damoh Arts College, 1961 G M.P.L.J. 239, overruled.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 137 of 1964.\n\nAppeal by special leave from the judgment and order, dated February 28, 1963, of the Madhya Pradesh High Court in Misc.\n\nH Petition No. 236 of 1960.\n\nThe appellant appeared in person.\n\nS. N. Bhandari and Anand Prakash, for the respondent.\n\nThe Judgment of the Court was delivered by Ramaswami J.\n\nThis appeal is brought, by special leave, against the judgment of the High Court of Judicature of Madhya Pradesh dated February 28, 1962 dismissing the petitii>n of the appellant for grant of a writ under Art. 226 of the Constitution of India.\n\nThe appellant was appointed as a lecturer in Sanskrit in the year 1955 in the S.B.R. College (Sheobhagwan Rameswarlal Arts College) , Bilaspur and he was confirmed in that post in the year\n\n1957. The College is affiliated to the University of Sau gar under\n\nthe provisions of the University of Saugar Act 1946 (hereinafter called the Act) and is managed by the Governing Body established C under Clause 3 of the 'College Code' which is an Ordinance made under the provisions of the Act. The College is maintained out of the funds of Sheobhagwan Rameswarlal Charitable Trust, Biiaspur and is aided by the State Government. On June 2, 1960 the Principal of the College served the appellant, by post, a charge D sheet consisting of three charges and the appellant was asked to\n\nubmit explanation within a week's time.\n\nThe charges were as follows:-\n\n\"(1) That you have deliberately based your representation dated 28-12-1959 on false fact~ and misstatements and have committed acts of insubordination amounting to misconduct by making counter-charges against the Governing Body. ( 2) That you have not been taking active interest in the extra-curricular activities of the College and have failed to cooperate with the authorities as required by the conditions of service.\n\n(3) That you have deliberately avoided to execute your service , bond which every teacher of the institution is required to do. This non-fulfilment of the conditions of your appointment order No. FC/56-57 dated 1-7-1956 amounts to breach of the service rules of the college.\"\n\nThe appellant submitted explanation d.enying all the charges and requested the Governing Body to supply particulars on which the first charge was based. The allegation of the appellant is that he was not supplied with the required particulars and that the Governing Body terminated the services of the appellant with effect from H July 1, 1960 without holding any enquiry~ The anneliant made a representation to the Governing Body on July 5, 1960 requesting\n\nA it to reconsider the whole matter. The Governing Body rejected this representation also.\n\nThe appellant thereafter moved the High Court of Judicature of Madhya Pradesh for grant of a writ of certiorari under Art. 226 of the Constitution of India to quash the order of the Governing Body dated June 30, 1960 terminating the services of the appellant, and also for the grant B of a writ of mandamus reinstating the appellant to his post as a confirmed lecturer of the College. The case of the appellant was that the Governing Body had made the order of discharge in violation of the provisions of Clause S(vi)(a) of the 'College Code' and that the order of the Governing Body was, therefore, ultra C vires and illegal. The High Court rejected the contention of the appellant on the ground that the conditions of service of the appellant were governed not by the \"College Code\" but by the contract made between the Governing Body and the appelh, nt.\n\nThe High Court also took the view that provisions of the \"College Code\" were merely conditions prescribed for affiliation of colleges D and no legal rights were created by the \"College Code\" in favour of lecturers of the affiliated colleges as against the Governing Body.\n\nIn taking this view the High Court followed its previous decision in Vedraj Bhawanidas Dua v. Damoh Arts College(') in which it was held that the \"College Code\" being merely conditions prescribed for affiliating Colleges, the University may at its option E enforce or relax those conditions and the only sanction for fulfil. ment of those conditions is disaffiliation.\n\nThe High Court accordingly did not go into the question whether the Governing Body had violated the procedure prescribed in Clause S(vi)(a) but dismissed the application of the appellant for the grant of writ on the ground that it was only breach of contract and the F proper recourse of the petitioner was to bring a suit in the Civil Court for damages for wrongful breach of contract and the appellant cannot avail himself of the extraordinary remedy l!Ilder Art. 226 of the Constitution.\n\nThe main question presented for determination in this case is G whether the High Court was right in taking the view that the\n\n\"College Code\" merely prescribed conditions for affiliation of colleges and no legal rights were created by the \"College Code\" with regard to teachers of affili!lted colleges.\n\nSection 2 (a) of the Act defines a \"College\" to mean \"an institu- H tion maintained by or admitted to the privileges of the University, by or under the provisions of this Act.\" Section 6 of the Act\n\n(i}~ 1991 M.P~ L.J. 239. -\n\nrefers to the powers of the University and s. 6(6) provides that A the University shall have the power \"to admit colleges to the privileges of the University and to recognise hostels under conditions which may be prescribed in the Statutes or Ordinances.\" Section 32 deals with Ordinances and is to the following effect :\n\n\"32. Subject to the provisions of this Act and the Statutes and in addition to all matters which, by this Act or the Statutes. are to be provided for by the Ordinances, the Ordinances may provide for all or any of the following matters, namely :-\n\n(a) the admission of students to the University;\n\n(b) the courses of study to be laid down for all degrees and diplomas of the University; ( c) the conditions under which students shall be admitted to the degree or diploma courses and to the examinations of the University and shall be eligible for degrees and diplomas; ( d) the levying of fees for residence in hostels maintained by the University; ( e) the fees to be charged for the enrolment of students, for attending courses of teaching in the University, for admission to the examinations, degrees and diplomas of the University and for the registration of graduates; ( f) the conditions subject to which persons may be recognised as qualified to give instruction in the University and colleges;\n\n(g) the conduct of examinations;\n\n(h) the term of office, duties and conditions of service of officers and teachers of the University in so far as these are, by or under this Act, subject to the Executive Council.\"\n\nSection 24(i) provides that the Executive Council shall admit colleges to the privileges of the University subject to the provisions\n\nof this Act and such conditions as may be prescribed in the Statutes.\n\nThe \"College Code\" is an Ordinance made under the provisions of s. 32 of the Act read withs. 6(6) of the Act and Clause 8 of the Ordinance deals with conditions of service of H teachers of affiliated colleges. Clause 8 (vi) of the \"College Code\" reads as follows :\n\nA \"8. (vi) The Governing Body of the College shall not tenninate the service or reduce the pay of any teacher confirmed in the service of the college :-\n\n(a) Without holding a full enquiry into the matter, the teacher concerned shall be given in writing a B statement of charges against him and afforded every possible opportunity of defending himself.\n\nHis previous rvice and character shall also be taken into consideration;\n\n(b) No decision for such termination of service, or reduction of pay shall have any effect unless passed by a majority of two-thirds of the members of the Governing Body;\n\n( c) At the request of the teacher concerned any difference or dispute either arising out of the contract, or, otherwise, shall be referred to a Tribunal of Arbitration consisting of the Vice-Chancellor, and two other persons appointed by the Executive Council of the University, one of whom shall possess a status not lower than that of a District Judge.\n\nThe decision of this Tribunal shall be final and binding on both the parties.\"\n\nClause 7 of the \"College Code\" states that all teachers of the colleges shall be appointed on a written contract in the form prescribed in Schedule A except in the case of teachers appointed temporarily for a period of one year or less.\n\nPara 9 of this agreement mentioned in Sch. A provides as follows :-\n\n\"9. After confirmation, the services of the party of the first part can be terminated only on the following grounds:- a. Wilful and persistant neglect of duty, b. Misconduct,\n\nc. Breach of any of the terms of contract, d. Physical or mental unfitness, e. Incompetence, f. Abolition of the pests :\n\nProvided firstly, that the plea of incompetence sitall not be used against the party of the first part after he has served the party of the second part for five years or more: USup./65-12\n\nSUP.REMB\n\nCOURT .REPOllTS\n\n[1965] 2 S.C.R.\n\nProvided, secondly, the services of the party of the A fiIBt part shall not be terminated under clause ( c) or\n\n(f) without the previous approval of Saugar University.\" It is not disputed on behalf of the respondents that the \"College Code\" has been made by the UniveIBity in exercise of B statutory power conferred by s. 32 and under s. 6 ( 6) of the Act.\n\nIt is also conceded on behalf of the respondents that the \"College Code\" is intra vlres of the pow= of the University contained in s. 32 read with s. 6 ( 6) of the Act. In our opinion, tho provisions of Ordinance 20, otherwise called the \"College Code\" have the force of law. It conf= legal rights on the teachers of the C affiliated colleges and it is not a correct proposition to say that the \"College Code\" merely regulates the legal relationship bCtween the affiliated colleges and the University alone. We do not agree with the High Court that the provisions of the \"College Code\" constitute power of management. On the contrary we are of the view that the provisions of the \"College Code\" relating to the D pay scale of teachers and their security of tenure properly fall within the statutory power of affiliation granted to the University under the Act. It is true that Clause 7 of the Ordinance provides that all teachers of affiliated colleges shall be appointed on a written contract in the form prescribed in Sch. A but that does E not mean that teach= have merely a contractual remedy against the Governing Body of the College. On the other hand, we are of opinion that the provisions of Clause 8 of the Ordinance relating to security of the tenure of teachers are ?art and parcel of the teachers' service conditions and, as we have already pointed out. the provisions of the \"College Code\" in this regard are validly F made by the Univ=ity in exercise of the statutory power and have, therefore, the force and effect of law. It follows, therefore. that the \"College Code\" create., leg; al rights in favour of teachers of affiliated colleges and the view taken by the High C, ourt is erroneous.\n\nIt was urged on behalf of the appellant in the next place that G there was violation of the procedure prescribed in Clause 8(vi) (a) of the \"College Code\" and the order of the Govemine; Body dated June 30, 1960 terminating the auoellant's services was illegal and ultra vires and must be quashed by p, rant of writ in the nature of certiorari.\n\nCounsel for the resoondents contended that there was no violation of the procedure ore.o; cribed under Clam:e 8(vi)\n\n(a) of the \"ColleP.:e Code\" and that the order of the Govemin!!.\n\nBody, dated June. 30, 1960 was not defective in law. Since the\n\nA question has not been investigated by the High Court we consider that it is necessary that this case should go back on remand to the High Court for deciding the question whether there was a violation of the procedure prescribed under Clause S(vi)(a) of the \"College Code\" and whether the order of the Governing Body, dated June 30, 1960 is consequently illegal and ultra vires and B whether the appellant is entitled to the grant of a writ under Art. 226 of the Constitution.\n\nWe should like to add that Counsel for the respondent raised two preliminary objections in the course of argument. The argument was stressed in the first place that the appellant had an c alternative remedy under Clause 8 (vi)( c) of the \"College Code\"\n\nwhich provides that the aggrieved teacher may request for a reference of the dispute to a Tribunal of Arbitration consisting of the Vice-Chancellor and two other persons appointed by the Executive Council of the University. It was contended on bdtalf of the respondents in the second place that the Governing Body D of the College was not a statutory body performing public duties\n\nand no writ in the nature of mandamus may, thereforo, be issued to the Governing Body of the College. On behalf of the respondents it was conceded that these objections were not pressed before the High Court.\n\nWe are, therefore, unable to entertain these preliminary arguments at this stage and they must be over-ruled.\n\nE For the reasons already expressed, we allow this appeal, set aside the judgment of the High Court, dated February 28, 1962 and order that the case should be remanded to the High Conrt for investigating the question whether there was a violation of the procedure contained in Clause 8 (vi) (a) of the \"College Code\" F and for final determination of the case in accordance with Jaw.\n\nParties will bear their own costs in this Court as well as in the High Court up to this stage.\n\nAppeal allowed.", "total_entities": 47, "entities": [{"text": "PRABHAKAR RAMAKRISHNA JODH", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "PRABHAKAR RAMAKRISHNA JODH", "offset_not_found": false}}, {"text": "A. L. PANDE AND ANOTHER", "label": "RESPONDENT", "start_char": 31, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "A. L. PANDE AND ANOTHER", "offset_not_found": false}}, {"text": "B ( K. SUBBA RAo", "label": "JUDGE", "start_char": 74, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL", "label": "JUDGE", "start_char": 92, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 108, "end_char": 122, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 128, "end_char": 145, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "cl. 3", "label": "PROVISION", "start_char": 472, "end_char": 477, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 2372, "end_char": 2400, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 2519, "end_char": 2544, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order, dated February 28, 1963, of the Madhya Pradesh High Court in Misc."}}, {"text": "S. N. Bhandari", "label": "OTHER_PERSON", "start_char": 2619, "end_char": 2633, "source": "ner", "metadata": {"in_sentence": "S. N. Bhandari and Anand Prakash, for the respondent."}}, {"text": "Anand Prakash", "label": "OTHER_PERSON", "start_char": 2638, "end_char": 2651, "source": "ner", "metadata": {"in_sentence": "S. N. Bhandari and Anand Prakash, for the respondent."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 2717, "end_char": 2726, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Ramaswami J.\n\nThis appeal is brought, by special leave, against the judgment of the High Court of Judicature of Madhya Pradesh dated February 28, 1962 dismissing the petitii>n of the appellant for grant of a writ under Art."}}, {"text": "High Court of Judicature of Madhya Pradesh", "label": "COURT", "start_char": 2801, "end_char": 2843, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Ramaswami J.\n\nThis appeal is brought, by special leave, against the judgment of the High Court of Judicature of Madhya Pradesh dated February 28, 1962 dismissing the petitii>n of the appellant for grant of a writ under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 2936, "end_char": 2944, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 2952, "end_char": 2973, "source": "regex", "metadata": {}}, {"text": "provisions of the University of Saugar Act 1946", "label": "STATUTE", "start_char": 3238, "end_char": 3285, "source": "regex", "metadata": {}}, {"text": "Clause 3", "label": "PROVISION", "start_char": 3372, "end_char": 3380, "source": "regex", "metadata": {"linked_statute_text": "The College is affiliated to the University of Sau gar under\n\nthe provisions of the University of Saugar Act 1946", "statute": "The College is affiliated to the University of Sau gar under\n\nthe provisions of the University of Saugar Act 1946"}}, {"text": "Sheobhagwan Rameswarlal Charitable Trust, Biiaspur", "label": "ORG", "start_char": 3509, "end_char": 3559, "source": "ner", "metadata": {"in_sentence": "The College is maintained out of the funds of Sheobhagwan Rameswarlal Charitable Trust, Biiaspur and is aided by the State Government."}}, {"text": "June 2, 1960", "label": "DATE", "start_char": 3601, "end_char": 3613, "source": "ner", "metadata": {"in_sentence": "On June 2, 1960 the Principal of the College served the appellant, by post, a charge D sheet consisting of three charges and the appellant was asked to\n\nubmit explanation within a week's time."}}, {"text": "28-12-1959", "label": "DATE", "start_char": 3887, "end_char": 3897, "source": "ner", "metadata": {"in_sentence": "The charges were as follows:-\n\n\"(1) That you have deliberately based your representation dated 28-12-1959 on false fact~ and misstatements and have committed acts of insubordination amounting to misconduct by making counter-charges against the Governing Body. ("}}, {"text": "1-7-1956", "label": "DATE", "start_char": 4457, "end_char": 4465, "source": "ner", "metadata": {"in_sentence": "FC/56-57 dated 1-7-1956 amounts to breach of the service rules of the college.\""}}, {"text": "July 5, 1960", "label": "DATE", "start_char": 4957, "end_char": 4969, "source": "ner", "metadata": {"in_sentence": "The allegation of the appellant is that he was not supplied with the required particulars and that the Governing Body terminated the services of the appellant with effect from H July 1, 1960 without holding any enquiry~ The anneliant made a representation to the Governing Body on July 5, 1960 requesting\n\nA it to reconsider the whole matter."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 5192, "end_char": 5200, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 5208, "end_char": 5229, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 7036, "end_char": 7044, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 2", "label": "PROVISION", "start_char": 7370, "end_char": 7379, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 7547, "end_char": 7556, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6(6)", "label": "PROVISION", "start_char": 7640, "end_char": 7647, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 32", "label": "PROVISION", "start_char": 7853, "end_char": 7863, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 24(i)", "label": "PROVISION", "start_char": 9139, "end_char": 9152, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 9408, "end_char": 9413, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 8", "label": "PROVISION", "start_char": 9457, "end_char": 9465, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 8", "label": "PROVISION", "start_char": 9554, "end_char": 9562, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 7", "label": "PROVISION", "start_char": 10647, "end_char": 10655, "source": "regex", "metadata": {"statute": null}}, {"text": "Saugar University", "label": "ORG", "start_char": 11634, "end_char": 11651, "source": "ner", "metadata": {"in_sentence": "After confirmation, the services of the party of the first part can be terminated only on the following grounds:- a. Wilful and persistant neglect of duty, b. Misconduct,\n\nc. Breach of any of the terms of contract, d. Physical or mental unfitness, e. Incompetence, f. Abolition of the pests :\n\nProvided firstly, that the plea of incompetence sitall not be used against the party of the first part after he has served the party of the second part for five years or more: USup./65-12\n\nSUP.REMB\n\nCOURT .REPOllTS\n\n[1965] 2 S.C.R.\n\nProvided, secondly, the services of the party of the A fiIBt part shall not be terminated under clause ( c) or\n\n(f) without the previous approval of Saugar University.\""}}, {"text": "s. 32", "label": "PROVISION", "start_char": 11804, "end_char": 11809, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 11820, "end_char": 11824, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 11974, "end_char": 11979, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 11990, "end_char": 11994, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 7", "label": "PROVISION", "start_char": 12720, "end_char": 12728, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 8", "label": "PROVISION", "start_char": 13043, "end_char": 13051, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 8(vi)", "label": "PROVISION", "start_char": 13667, "end_char": 13679, "source": "regex", "metadata": {"statute": null}}, {"text": "June 30, 1960", "label": "DATE", "start_char": 14468, "end_char": 14481, "source": "ner", "metadata": {"in_sentence": "Since the\n\nA question has not been investigated by the High Court we consider that it is necessary that this case should go back on remand to the High Court for deciding the question whether there was a violation of the procedure prescribed under Clause S(vi)(a) of the \"College Code\" and whether the order of the Governing Body, dated June 30, 1960 is consequently illegal and ultra vires and B whether the appellant is entitled to the grant of a writ under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 14591, "end_char": 14599, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Clause 8", "label": "PROVISION", "start_char": 14835, "end_char": 14843, "source": "regex", "metadata": {"statute": null}}, {"text": "February 28, 1962", "label": "DATE", "start_char": 15686, "end_char": 15703, "source": "ner", "metadata": {"in_sentence": "E For the reasons already expressed, we allow this appeal, set aside the judgment of the High Court, dated February 28, 1962 and order that the case should be remanded to the High Conrt for investigating the question whether there was a violation of the procedure contained in Clause 8 (vi) (a) of the \"College Code\" F and for final determination of the case in accordance with Jaw."}}, {"text": "Clause 8", "label": "PROVISION", "start_char": 15856, "end_char": 15864, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_2_720_750_EN", "year": 1965, "text": "S. P. JAIN v.\n\nKALINGA TUBES LTD.\n\nlanllary 14, 1965\n\n[1>. B. GAJENDkAGADKAR, C.J., K. N. WANCHOO AND B S. M. SIKru, JJ.]\n\nCompanies A.ct (A.ct 1 of 1956), :rs. 397 and 398-Scope of.\n\nIn July 1954, two groups of shareholders led by P and L, who, together held an equal number of shares of the value of Rs. 21 lakbs out of a total share capital of Rs. 25 lakbs in the respondent company (then a private companJC), entered into a private agreement with the Appellant, whereby, (i) the share capital of the company was to be increased by Rs. 10! lakhs and shares of this value allotted to the appellant so that the total shares held by him would be equal to the holding of each of the other two groups; (ii) each of these three groups of shareholders would have an equal number of representatives on the Board of'Directors;\n\n(iii) the appellant undertook to arrange certain credit facilities for the company; and (iv) the appellant was to be the Chairman of the Board. In accordance with this agreement, the appellant was made the Chairman and though various resolutions were passed by the company to implement the agreement, these resolutions did not in terms refer to the agreement, and no change was made in the Articles of Aasoclation of the company so as to embody the terms of the agreement. Some time later, the subscribed capital of the company was increased to Rs. 61 lakbs and the new shares were so allotted as to maintain the parity in the shareholdings of the three groups.\n\nWhen one of the two minority shareholders sold 250 shares, these were equally divided between the three groups and one odd share was held by P, L and the Appellant jointly.\n\nIn 1956-57, the company desired to raise atoan from the Industrial Finance Corporation and as this Corporation made advances only to 1>Ublic limited companies, in January 1957 the company was converted mto a public company.\n\nAppropriate amendments were made in its Articles of Association, but even on this occasion, no attempt was made to incorporate into the Articles tlie terms of the Agreement of July 1954.\n\nAfter sanction had been obtained of the Controller of Capital Issues for the issue of additional share capital, the appellant suggested at a meeting of the board of directors in March 1958 that the new shares should be issued proportionately to the existing shareholders in accordance with the provisions of Section 81 of the Companies Act, 1956.\n\nOn the other hand, those representing the P and L groups proposed that the new shares should be offered privately in the best interests of the company at the sole discretion of the directors; this proposal was made because these two groups did not have money to subscribe for the new capital and they feared that if shares were offered in the first instance to existing shareholders, the appellant could get all of them and thus acquire control of the company.\n\nIn view of the majority of the P and L groups in the .Board, their proposal was adopted and subsequently a resOlution to that effect was also accepted at a General Meeting of the shareholders held. in March 29, 1958.\n\nThe appellant thereafter instituted a suit to have the resolution declared illegal and void and obtained an ex parte injunction against the coml?anY from allotting sliares pursuant to thjs resolution.\n\nOn July 13, 1958, the appellant's suit was dismissed by the Subordinate Judge and the injunction vacated by him\n\nA at 11 A.M.\n\nThe Board of Directors at a meeting held on that date, immediately on reoeiving the news that the injunction had been vacated, allotted the new shares to seven persons who had previously applied for them.\n\nOn the same day, the appellant filed an appeal and applied for an~ obtained an order staying the operation of the order of tbe Subordinate Judge.\n\nEventually these appeals were also dismissed and the stay vacated.\n\nB In September 1960 another General meeting of the company was called to approve a proposal to increase the share capital of the company from Rs. 1 crore to Rs. 3 crores. It was also intended that these new shares should be offered to outsiders with a view to making the company more broad-based.\n\nAt that stage the appellant filed a petition in the High Court under Section 397 and 398 of the Companies Act, 1956, complaining ;,.!er C alia, that the issue of new shares was in furtherance of a continuing oppression of the appellant's minority group; that by allotting such shares to benamidars of P and L in disregard of the agreement of July 1954, it was intended to exclude the appellant from all control of the affairs of the company; that the resolutions passed in March 1958 as to the manner of allotment of new shares contravened s. 81 of the Companies Act, 1956 and this resolution as well as the hasty allotment on July 30, 1958 were in abuse of the power of the P and L groups and oppressive D of the minority. The petition was allowed by the single Judge but this decision was reversed tn appeal by a Division Bench of the High Court.\n\nOn appeal to the Supreme Court.\n\nHELD : ( i) On the facts no case had been made out, of oppression within the meaning of section 397.\n\nFor a petition under section 397 to succeed, it is not enough to E show that there is just and equitable cause for winding up the company, though that must be shown as preliminary to the application of section\n\n397. It must further be shown that the conduct of the majority shareholders was oppressive to the minority as members and this requires, that events have to be considered not in isolation but as a part of a consecutive story. There must be continuous acts on the part of the majority shareholders, continuing up to the date of tho petition, showing that the F affairs of the company were being conducted in a manner oppressive to some part of the members.\n\nThe conduct must be burdensome, harsh ar i wrongful and mere lack of confidence between the majority shareholders and the minority shareholders would not be enough unless lack of confidence springs from oppression of the minority by a majority in the management of the company's affairs, and such oppression must involve at least an element of lack of probity, or fair dealing to a member in the matter of his proprietary rights as a shareholder. [937 C-F]\n\nG Elder v. Watson, (1952) S.C. 49; George Meyer v, Scottish Co-\n\noperative Wholesale Society Ltd. (1954) S.C. 381; Scottish Co-operative\n\nWholesale Society Ltd. v, Meyer and another, [1958] 3 All. E.R. 66: Re. H. R. Harmer Ltd., [1958] 3 All E.R. 689; discussed and applied.\n\n(ii) The agreement of July 1954 on which the case of oppression was based was not binding even on the private company and much less so on the public company when it came into existence in 1957. It wa.• really an agreement between a non-member and two members of the company and although for some time the agreement. was in te main carri_ed out clearly some of its terms could not be put m the arttcles of assoc1atio~ of the public company.\n\nAs the company was not bound by the\n\nSUPREME COURT REPORTS\n\n(1965] 2 S.C.R.\n\nagreement, the mere fact that it was decided at the meeting in March A 1958 to offer the new shares to outsiders and not the existing shareholders did not necessarily amount to an oppression of the minority shareholders.\n\nThe majoricy shareholders were not bound to accept a proposal of the minority shareholders that the new shares should be allotted . only to the existing shareholders.\n\nFurthermore the general meeting having decided that new shares should not be issued to the existing shareholders but to others, there was no contravention of s. 81 of the Companies Act 8 1956 and the resolution of March 28, 1958 was in accordance with law as it stood at the time. (739 B.C; 740 G-H; 741 C-E; 745 D-F]\n\n(iii) It could not be said thal the allottees of new shares were benamidars or stooges of the P or L group and that by allotment of .bares to them, the majority shareholders were oppressing the minority.\n\nThese allottees were independent persons and the fact that the P and L groups might be able to get the support of the holders of the new shares C did not necessarily mean oppression of the appellant, for the new sharoholders may support the P and L groups on the ground that such support would be for the benefit of the Company. (744 C-E]\n\n(iv) The haste in issuing new shares upon the vacation of the injunction of July 30, 1958 could not be held to be a part of the design to oppress the minority. The company was in need of money for expansion and its ability to obtain a loan from the Fmance Corporation\n\ndepende4 upon the increase of its subscribed share capital.\n\nTlie haste D became necessary because the injunction wlls vacated on that day and it was felt that if immediate action was not taken and the new shares allotted, there might be a further injunction and consequent delay .. The haste in the allotment of shares arose out of circumstances brought about by the appellant's conduct. (743 A-El\n\nHeld also, that no case had been made out for action under section 398 on the ground that the affairs of the company were being conducted i; in a manner prejudicial to its interests. [749 CJ\n\nCML APPELLATE JURISDICTION: Civil Appeals Nos. 734-747 of 1964.\n\nAppeals from the judgment and order dated April 18, 1963 of the Orissa High Court in A.H.O. No. 13 of 1961 and A.H.O.\n\nNos. 2 to 14 of 1962. r N. C. Chatterjee, S. Ray Chowdhury, M. L. lhunjhunwa/a, S. Murty and B. P. Maheshwari, for the appellant (in all the appeals).\n\nM. C. Seta/vad, A. V. Viswanatha Sastri, Ranadeb Chaudhri, M. K. Banerjee, I. B. Dadachanji, 0. C. Mathur and Ravinder G Narain for respondent No. 1.\n\nRanadeb Chaudhuri and /. B. Dadachanji, for respondent No. 2.\n\nG. S. Pathak, B, Dutta and /. B. Dadachanji, for respondent ~1 H A. V. Viswanatha Sastri and/. B. Dadachanji, for respondent No.4.\n\n=~ .\n\ns. P • .JAIN v. KALINGA TUBBS (Wanchoo, /.) 723\n\nA Sachin Chowdhury, S. N. Andley, Rameshwar Nath and P. L.\n\nYohra, for the respondent Nos. 9, 10, and 12.\n\nC. K. Daphtary, Attorney-General, /. B. Dadachanji, 0. C.\n\nMathur and Ravinder Narain, for respondent No. 13.\n\nSachin Chowdhury, B. Sen, Dipak Dutta Chowdhury, for res- • pondent No. 14.\n\nNiren De, Additional Solicitor-General and Rajinder Narain &: Co. for respondent No. 15.\n\nS. V. Gupte, Solicitor-General and Rajinder Narain, &: Co. for n:spondent No. 16.\n\nThe Judgment of the Court was delivered by\n\nWanchoo, 1. J'hese fourteen appeals on certificates granted by the High Court of Orissa raise common questions of law and fact and will be dealt with together. They are a consequence of\n\n~ fight between two groups of business magnates for the control D al Messrs. Kalinga TuJ>es Limited (hereinafter referred to as the Company). They arise out of an application under ss. 397, 398, 402 and 403 of the Indian Companies Act, No. 1 of 1956, (hereinafter referred to as the Act) made by the appellant in the High Court. Most of the facts are not seriously in dispute and it is PeCeSsary to set them out in detail in order to decide the main E point raised on behalf of the appellant, namely, that the affairs\n\nal the Company were being conducted in a manner oppressive to him and his group of members.\n\nThe Company was floated as a private limited company on December 1, 1950 with an authorised capital of Rs. 25 lacs. Ori- :r ginally, the shares were held by two groups of shareholders\n\nequally, except a few shares. These groups of shareholders lllllY for our purposes be taken to be represented by Patnaik and Loganathan. The Company raised a sum of Rs. 36 lacs by the issue\n\nof two series of debentures which were guaranteed by the Government of Orissa between 1952 to 1954. In 1954, the appellant G was approached by Dr. Mohanty, then Secretary to Government\n\n.of Orissa (Industries Department) which was naturally interested in the Company having guaranteed debentures to the tune of Rt. 36 lacs, for helping the Company which was in financial and administrative difficulties.\n\nThe appellant was requested to help the Company by providing finance and by arranging loans from H banks _and other sources and further by providing the necessary\n\nadministrative guidance.\n\nThe appellant agreed to do so and comequently on July 27, l 9S4, an agreement was entered into\n\n7.24\n\nSUPIUIME COURT llPOJlTS\n\n(1965) 2 S.C.ll\n\nbetween the appellant, and Patnaik and Loganathan.\n\nTo this A agreement, the Company was not a party.\n\nWe shall refer in detail to the various terms of the agreement later. In brief. however, the agreement provided that the appellant wouid be allotted shares in the Company equal to those held by Patnaik and Logan_athan after in.creasing the share capital of the Co!npany.\n\nThus the Company would have three groups of share- B holders represented by the appellant, Patnaik an<l Loganathan holding equal number of shares, besides a French company and one Rath, who between themselves held shares worth Rs. 4 lacs.\n\nThese shareholders however were not paity to the agreement.\n\nIt was also provided that these three groups of shareholders C would have equal number of representatives on the Board of Direc:tors of the Company, namely, two each for the time being.\n\nThe appellant also undertook to arrange for cash credit facilities to the limit of Rs. 50 lacs on the security of raw materials and finished goods of the Company. And finally, the appellant Jain was to be the chairman of the Company. This agreement was D followed by certain resolutions passed by the Company on August 16, 1954 by which some of the terms of the agreement were stibstantially carried out, the authorised capital was increased to rupees one crore (though it was issuecl later in instalments), and the appellant was made the chairman of the Company. It may however be noted that the resolutions did not refer to the agree' E ment in terms and no change was made in the Articles of Association of the Company to bring them in conformity with all the terms of the agreement. In January 1955, Narayanswami who had been appointed Managing Director resigned and Patnaik was appointed the Managing Director. In April 1955, the Company started production.\n\nSometime thereafter the share capital was I' further subscribed up to Rs. 61 lacs and the three groups, namely, the appellant Jain, Patnaik and Loganathan held one-third of the shares leavuig out shares held by the French company. Mr. Rath had sold his shares numbering 250 and these shares were equally divided .between the three groups and the one odd share was held G by all the three namely Jain, Patnaik and Loganathan, jointly.\n\nIn September 1956, a resolution was passed by the Board of\n\nPirectors referring the question of conversion of the Company to a public limited company to a subommittee consisting of the appellant, LOganathan and Patnaik.\n\nAbout the same time, an application was made to the Controller of Capital Issues for the H sanction of the issue of further shares to the extent of Rs. 39 lacs out of the authorised capital of rupees one crore and for the\n\nA issue of debentures to the extent of Rs. 64 lacs. In this application it was stated that the shares were intended to be issued privately to the existing shareholders and/ or their nominees. In , December 1956 a resolution was psed by the Board of Directors for converting the Company into a public limited company and for amending the Articles of Association in consequence at B the next annual general meeting. This was necessary as the Company wanted to borrow from the Industrial Finance Corporation which however made advances only to public limited companies.\n\nOn January 11, 1957, the Company was converted into a public company and the Articles of Association were amended.\n\nEven so, no attempt was made to incorporate the terms of the agree- C ment dated July 27, 1954 in the Articles of Association so amended.\n\nTrouble however seems to have arisen between the appellant and the other two groups as early as September 1955 in conse- D quence of an advertisement issued by the appellant in newspapers suggesting that his group was engaged in the manufacture of black and galvanised steel tubes and in this advertisement the emblem of the Company was also printed, as if the Company was part of the appellant's group.\n\nThis led to strong protests by Patnaik and Loganathan and eventually the appellant with- E drew the advertisement.\n\nHowever, the appellant continued to be the chairman of the Company in spite of growing differences between him and Patnaik and Loganathan. Articles of Association were further amended in November 1957. At that time also nothing was put therein on the basis of the agreement dated July 27, 1964. In December 1957, the Controller of Capital F Issuet> sanctioned the issue of shares of the face value of Rs. 39 lacs and debenutres of the face value of Rs. 64 lacs subject to the provisions of s. 81 of the Act. Real trouble started after this sanction for the issue of fresh shares. We shall have occasion to refer to s. 81 of the Act. later; it is enough to say here that that sanction provides that the new shares would be offered G in the first instance to the existing shareholders in p.roportion, as\n\nnearly as the circumstances admit, to the capital paid up on the existing shares at that date \"subject to any direction to the contrary which may be given by the Company in general meeting\".\n\nSo unless the Company decided otherwise at a general meeting, the new issue of shares to the tune of Rs. 39 lacs would H have had to be offered under s. 81 of the Act to the existing shareholders in proportion to their existing shares.\n\nAt that time as already indicated, the appellant group held one-third share\n\nSUPREMI!\n\nCOURT JlEPOllTS\n\n[1'65) 2 S.C.R\n\nand Loganathan and Patnaik groups held two-thirds share except A for certain shares held by the French company and therefore in the absence of a direction to the contrary at a general meeting, the new shares would also have gone in equal shares to the three groups subject to the shares which would go to the French Company.\n\nB The question of the issue of new shares came up before a meeting of the Board of Directors on March l, 1958, and the differences between the three groups which had already begun came to the surface at that time. The appellant proposed to the Board of Directors that the new shares should be issued to the existing shareholders as provided in s. 81 of the Act. Patnaik on C the other hand proposed that a general meeting should be called for the purpose of passing a resolution for the issue of new shares and for the manner and proportion in which shares were to be offered privately to the shareholders and other persons and for such other incidental matters as provided in the section. It is apparent from this conflict between the appellant grcmp and Patnaik and Loga- D nathan groups in this meeting that the groups of Patnaik and Loganathan did not want the appellant's group to get roughly one-third of the new shares. The fear of Patnaik in this connection was that if shares were offered privately to the existing shareholders, the appellant might get all of them, for the groups of Patnaik and Loganathan did not have the money to subscribe to E the new shares if offered in the first instance to the existing shareholders. Thus if the appellant got all the new shares, his group\n\nwould become the majority shareholder and would thus get control of the Company.\n\nConsequently, Patnaik put forward the resolution already referred to at the meeting of the Board of Direc- F tors on March 1, 1958 which provided for calling a general meeting for directions as to the issue of new shares, which directions it was hoped would override the provisions of s. 81 of the Act.\n\nPatnaik's resolution was passed and the appellant's proposal was outvoted for the obvious reason that the Patnaik and Loganathan groups held the majority of shares. In consequence a general meet- G ing of shareholders was called for the purpose on March 29, 1958.\n\nThe appellant did not attend the meeting of March 29, 1958 though he was present by proxy. Patnaik presided at that meeting.\n\nTwo resolutions were put forward at that meeting, one on behalf of the appellant's group and the other on behalf of Patnaik and Loganathan groups.\n\nThe appellant's resolution H proposed that the new shares should be offered to the existing shareholders of the Company in the proportion of their share-\n\nA holdings and the offer should remain open for a period of fifteen days with the right to accept or renounce the whole or part of the offer in their names or in the names of their nominee or nominees and if a shareholder did not accept within that period the offer should be deemed to have been declined.\n\nThe second resolution on behalf of the Patnaik Loganathan groups proposed B that the new shares should not be offered or allotted to the existing sliareholders or to the public and that they should be allotted privately in the best interest of the Company at the sole discretion of the directors to such persons as might have applied or thereafter apply on the condition that atleast 5 per centum of the face C value of shares applied for was paid as application money and IO per centum of the face value was paid on allotment and the balance paid as and when called upon in accordance with the Articles of Association of the Company. As was to be expected, the resolution put forward on behalf of the appellant was lost and the resolutions put forward on behalf of Patnaik and Loganathan D groups as to the allotment of new shares were passed.\n\nThus in that meeting there was a complete breach between the three groups.\n\nThis was followed on April 18, 1958, by a suit by the appellant and some other shareholders of his group for a declaration that the resolutions dated March 29, 1958 were ultra vires, illegal, void i: and not binding on the appellant, the Company and its shareholders with a prayer for permanent injunction restraining the defendnats in the suit (namely, the other two groups) and their\n\nervants and agents from giving effect to or acting in any way in pursuance of the said resolutions and further restraining each of the defendants, their servants and agents from issuing and alloting F the new shares in terms of the impugned resolutions. That suit was filed in the court of the Subordinate Judge, Cuttack. It is unnecessary here to refer to the details of that suit. It is enough to say that an ex parte interim injunction was obtained on the same day restraining the Company and other. defendants from issuing and allotting the new shares to persons other than the existing share- G holders and giving effect to the resolutions in that regard passed at the meeting held on March 29, 1958. The Company then made an application for setting aside the ex pane interim injunction.\n\nThis matter came up before the court on May 15, 1958. At that time an offer was made on behalf of the Company that in view of the urgent necessity for funds, the Company might be permitted ff to issue two-thirds of the shares, keeping back one-third which would have gone to the appellant if the shares had been offered to t!ie existing shareholders; but this was not accepted on behalf of\n\nSUPREME\n\nCOURT\n\nREPORTS [ 1965) 2 S.C.ll.\n\nthe appellant. The hearing of the injunction matter was postponed A on several dates and it appears that the Patnaik and Loganathan groups continued to call meetings of the Board of Directors on the dates fu>ed in the suit, and the agenda always provided for the allotment of the new shares.\n\nEventually on July 30, 1958 the Subordinate Judge delivered judgment and vacated the injunction at about 11 a.m. A meeting of the Board of Directors was B being held on the same day from 10-30 a.m. and as soori as a message was received that the injunction had been vacated the new shares were allotted to seven persons who had applied for the same along with the application money. This happened about midday and the return as required by the Act was duly filed with C the Registrar of Companies at 12-40 p.m.\n\nThe same day, an application was made at 12-40 p.m. on behalf of the appellant before the Subordinate Judge praying that the order vacating the injunction be stayed till the appellant obtained orders from the High Court where he wished to appeal. The Company's lawyer however intimated to the court that the shares had already been D allotted. Even so, the court passed an order staying the operation of its judgment delivered earlier for two days. The matter was then taken in appeal to the High Court by the appellant. The appeal was dismissed in September 1958. There was a Letters Patent appeal following the dismissal but that was not pres>ed and was eventually dismissed in November 1960.\n\nThe case of the appellant was that the seven persons to whom the new shares were allotted were nominees or benamidars of Pat- , naik and Loganathan and therefore these groups really allotted the new shares to themselves through their benamidars. It was also alleged that these seven persons only paid 5 per centum of F the share money and this showed, even though it was said that the Company was in urgent need of money, that the shares were allotted to persons who were not in a position to pay the share money in full. The appellant contended that the allotment of the new shares was made surrei}titiously and deliberately with the sole idea of defeating the rights of shareholders represented by him and G his group and this amounted to oppression of the minority shareholders.\n\nTo continue the narrative, it appears that an extraordinary general meeting of the Company was called on Stember 21, 1960 to consider increasing the share capital froin rupees one crore on which it stood after the increase in 1958 to rupees three crores H by issue of additional equity shares numbering one lac of the value of rupees one crore and the issue of another one lac cumulative\n\ns. P. JAIN v. KALINGA TUBBS (Wanchoo, J.) 729\n\nA redeemable income-tax free preference shares of the value of rupees\n\none crore subject to such rights and privileges attaching to such preference shares as might be specified in the new Article to be inserted in the Articles of Association. It was also intended that\n\nthese new shares should be offered to outsiden (i.e. other than the existing shareholders) with a view to making the Company more B broad based. This meeting was called by a notice issued on August 25, 1960.\n\nIt was the calling of this meeting which led to the application under s. 397 etc. on September 14, 1960 by the appellant. It was urged in the application that this issue of new shares was in further- C ance of the continuing and continuous process of oppression of the appellant and his group being the minority shareholders and was designed for the purpose of completely excluding the appellant and his group from all control in the affairs of the Company and to deprive the financial advantage to be gained by them by the\n\n0 issue of new shares at par and to retain such advantage exclusively to the Patnaik and Loganathan groups so that the appellant and his group might be forced to sell their holdings to the Patnaik and Loganathan groups at a nominal value. That was why the new shares were being offered to outsiders and not to the existing shareholders, the object being to offer the shares to nominees I: and/ or benamidars of the Patniak and Loganathan groups and to such persons who would be within their control. The result of this would be that Loganathan and Patnaik groups would acquire more than 75 per centum of the voting strength of the Company and would be in complete control of it and so gain enormous financial advantage for themselves. This would cause irreparable ' loss and prejudice to the rights of the appellant and his group of minority shareholders.\n\nIt was alleged that this was being done by the Patnaik and Loganathan , groups who were in control of the majority of shares.\n\nFinally it was urged that the affairs of the Company were conducted in a manner prejudicial to the interest of the Company by Loganathan and Patnaik groups and G there was mismanament in conducting such affairs. It was further alleged that the conduct of Loganathan and Patnaik groups towards the minority shareholders was oppressive, burdensome, harsh and wrongful and the entire manoeuvre was that these groups should be able to control over 75 per centum of the voting strengt!J in the Company. Further it was alleged that the conduct of thest H groups involved a visible departure from the standard of fair dealing and violation of the conditions of fair play to which the appeHant and his group as minority shareholders were entitled. In particular\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n(1965) 2 S.C.1'.\n\nthe denial to the existing share holders to subscribe<. to the new A shares in proportion to their respective holdings and the issue of such shares to benamidars of the Patnaik and Loganathan groups was oppressive to the appellant and his group of minority shareholders and also amounted to mismanagement of the affairs of the Company. This was also in breach and violation of the agreement dated July 27, 1954 to which the Patnaik and Loganathan B groups were parties. Further it was said that although in form the Company was a public company in reality it was a partnership consisting of the three groups namely, the appellant's group, and of Loganathan and Patnaik groups.\n\nThe last two groups had combined together against the appellant group which had C resulted in justifiable lack of confidence on the part of the appellant and his group in the conduct of the affairs of the Company by the other two groups. Such lack of confidence had been caused by lack of probity in the conduct of the affairs of the Company by these two groups, which were acting to benefit themselves personally and were not concerned with the welfare of the Company.\n\nD The appellant and his group would not get any relief by calling a general meeting of the Company, and the facts and circumstances aforesaid would justify the making of a winding-up order on the ground that it was just and equitable that the Company should be wound up.\n\nTherefore the appellant prayed for directions under s. 397 of the Act, as the winding-up of the Company which was in E a prosperous condition would unfairly prejudice the appellant and other members of the minority group and redress against such oppression could be given by the High Court by making suitable directions in that behalf. The affairs of the Company were _being conducted in a manner prejudicial to the interest of the Company for reasons already stated and there had been F a material change in the management or control of the Company by alteration in its Board of Directors and by fraudulent changes introduced in the ownership of the Company's shares and by reason of the wrongful act and conduct of the Patnaik and Loganathan groups.\n\nThe appellant therefore prayed for the removal G of the present Board of Directors, for re-constitution of the Board of Directors with at least two permanent representatives from his group and for ensuring equal representation in the Board of the three groups of shareholders, and for alterations in the Articles of Association to incorporate therein the provisions of the agreement dated July 29, 1954. The appellant also sought a declara- H tion that the resolutions passed by the Board of Directors on March 1, 1958 and at the general meeting dated March 29, 1958,\n\nA were null and void and were passed in abuse of the power of\n\nPatnaik and Loganathan groups and in oppression of the minority shareholders and prayed that the said resolutions be set aside in so far as they related to the issue and allotment of 39,000 new shares. '11te allotment made on July 30 should be declared illegal and null and void as it was made in abuse of the powers B of the Patnaik and Loganathan groups and in oppression of the minority shareholders and was not binding upon the Company, the appellant and his group. It was prayed that directions be given to sell the said 39,000 shares by the allottees to the Company upon payment of the amounts actually paid thereon so far C and the Company be permitted to offer the same to the shareholders as on July 29, 1958 in proportion to their respective shareholdings. An injunction was also prayed for restraining the Company from holding the meeting on September 21, 1960.\n\nFinally it was prayed that orders be passed for investigation into the conduct of the affairs of the Company by the Loganathan o and Patnaik groups and suitable directions be made with a view to regulating the affairs of the Company in future and if necessary an administrator of the Company be appointed for carrying out such directions as the High Court might be pleased to make for purposes of removing the oppression and the acts of misconduct and mismanagement and for regulating the conduct of the affairs E of the Company.\n\nThe seven persons to whom the new shares were allotted in July 1958 were also made parties and injunction was prayed for restraining them from transfering those shares.\n\nThe application was opposed on behalf of the Company, and its main contention was that the Company was not a party to the F agreement dated July 27, 1954 and was not bound by it. It was further contended that there was no mismanagement and the Company and its affairs were not being conducted in a manner prejudicial to it. It was also contended that there was no oppression on the undisputed facts in the present case. The application was also opposed on behalf of Loganathan and Patnaik groups G and their case was that they had not acted in any manner which\n\ncould be said to be oppressive of the rights of the minority shareholders represented by the appellant. They also contended that the affairs of the Company were not being mismanaged nor were they being conducted prejudicially to the interest of the Company.\n\nFurther the seven persons to whom the shares had been H allotted on July 30, 1958 contended that they were not benarnidars of the Patnaik and Loganathan groups. Their case was that they were independent persons of substance and had applied for the\n\n732 SUPllEME COUllT IEPOitTS\n\n(1965) 2 S.C.ll\n\nnew shares themselves and not as benamidars of Loganathan and A Patnaik groups. They denied that there was any oppression of the minority shareholders as alleged or that there was any mismanagement of the affairs of the Company or any conduct which was prejudicial to the interest of the Company. They contended that the resolutions of March 1, 1958, March 29, 1958 and July 30, 1958 were perfectly legal d proper and they were entitled B to the shares which had been allotted to them.\n\nThe application was heard in the first instance by a learned Single Judge of the High Court. He came to the conclusion that the way in which the Patnaik and Loganathan groups had acted in the matter of the issue of new shares was oppressive of the C minority shareholders represented by the appellant and the subsequent conduct of the two groups amounted to continuing and continuous process of oppression of the minority shareholders and also amounted to mismanagement likely to be prejudicial to the interest of the Company. He came to the conclusion that the persistent acts of the Loganathan and Patnaik groups showed that D their motive was to oust the minority group of shareholders completely and the sole object of convening the meeting of September 21, 1960 and to pass the proposed resolutions was in furtherance of the continuing and continuous process of oppression of the appellant and his group, being the minority shareholders.\n\nFinally it was held that in view of the oppression there was just :r. and equitable cause for winding-up the Company. The learned Judge therefore allowed the petition and granted certain reliefs to which it is unnecessary to refer.\n\nThis was followed by fourteen appeals to a Division Bench by the Company and the various shareholders.\n\nThese appeals I' were consolidated and heard together. The Division Bench came to the conci'Jsion that the agreement of July 27, 1954 was not binding on the public company which came into existence after July 11, 1957, whatever might have been the position under the agreement when it was a private company. It also came to the conclusion that the seven persons to whom the new shares were G offered were not benamidars of Loganathan and Patnaik groups but were independent persons of substance, even though they might be friends of the majority group of shareholders. But there was nothing to show that they were under the control of the majority group and therefore it could not be said that 7 5 per centum of the voting strength was concentrated in the hands of H Loganathan and Patnaik groups except where these new allottees chose to vote with these groups. On a careful consideration of\n\ns. P. JAIN v. KAI.INGA TUBES (Wanchoo, J.) 733\n\nA the facts, the Division Bench came to the conclusion that no such oppression had been established as would justify an order under s. 397 of the Act. As to mismanagement under 5. 398, the Division Bench came to the conclusion that no case had been made out under that section.\n\nOn this view of the matter, the appeals were allowed and the application of the appellant was B dismissed and the parties were ordered to bear their own costs.\n\nThereupon the appellant applied for and obtained certificates to appeal to this Court and that is how the matter has come up before us.\n\nWe shall first take up the case under s. 397 of the Act and C proceed on the assumption that a case has been made out to wind-up the Company on just and equitable grounds.\n\nThis is a new provision which came for the first time in the Indian Companies Act, 1913 ass. 153-C. That section was based on s. 210\n\nof the English Companies Act, 1948, which was introduced therein for the first time.\n\nThe purpose of introducing s. 210 in the D English Companies Act was to give an alternative remedy to winding up in case of mismanagement or oppression.\n\nThe law always provided for winding up, in case it was just and equitable to wind up a company. However, it was being felt for sometime that though it might be just and equitable in view of the manner E in which the affairs of a company were conducted to wind it up, it was not fair that the company should always be wound up for that reason, particularly when it was otherwise solvent. That is why s. 210 was introduced in the English Act to provide an alternative remedy where it was felt that though a case had been made out on the ground of just and equitable cause to wind up F a company, it was not in the interest of the shareholders that the company should be wound up and that it would be better if the company was allowed to continue under such directions as the court may consider proper to give.\n\nThat is the genesis of the introduction of s. 153-C in the 1913-Act and s. 397 in the Act.\n\nG Section 397 reads thus :-\n\n\"Application to Court for relief in cases of oppress11in-(1) Any members of a company whQ complain that the affairs of the company are being conducted in a mallner oppressive to any member or members (including any one or more of themselves) may apply to the H Court for an order under this section, provided such members have a right so to apply in virtue of section 399.\n\nL4Sup./6 -\n\n.• , -\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n[1965] 2 S.C.R.\n\n(2) If, on any application under sub-section (1), the Court is of opinion- ( a) that the company affairs are being conducted in a manner oppressive to any member or members; and\n\n(b) that to wind up the company would unfairly prejudice such member or members, but that otherwise the facts would justify the making of a winding up order on the ground that it was just and equitable that the company should be wound up; the Court may, with a view to bringing to an end the matters complained of, make such order as it thinks fit.\" It gives a right to members of a company who comply with the conditions of s. 399 to apply to the court for relief under s. 402 of the Act or such other reliefs as may be suitable in the circumstances of the case, if the affairs of a company are being conducted\n\nin a manner oppressive to any member or members including any one or more of those applying.\n\nThe court then has power to D make such orders under s. 397 read with s. 402 as it thinks fit, if it coms to the conclusion that the affairs of the company are being conducted in a manner oppressive to any member or members and that wind up the company would unfairly prejudice such member or members, but that otherwise the facts might justify E the making of a winding up order on the ground that it was just and equitable that the company should be wound up. The law however has not defined what is oppression for purposes of this section, and it is left to courts to decide on the facts of each case whether there is such oppression as calls for action under this section.- F We may in this connection refer to four cases where the new s. 210 of the English Act came up for consideration, namely, (1) Elder v. Elder and Watson,('),\n\n(2) George Meyer v. Scottish Cooperative Wholesale Society Ltd.('), (3) Scottish Co-operative Wholesale Society Ltd. v. Meyer and another(•), which was an appeal from Meyer's case('), and\n\n(4) Re. H.\n\nR. Harmer G Limited(').\n\nAmong the important considerations which,. have to be kept in view in determining the scope of s. 210, the following matters were stressed in Eider's case(') as summarised at p. 394 in Meyer's case(') :-\n\n\" (l) The oppression of which a petitioner complains must relate to the manner in which the affairs of the\n\n(I) (1952) s. c. 49:\n\n(2) (19541 s. c. 381:\n\n(3) (19581 3 All. E.R. 66:\n\n(4) (19581 3 All. E.R. 689.\n\ncompany concerned are being conducted; and the conduct complained of must be such as to oppress a minority of the members (including the petitioners) qua shareholders.\n\n(2) It follows that the oppression complained of must be shown to be brought about by a majority of members exercising as shareholders a predominant voting power in the conduct of the company's affairs. ( 3) Although the facts relied on by the petitioner may appear to furnish grounds for the making of a winding up order under the 'just and equitable' rules, those facts must be relevant to disclose also that the making of a winding up order would unfairly prejudice the minority members qua shareholders. ( 4) Although the word 'oppressive' is not defined, it is possible, by way of illustration, to figure a situation in which majority shareholders, by an abuse of their predominant voting power, are 'treating the company and its aff'llrs as if they were their own property' to the pre111dice of the minority shareholders--and in which just and equitable grounds would exist for the making of a winding up order. . . . but in which the 'alternative' remedy provided by s. 210 by way of an appropriate order might well be open to the minority shareholders with a view to bringing to an end the oppressive conduct of the majority. ( 5) The power conferred on the Court to grant a remedy in an appropriate case appears to envisage a reasonably wide discretion vested in the Court in relation to the or<ler sought by a complainer as the appropriate equitable alternative to a winding-up order.\"\n\nMeyer's case was between a parent company and a subsidiary company and it was held that \"(1) when a subsidiary company G is formed with an independent minority of shareholders, the parent company must, if engaged in the same class of business, conduct the affairs of the subsidiary, even though these are in a sense its own, in such a way as to deal fairly with the subsidiary;\n\n(2) that, if the parent company deliberately pursues a course calculated to destroy its subsidiary, with resulting loss to the H minority shareholders, this may amount to oppression within the meaning of sec. 210;' (3) that the conduct of a majority shareholder may amount to oppression notwithstanding the fact that IASup./65-\n\nSUPREME\n\nCOURT REPOllTS\n\n[1965) 2 S.C.R.\n\nhis own shares depreciate in value pro rata with those of the A minority; and ( 4) that, even if the majority shareholder has virtually destroyed the substratum of the company by his oppreesive conduct and it is conceded by all parties to be just and equitable that the company be wound up, the oppressed minority may nevertheless be entitled to a remedy under sec. 210.\" B These observations were approved by the House of Lords in appeal and it was held that \"whenever a subsidiary is formed as in this case with an independent minority of shareholders, the parent company must, if it is engaged in the same class of business, accept as a result of having formed such a subsidiary an obligation so to conduct what are in a sense its own affairs as to C deal fairly with the subsidiary.\"\n\nIn Harmer's cal'e(1), it was held that \"the word 'oppressive' meant burdensome, harsh and wrongful\". It was also held that\n\n\"the section does not purport to apply to every case in which the facts would justify the making of a winding up order under the D 'just and equitable' rule, but only to those cases of that character which have in them the requisite element of oppression\".\n\nIt was also held that \"the result of applications under s. 210 in differet cases must depend on the particular facts of each case, the circumstances in which oppression may arise being so infii:titely various that it is impossible to define them with precision\". The circum- E stances must be such as to warrant the inference that \"there had been, at least, an unfair abuse of powers and an impairment of confidence in the _probity with which the company's affairs are being conducted, as distinguished from mere resentment on the part of a minority at being outvoted on some issue of domestic policy\". The phrase \"oppressive to some part of the members\" F suggests that the conduct complained of \"should at the lowest involve a visible departure from the standards of fair dealing, and a violation of the conditions of fair play on which every shareholder who entrusts his money to a company is entitled to rely . . . . But, apart from this, the question of absence of mutual confidence per se between partners or between two sets of G shareholders, however relevant to a winding up seems to have no direct relevance to the remedy granted by s. 210.\n\nIt is oppression of some part of the shareholders by the manner in which the affairs of the company are being conducted that must be averred and proved. Mere loss of confidence or pure deadlock does not come within s. 210. It is not lack of confidence between H shareholders per se that brings s. 210 into play, but lack of confi-\n\n(1) (1958] 3 All. E.R. 689.\n\ns. P. JAIN v. KALINGA TUBES (Wancl100, J.) 737\n\nA dence 5pringine from oppression of a minority by a majority in the\n\nmanagement of the company's affairs, and oppression involves at least an element of lack of probity or fair dealing to a member in the matter of his proprietary rights as a shareholder.\" These observations from the four cases referred to above apply • to s. 397 also which is almost in the same words as s. 210 of the English Act, 11nd the question in each case is whether the conduct of the affairs of a company by the majority shareholders was oppressive to the minority shareholders and that depends upon the facts proved in a particular case.\n\nAs has already been indicated,\n\nc it is riot enough to show that there is just and equitable cause for winding up the company, though that must be shown as preliminary to the application of s. 397. It must further be shown that the conduct of the majority shareholders was oppressive to the minority as members and this requires that events have to be considered not in isolation but as a part of a consecutive story.\n\nThere must be continuous acts on the part of the majority shareholders, conn tinuing up to the date of petition, showing that the affairs of the company were being conducted in a manner oppressive to some part of the members. The conduct must be burdensome, harsh and wrongful and mere lack of confidence between the majority shareholder~ and the minority shareholders would not be enough unless\n\nE the lack of confidence springs from oppression of a minority by a majority in the management of the company's affairs, and such oppression must involve at least an element of lack of probity or fair dealing to a member in the matter of his proprietary rights as\n\na shareholder.\n\nIt is in the light of these principles that we have to consider the facts in this case with reference to s. 397.\n\nF The main plank of the appellant's case to prove oppression is the agreement of July 27, 1954 between himself and Patnaik and\n\nLoganaLan.\n\nAt that time he was not a member of the Company.\n\nIt is not disputed that the Company was not a party to that agreement and is thus strictly speaking not bound by its terms.\n\nBut even apart from this strict legal aspect of the matter, G let us see what exactly the agreement provides.\n\nAt that time Patnaik and Loganathan groups held shares of the value of Rs. 21 lacs in the Company, and the main provision of the agreement is that the share capital would be increased and the appellant would be given shares of the face value of Rs. 10,50,000 so that his. holding should be equal to the holdings of the other two groups.\n\nH It also provides that the three groups would have an equal number of representatives on the Board of Directors and the appellant would be its Chairman.\n\nOther provisions of the agreement refer\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n\nto matters of detail to which it is unnecessary to refer. It will be A seen, however, that there is no provision in the agreement as to what would happen if and when the share capital was actually increased beyond the increase envisaged at the time of the agreement.\n\nThere is also no provision in the agreement to the effect that the Articles of Association of the private company as it then was would be amended suitably to bring the provisions of the B .agreement with respect to shareholding and the Board of Directors into line with the agreement.\n\nThus there is nothing in the agreement about the future in the matter of allotment of shares in case capital was actually increased thereafter.\n\nIn this connection our attention is drawn to the fifth term of the agreement which is in c these terms :~\n\n\"Ordinary shares of the face value of Rs. 4 lacs held by the French company (Rs. 3,75,000) and Mr. Rath (Rs. 25,000) will continue to be held by them as heretofore, and none of the parties hereto will have any interest therein so that the shareholding in the Company of all the three parties hereto will remain equal and in the same proportion.\"\n\nIt is urged that this term shows that the intention was that the shareholding of the three groups would remain equal for ever. We\n\n.are not prepared to read this implication in this term.\n\nIt was E easy to provide in the agreement that whenever capital was actually increased, it would be divided equaily between the three parties thereto.\n\nIn the absence of such a provision we do not think that the fifth term is capable of the interpretation which js put on it on behalf of the appellant.\n\nIt only deals with the shares worth Rs. 4 lacs held by the other two persons and provides that besides F those shareholdings capital shares would be held equally by the three parties.\n\nTherefore as we read the agreement we cannot come to the conclusion that it provides that if in future there was an actual increase in capital that will necessarily be shared equally by the three parties.\n\nG However, it is said that the conduct of the three parties later on shows that when there was actual increase of capital to Rs. 61 lacs sometime after July 1954, this increase was shared equally by the three parties and further when Mr. Rath sold his holdings in the Company they were purchased equally by the three parties so much so one odd share out of 250 shares was held by the H three parties jointly.\n\nThis is undoubtedly so, and does give some colour to the argument that the three parties concerned in the\n\nA agreement intended that their shareholdings should remain equal even later.\n\nBut this intention cannot be said to bind the Company, muchless so when the Company was not bound strictly speaking even by the express terms of the agreement.\n\nSo far as the Company is concerned, it was free to dispose of shares as the directors or the shareholders in general meeting considered proper B without regard to this agreement.\n\nAnother element came into the picture in January 1957 when the Company was converted into a public limited company. It is obvious that a public limited company was even much less bound by the agreement of July 1954 as compared to the private come pany.\n\nWe have already pointed out that even when the Company was private its Articles of Association were not amended to bring them into line with the agreement and that shows that the agreement was only between two groups of shareholders and Jain with respect to the state of affairs as it was at the time of the agreement.\n\nWhen the Company became a public limited company and it was D decided to issue new shares of the value of Rs. 39 lacs the question of allotment of these shares arose. By then some differences had developed between the three groups. The appellant wanted the shares to be allotted to the existing shareholders while the Patnaik: and Loganathan groups wanted the matter to be decided by a general meeting as evidenced by what happened in the meeting of B the Board of Directors dated March l, 1958. It appears that the decision to issue new shares was taken sometime in 1956 when the Company was a private company. At that time the authorised capital was rupees one crore. though only Rs. 61 lacs had been issued. The fresh issue of Rs. 39 lacs worth of shares was thus intended to bring the subscribed capital up to the limit of the autho- 1' rised capital.\n\nThe application to the Controller of Capital Issues was made for that purpose on September 17, 1956. At that time the intention was that the issue would be private and would be made to the existing shareholders, directors and/ or their nominees.\n\nThis was bound to be so as the Company was then private. As, G however, the Company wanted a loan from the Industrial Finance Corporation and as that Corporation would only grant loans to a public company, the Company was converted into a public company, as already indicated, in January 1957.\n\nThe contention of the appellant, however, is that when the share capital was decided to be increased by fresh issue within the H limit of rupees one crore, regulation 42 of the First Schedule to the 1913 Act was in force and that regulation required that direction to the contrary as to allotment of shares should be given\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n(1965] 2 S.C.R.\n\nby the resolution sanctioning increase of share capital. This was A however not done at the time when the authorised share capital was decided to be increased in 1954 and consequently the new shares had to be allotted to the existing shareholders under regulation 42. At that time, however, the Company was private and the shares had to be issued to the existing shareholders and no question of any direction to the contrary arose if the Company was to retain it~ private character.\n\nThe sanction of the Controller of Capital Issues came in December 1957 when the Company hlld become a public limited company, and the question of allotment arose thereafter. Bv that time the Act (i.e. the 1956 Act) had been passed and regmation 42 of the First Schedule to the c 1913 Act was no longer in force. Instead it had bee1. replaced by s. 81 of the Act, which provides that ''where at any time subsoquent to the first allotment of shares in a company, it is proposed to increase the subscribed capital of the company, by the issue of new shares, then, subject to any direction to the contrary which may be given by the company in general meeting and subject only D to those directions, such new shares shall be offered to the persons who at the time of the offer are holders of equity shares of. the company, in proportion as nearly as circumstances admit, to the capital paid up on those shares at that time\". Further sub-s. (3) of s. 81 provides that the section shall not apply.to a private company.\n\nThus s. 81 specifically applies to public companies only E and comes into play when subscribed capital (as distinct from authorised capital) has to be increased.\n\nTherefore when the question of actually issuing new shares arose after the sanction of the Controller, regulation 42 was no longer in force as it had been repealed, and action had to be taken in accordance with s. 81 of the Act.\n\nSection 81 does not require that. direction to the con- 'f trary must be given by the resolution sanctioning the increase of share capital as under regulation 42 of the.· First Schedule to the\n\n1913 Act. Consequently it was open to the public company in 1958 when it proposed to increase the subscribed capital after the sanction of the Controller to act under s. 81 and this was what G was done by the resolution of March 28', 1958 at the general meeting.\n\nThe general meeting decided that new shares should not be issued to the existing shareholders but should be. issued to others privately.\n\nThe resolution of March 29, 1958 was in accordance with the law as it stood when it was passed and cannot be said to be vitiated in any way.\n\nIt is however urged that the notice for the general meeting of the 29th March, 1958 was not in accordance with s. 173, and so\n\nA the proceedings of the meeting must be held to be bad. This objection was however not taken in the petition and we have therefore not pcnnitted the appellant to raise it before us, as it 15\n\na mixed question of fact and law. We may add that, though the objection was not taken in the petition, it seems to have been B urged before the appeal court. Das J. bas dealt with it at length and we would have agreed with him if we had permitted the question to be raised. This attack on the validity of what happened on March 29, 1958 must thus fail.\n\nWe have already said that the public company which came C into existence in 1957 was not bound by the agreement of 1954 and could offer shares to such persons as it decided to do in general meeting in accordance with s. 81. The mere fact that in the meeting of March 29, 1958 it was decided to offer shares to others and not to the existing shareholders would not therefore necessarily mean oppression of the minority shareholders.\n\nThe D majority shareholders were not bound to accept the view of the minority shareholders that new shares should be allotted only to the existing shareholders. It also appears that the Patnaik group wli afraid at the time when the new shares were being issued that as they had no money the appellant group would take up the entire E new issue and would thus obtain majority control of the Company. This they wanted to avoid and that is why the new issue was resolved in general meeting to be issued to others and not to the existing shareholders. If this was the reason why new shares were not issued to the existing shareholders it can hardly be said that the action of the majority shareholders in passing the resolu- F tion which they did on March 29, 1958 was oppressive to the minority shareholders.\n\nThe matter would have been different if the seven persons to whom shares were eventually allotted in July\n\n1958 were benamidars or stooges of the Patnaik or Loganathan group, for in that case it may be said that these two groups forming the majority in the general meeting had acted fraudulently and G unfairly by depriving the appellant of what he would have got under s. 81.\n\nBut there can be no doubt that the seven persons to whom the shares were eventually allotted are respectable persons of independent means.\n\nThere is nothing to show that they were stooges or benamindars of the Patnaik and Loganathan\n\ngrcups. The action of the majority shareholders in a !lotting the H new shares to outsiders and not to the existing shareholders cannot therefore in the circumstances be said to be oppfCl\\,5ive of the appellant and his group.\n\nSUPREME\n\nCOUJ.T\n\nREPORTS\n\n\nIt is true that by the beginning of 1958 there were differences .It. between the appellant and the Patnaik and Loganathan groups and there was loss of confidence between them. But mere loss of confidence between these groups of shareholders would not come within s. 397 unless it be shown that this lack of confidence sprang from a desire to oppress the minority in the management of the Company's afiairs and that there was at least an element of lack B of probity and fair dealing to a member in the matter of his proprietary right as a shareholder. It cannot be said on the facts on record of this case that there was any lack of probity or fair dealing towards the appellant in the matter of his proprietary right as a shareholder. It is true that he did not get any part of the new c issue; but equally the Patnaik and Loganathan groups also did not get any part of it, for there is no doubt that the persons to whom the shares were allotted eventually in July 1958 were not benamidars or stooges of the Patnaik and Loganathan groups. If the new allottees were benamidars or stooges of the Loganathan and Patnaik groups there might have been lack of probity or fair I> dealing in allotting the shares to them. Further the allotment of shares even at par did not in our opinion seriously affect the proprietary rights of the appellant as a shareholder. It is urged that the issue of new shares at par to others would depress the value of the existing shares.\n\nBut the evidence shows that by 1958 the Company which had gone into production in 1955 was mak.Tng J: profits and there is no reason to suppose that the same rate of profit would not have continued with the expansion envisaged by the increase in share capital.\n\nBesides, as the shares of the Company were not quoted on the Stock Exchange, it is impossible to say what impact the issue of new shares had on tbe value of the existing shares and whether the value of existing shares was de- F pressed, if at all, by the issue of new shares. It is not a case where new shares were issued as bonus, for the issue of bonus shares does necessarily affect the value of existing shares.\n\nBut these were issued on payment of ca8h for the purpose of expansion.\n\nIn the circumstances we cannot necesarily infer that the G value of the existing shares would have been seriously affected by the issue of new shares at par.\n\nSo it cannot be said that this was done in order to afiect the proprietary rights of the appellant as a shareholder. The issue of new shares which was done in March and July 1958 cannot therefore in our opinion amount to oppression of the appellant as a minority shareholder.\n\nIt is however urged that the haste with which the new shares were issued on July 30, 1958 shows a design to harm the appel-\n\n'\"\"\"'': <-::-'\n\nA !ant as a minority shareholder. It is no doubt true that the shares were issued in haste.\n\nBut as we have already indicated, the Company was in need of money for expansion and its getting the loan from the Industrial Finance Corporation also depended upon the increase of subscribed share capital. . Therefore, the haste\n\nB with which the shares were allotted on July 30, 1958 cannot really be said to be a part of a design to oppress the minority.\n\nThe haste became necessary because the interim injunction was vacated on that day and it was felt that if immediate action was not taken and the new shares allotted, there might be further injunction which would further delay the issue of shares and getting the C loan from the Industrial Finance Corporation.\n\nThe haste therefore appears to have occurred because of the action taken by the appellant in bringing a suit and getting a temporary injunction. It was feared that even after the vacation of the temporary injunction the appellant would go in appeal and get another injunction from the appeal court.\n\nThis fear was justified because the Subordinate D Judge's court two hours later withheld the operation of its order vacating the temporary injunction.\n\nThe haste in the particular circumstances of the case in allotment of shares cannot therefore lead to any inference of oppression but arose out of circumstancc5 brought about by the appellant's conduct.\n\nBut it is urged that even though the Company was in urgent E need of money it accepted only 5 per centum with the application and 10 per centum on allotment and that the remainder of the money did not come for a long time.\n\nAgain it is true that the remainder of the money did not come for sometime.\n\nIt also appears that out of the seven persons who had applied to take F shares six had to take loans from the Central Bank of India Limited to pay up the remainder of the money and that a part of the new capital (i.e. Rs. 7,65,000) was not received even till the time when the application under s. 397 was made. But that again in our opinion does not necessarily lead to the inference that there was oppression by the majority shareholders of the G appellant, once it is held that the seven persons to whom the new shares were allotted were not stooges or benamidars of the Patnaik and Loganathan groups.\n\nThere might be reasons why those persons were not in a position to pay the entire money at once and therefore borrowed money from the Bank to make up the full amount of the shares taken by them.\n\nFurther it appears that H there was a fight between the appellant group on the one side and the Patnaik and Loganathan groups on the other for the control of the Company. If the fear of Patnaik was correct that the\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n(1965] 2 S.C.R\n\nappcllant would have purchased all the shares worth Rs. 39 lacs A for want of money on the pan of Patnaik and Loganathan groups and would thus have obtained a dominating position in the Company, the action of the majority shareholders in preventing such domination by one group only and taking action for that purpose cannot in the circumstances be said to be oppressive of the minority shareholders. It is well to remember that if the appellant JI had got the entire new issue of Rs. 39 lacs because of the inability of the Patnaik and Loganathan groups to take up their two-thirds shares, the majority control would have vested in one group.\n\nBut the action of the majority shareholders in issuing new shares to others and not to the existing shareholders has brought about a c position where, after the issue of new shares even the Patnaik and Loganathan groups have no longer a majority and they have to carry tbe holders of the new shares with tbem in order to carry on the work of the Company.\n\nThe new holders are not the stooges and benamidars of the Patnaik and Loganathan groups and therefore after the action taken in March and July 1958 the Company D cannot be said to be dominated by any group but has become more broad-based as a public company should really be.\n\nThe fact that the Patnaik and Loganathan groups may be able to get the support of the holders of new shares doe> not necessarily mean oppression of the appellant, for the new shareholders may support the Loganathan and Patnaik groups on the ground that such sup- E port would be for the benefit of the Company.\n\nFinally it is urged that the whole object of the Patnaik and Loganathan groups was to get control over 75 per centum of shares of the Company, for a voting strength of 75 per centum l is required to pass a special resolution without wl:iich complete control of a company is impossible.\n\nTherefore it is said that Loganathan and Patnaik groups so manoeuvred the affairs tat they should be able to get over 7 5 per centum of the o.ang strength. It is urged that if the new shares had been d1V1ded equally between the three groups the Patnaik and Loganathan G groups would not have been able to control over 75 per centum shares.\n\nThis argument again would have some force if the new shares had been allotted to stooges and benamidars of the Patnaik and Loganathan groups.\n\nBut as the shareholdings stand, after the action of March and July 1958, the position is that roughly Patnaik and Loganathan groups between themselves have ff got shares worth Rs. 3 8 lacs, the appellant has got shares worth Rs. 19 lacs and shares worth Rs. 39 lacs are held by the new\n\nA a.llottees and shares worth about Rs. 4 lacs by the French company.\n\nSo unless the Patnaik and Loganathan groups are able to persuade the new a.llottees always t.o vote with them they would not be in control of over 75 per centum of shares.\n\nThe argument that all this was done to give the Patnaik and Loganathan groups JI control over 7 5 per centum of shares in the Company does not therefore .appear to be well-founded when we remember that the new allottees are not stooges or benamidars of these two groups.\n\nThe fact that the shares were issued presumably to the friends of Patnaik and Loganathan groups is hardly of any significance in the matter of oppression, for if shares are issued privately they c are bound to go to friends of the direct.ors.\n\nThe case 'of oppression therefore based on the agreement of July 1954 as the sheet-anchor of the appellant's case must fail. In the first place that agreement was strictly speaking not binding even on the private company-it was muchless binding on the public company when it came into existence in 1957. The agrec- D ment did not contain any specific provision as to future issue of capital. Further at the time when the agreement took place the appellant was not even a member of the private company and it was really an agreement between a non-member and two members of the Company, which would go to show that the agreement E could in no circumstances bind the Company. It is true that for sometime the agreement was in the main carried out when the capital was actually increased up t.o Rs. 61 lacs, the appellant getting one-third of it barring the French company's share3.\n\nWhen, however, the Company was made into a public company, some of the terms of the agreement could not be put even in the F Articles of Association of the public company.\n\nBut it is said that if the Patnaik and Loganathan groups had behaved like hqnourable men, the agreement could still have been carried out after the Company became a public company and that these two groups did not behave honourably when they gave the go-by to the agreement completely.\n\nThere is some force in the contention that G Loganathan and Patnaik groups, when they were in need of the appellant, took his help; it also docs appear that when the Company had turned the comer and it was felt that the apoellant's help was not absolutely necessary, these two groups thought it unneceiaary to carry out lhe spirit of the agreement (though not the terms for the terms had nothing to do with the future increase of capital H and its distribution).. But can it be said that the conduct of the affairs of the Company was carried on oppressively merely. because these two groups which in March and July 1958 were in\n\nSUPREME\n\nCOURT llEPOllTS [1965] 2 S.C.ll.\n\nmajority did not carry out the spirit of the agreement? We have A. given anxious consideration to this aspect of the matter and we feel that, though the Patnaik and Loganathan groups did take advantage of the help given by the appellant when the Complll)y was in a difficult situation. the fact that when new issue was made on behalf of the public company, they decided to make it more broadba..00 and issue the shares to others and not to the existing share- B holders, cannot be said to be oppressive of the then minority shareholders, namely, the appellant's group.\n\nWe have already pointed out that it cannot be said to have been proved in this case that the appellant suffered in his proprietary rights as a shareholder and in these circumstances it cannot be said that the action C taken in March and July 1958 in the allotment of the new shares amounted to such oppression of the appellant as would justify an order under s. 397.\n\nReference then may be made to the proposed increase of shares for which a meeting was called on September 21, 1960 and which gave further cause to the appellant to move the appli- D cation which he did on September 14, 1960. In that meeting it was proposed to increase the share capital by rupees two crores, one crore of which was to be in equity shares and the other crore in preference shares. It is said that this was part of the design to fur.her reduce the shareholdings of the appellant in the Company E\n\nso that he may be driven out of it, for after the issue of the new proposed capital the appellant's holding of equity shares would be hardly 10 per centum of the entire equity capital. In the first place, as the meeting of September 21, 1960 was never held because of the injunction obtained by the appellant, we cannot say how the new shares would have been issued and whether they F would have been offered to the public for subscription to make the Company even more broad-based than it was then. If that was the intention that could hardly be called oppression of the appellant. Apart from that we fail to see why the appellant should be driven out of the Company and should be compelled to sell his shares simply because his proportion of equity capital is only 10 G per centum of the entire equity capital, for it is not in dispute that the Company is doing well and the appellant will get his dividends as any other shareholder.\n\nBut if the appellant means that it is not worth his while to invest his money in a company in which he is unable to have; an important-if not a controlling-voice, this shows that the real basis for the application in the present H case was not the oppression of the appellant as a minority 'hareholder but the feeling that the appellant who hoped to get control\n\nA of 'the Company had been thwarted by what took place in March and July 1958. If that is the real position, then it cannot be said that the Loganathan and Patnaik: groups acted with lack: of probity or fair dealing in thwarting the desire of the appellant to get control of the Company; nor can such conduct be said to be oppressive of a minority shareholder. The case of the appel- B !ant based on the agreement of July 27, 1954 therefore must fail and it must be held that even if that agreement was not carried out by the Company, which was not bound by it, there can be no case of oppression of the appellant.\n\nWe now come to the case under s. 398. It provides that any C members of a company who have rights to apply in virtue of s. 399 may complain (i) that the affairs of the company are being conducted in a manner prejudicial to the interests of the company, or\n\n(ii) that a material change has taken place in the management or control of the company and that by reason of such change, it is likely that the affairs of the company will be conducted in a manner D prejudicial to the interests of the company.\n\nOn such application being made, if the court is of opinion that the affairs of the company are being conducted as aforesaid or that by reason of any material change as aforesaid in the matter of management or control of a company, it is likely that the affairs of the company will be conducted as aforesaid, the court may, with a view to E bringing to an end or preventing the matters complained of or apprehended, make such order as it thinks fit.\n\nThis section only comes into play as the marginal note shows, when there is actual mismanagement or apprehension of mismanagement of the affairs of the company. It may be contrasted with s. 397 F which deals with oppression to the minority shareholders, whether there is prejudice to the company or not.\n\nIn the present case, the appellant relies on the following three circumstances to show that the affairs of the Company were being conducted in a manner prejudicial to its interests, namely-\n\n( i) that when the new shares worth Rs. 39 lacs G were issued in July 1958 only a small part of the sharemoney was received in the beginning;\n\n(ii) that the Patnaik and Loganathan groups removed Rs. 7 lacs from the coffers of the Company;\n\n(iii) that the Company lost the_ support of the H appellant.\n\nIt is true that when new shares of the value of Rs. 39 lacs were issued, the Company received only 15 per centum of the share\n\n748 SUPREME comT REPOJlTS\n\n\nmoney to begin with, namely, 5 per centum with the application A and 10 per centum on allotment.\n\nBut the evidence shows that though there was some delay in the receipt of 85 per centum of share money, shares worth Rs. 30 lacs were fully paid up in the financial year 1959-60, and the only amount outstanding in that year was Rs. 7,65,000 (i.e. 85 per centum of shares worth Rs. 9 lacs).\n\nThe slight delay in the payment of the full value of the B shares cannot therefore in the circumstances be said to be so prejudicial to the interests of the Company as to call for any action under s. 3 98 of the Act.\n\nAs to the removal of Rs: 7 lacs from the coffers of the Company by the Loganathan and Patnaik groups, it does not appear C from the application of the appellant that his complaint was that this sum was wrongfully removed by the two groups and there was any fraud with respect to its removal.\n\nThe real complaint of the appellant in this connection appears to have been that he was entitled to one-third of this amount of Rs. 7 lacs under the agreement, and his share of this amount was not given to him.\n\nThis D appears from a letter written by the appellant to Patnaik on October 16, 1957 in which he asked that he should be paid his one-third share of this sum of Rs. 7 lacs with interest. It is not in dispute that the sum of Rs. 7 lacs was due from the Company to the Kalinga Industrial Development Corporation Limited and E therefore the withdrawal of this amount from the Company by the Patnaik and Loganathan groups which controlled the Kalinga Industrial Development Corporation which was the managing agent of the Company before July 1954 cannot be said to amount to conducting the affairs of the Company prejudicially to its interests, whatever may be the rights of the appellant in the p matter of getting one-third of this amount from the Loganathan and Patnaik groups. If he has any right under the agreement of July 27, 1954 in this matter he can enforce it in such way as may be open to him; but it cannot be said in the circumstances that this withdrawal from the Company was in any way prejudicial to the affairs of the Company, when it is clear that the Comp2ny G owed the amount to the fonner managing agent.\n\nThe last point that has been urged in this connection is that the Company lost the support of the appellant in view of the action taken by the Patnaik and Loganathan grouns in March and July 1958.\n\nHere again it is true that the appellant was dissatisfied with what had happened in March a:nd July 1958 with H regard to the allotJllent of shares worth Rs. 39 lacs and withdrew his support from the Company. If the Company was able to\n\nA carry on without this support as it apparently was in 1958, it cannot be said that the action which resulted in the loss of the appellant's support to the Company was necessarily prejudicial to it, it may be that the appellant was sore inasmuch as he must have felt that his assistance w.is taken when the Company was in need of such assistance; but later the Patnaik and Loganathan groups B acted in the manner in which they did when they felt that the appellant's support was no longer necessary to the Company. But if the appellant's support was no longer necessary to the Company by 1958 the action of the Patnaik and Loganathan groups which resulted in the loss of such support cannot be said to be C prejudicial to the interests of the Company. We therefore agree with the High Court that no case has been made out for action under s. 3 9 8 on the ground that the affairs of the Company were being conducted in a manner prejudicial to its interests.\n\nNor is thereany ground \\1r holding that because of the change which took place in the mam gement after July 1958 it was likely D that the affairs of the Company would be conducted in a manner prejudicial to its interests.\n\nThe change that took place after July 1958 was that the appellant no longer remained the chairman of the Company and the Fatnaik and Loganathan groups practically managed the Company without the appellant. But as E the High Court has pointed out there were no facts before the court to come to the conclus.ioa. that the change in management was likely to result in the affairs of the Company being conducted in a manner prejudicial to its interests. In this connection reliance is placed on certain matters which transpired after the application was filed on September 14, 1960.\n\nThese matters F however cannot be taken into account for the application has to be decided on the basis of the facts as they were when the application was made. Besides, as the High Court has pointed out, it has not been shown that in view of certain actions taken by the new management without consulting the appellant, the Company was landed in any difficulty and loss of profit which would show G mismanagement of its affairs .\n\n. Lastly it was stated in the application that accounts had not been shown to the appellant and his group and in consequence of this t11e appellant was not able to give full particulars of the several acts of fraud, misfeasance and other irregularities committed by the new management.\n\nBut as the High Court has H pointed out, the appellant asked for production of certain documents in April 1961 and those documenti; were made availabfo for inspection by the appellant and were produced in court. It was\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n(1965) 2 S.C.R.\n\nfor the appellant to take inspection ot those documents if he so A desired and the appeal court was right in pointing out that the learned Single Judge was not correct in drawing an adverse inference against the Company that it had disobeyed the orders of the court and had not produced the documents called for and had given no opportunity to the appellant for their inspection. It . seems to us that the appeal court was right in this view and no B case has been made out even prima facie for action under this part of s. 398 of the Act.\n\nThe appeals therefore fail and are hereby dismissed with cost~, .one set of hearing fee.\n\n Appeals dism;.ncd.", "total_entities": 172, "entities": [{"text": "S. P. JAIN", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "S. P. JAIN", "offset_not_found": false}}, {"text": "KALINGA TUBES LTD", "label": "RESPONDENT", "start_char": 15, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "KALINGA TUBES LTD", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 84, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "Section 81", "label": "PROVISION", "start_char": 2380, "end_char": 2390, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act, 1956", "label": "STATUTE", "start_char": 2398, "end_char": 2417, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "March 29, 1958", "label": "DATE", "start_char": 3083, "end_char": 3097, "source": "ner", "metadata": {"in_sentence": "in March 29, 1958."}}, {"text": "July 13, 1958", "label": "DATE", "start_char": 3305, "end_char": 3318, "source": "ner", "metadata": {"in_sentence": "On July 13, 1958, the appellant's suit was dismissed by the Subordinate Judge and the injunction vacated by him\n\nA at 11 A.M.\n\nThe Board of Directors at a meeting held on that date, immediately on reoeiving the news that the injunction had been vacated, allotted the new shares to seven persons who had previously applied for them."}}, {"text": "Section 397 and 398", "label": "PROVISION", "start_char": 4217, "end_char": 4236, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act, 1956", "label": "STATUTE", "start_char": 4244, "end_char": 4263, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 81", "label": "PROVISION", "start_char": 4688, "end_char": 4693, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1956", "statute": "the Companies Act, 1956"}}, {"text": "Companies Act, 1956", "label": "STATUTE", "start_char": 4701, "end_char": 4720, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "July 30, 1958", "label": "DATE", "start_char": 4775, "end_char": 4788, "source": "ner", "metadata": {"in_sentence": "At that stage the appellant filed a petition in the High Court under Section 397 and 398 of the Companies Act, 1956, complaining ;,.!er C alia, that the issue of new shares was in furtherance of a continuing oppression of the appellant's minority group; that by allotting such shares to benamidars of P and L in disregard of the agreement of July 1954, it was intended to exclude the appellant from all control of the affairs of the company; that the resolutions passed in March 1958 as to the manner of allotment of new shares contravened s. 81 of the Companies Act, 1956 and this resolution as well as the hasty allotment on July 30, 1958 were in abuse of the power of the P and L groups and oppressive D of the minority."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 5015, "end_char": 5028, "source": "ner", "metadata": {"in_sentence": "On appeal to the Supreme Court."}}, {"text": "section 397", "label": "PROVISION", "start_char": 5119, "end_char": 5130, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1956", "statute": "the Companies Act, 1956"}}, {"text": "section 397", "label": "PROVISION", "start_char": 5154, "end_char": 5165, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1956", "statute": "the Companies Act, 1956"}}, {"text": "section\n\n397", "label": "PROVISION", "start_char": 5335, "end_char": 5347, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1956", "statute": "the Companies Act, 1956"}}, {"text": "s. 81", "label": "PROVISION", "start_char": 7601, "end_char": 7606, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 7614, "end_char": 7627, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "March 28, 1958", "label": "DATE", "start_char": 7657, "end_char": 7671, "source": "ner", "metadata": {"in_sentence": "Furthermore the general meeting having decided that new shares should not be issued to the existing shareholders but to others, there was no contravention of s. 81 of the Companies Act 8 1956 and the resolution of March 28, 1958 was in accordance with law as it stood at the time. ("}}, {"text": "section 398", "label": "PROVISION", "start_char": 9035, "end_char": 9046, "source": "regex", "metadata": {"statute": null}}, {"text": "Orissa High Court", "label": "COURT", "start_char": 9297, "end_char": 9314, "source": "ner", "metadata": {"in_sentence": "Appeals from the judgment and order dated April 18, 1963 of the Orissa High Court in A.H.O. No."}}, {"text": "N. C. Chatterjee", "label": "OTHER_PERSON", "start_char": 9376, "end_char": 9392, "source": "ner", "metadata": {"in_sentence": "r N. C. Chatterjee, S. Ray Chowdhury, M. L. lhunjhunwa/a, S. Murty and B. P. Maheshwari, for the appellant (in all the appeals)."}}, {"text": "S. Ray Chowdhury", "label": "OTHER_PERSON", "start_char": 9394, "end_char": 9410, "source": "ner", "metadata": {"in_sentence": "r N. C. Chatterjee, S. Ray Chowdhury, M. L. lhunjhunwa/a, S. Murty and B. P. Maheshwari, for the appellant (in all the appeals)."}}, {"text": "M. L. lhunjhunwa", "label": "OTHER_PERSON", "start_char": 9412, "end_char": 9428, "source": "ner", "metadata": {"in_sentence": "r N. C. Chatterjee, S. Ray Chowdhury, M. L. lhunjhunwa/a, S. Murty and B. P. Maheshwari, for the appellant (in all the appeals)."}}, {"text": "S. Murty", "label": "LAWYER", "start_char": 9432, "end_char": 9440, "source": "ner", "metadata": {"in_sentence": "r N. C. Chatterjee, S. Ray Chowdhury, M. L. lhunjhunwa/a, S. Murty and B. P. Maheshwari, for the appellant (in all the appeals)."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 9445, "end_char": 9461, "source": "ner", "metadata": {"in_sentence": "r N. C. Chatterjee, S. Ray Chowdhury, M. L. lhunjhunwa/a, S. Murty and B. P. Maheshwari, for the appellant (in all the appeals)."}}, {"text": "M. C. Seta", "label": "LAWYER", "start_char": 9504, "end_char": 9514, "source": "ner", "metadata": {"in_sentence": "M. C. Seta/vad, A. V. Viswanatha Sastri, Ranadeb Chaudhri, M. K. Banerjee, I. B. Dadachanji, 0."}}, {"text": "A. V. Viswanatha Sastri", "label": "LAWYER", "start_char": 9520, "end_char": 9543, "source": "ner", "metadata": {"in_sentence": "M. C. Seta/vad, A. V. Viswanatha Sastri, Ranadeb Chaudhri, M. K. Banerjee, I. B. Dadachanji, 0."}}, {"text": "Ranadeb Chaudhri", "label": "LAWYER", "start_char": 9545, "end_char": 9561, "source": "ner", "metadata": {"in_sentence": "M. C. Seta/vad, A. V. Viswanatha Sastri, Ranadeb Chaudhri, M. K. Banerjee, I. B. Dadachanji, 0.", "canonical_name": "Ranadeb Chaudhuri"}}, {"text": "M. K. Banerjee", "label": "LAWYER", "start_char": 9563, "end_char": 9577, "source": "ner", "metadata": {"in_sentence": "M. C. Seta/vad, A. V. Viswanatha Sastri, Ranadeb Chaudhri, M. K. Banerjee, I. B. Dadachanji, 0."}}, {"text": "I. B. Dadachanji", "label": "LAWYER", "start_char": 9579, "end_char": 9595, "source": "ner", "metadata": {"in_sentence": "M. C. Seta/vad, A. V. Viswanatha Sastri, Ranadeb Chaudhri, M. K. Banerjee, I. B. Dadachanji, 0."}}, {"text": "0. C. Mathur", "label": "LAWYER", "start_char": 9597, "end_char": 9609, "source": "ner", "metadata": {"in_sentence": "M. C. Seta/vad, A. V. Viswanatha Sastri, Ranadeb Chaudhri, M. K. Banerjee, I. B. Dadachanji, 0."}}, {"text": "Ravinder G Narain", "label": "LAWYER", "start_char": 9614, "end_char": 9631, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder G Narain for respondent No.", "canonical_name": "Ravinder G Narain"}}, {"text": "Ranadeb Chaudhuri", "label": "LAWYER", "start_char": 9655, "end_char": 9672, "source": "ner", "metadata": {"in_sentence": "Ranadeb Chaudhuri and /. B. Dadachanji, for respondent No.", "canonical_name": "Ranadeb Chaudhuri"}}, {"text": "B. Dadachanji", "label": "LAWYER", "start_char": 9680, "end_char": 9693, "source": "ner", "metadata": {"in_sentence": "Ranadeb Chaudhuri and /. B. Dadachanji, for respondent No."}}, {"text": "G. S. Pathak", "label": "LAWYER", "start_char": 9718, "end_char": 9730, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak, B, Dutta and /. B. Dadachanji, for respondent ~1 H A. V. Viswanatha Sastri and/. B. Dadachanji, for respondent No.4."}}, {"text": "B, Dutta", "label": "LAWYER", "start_char": 9732, "end_char": 9740, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak, B, Dutta and /. B. Dadachanji, for respondent ~1 H A. V. Viswanatha Sastri and/. B. Dadachanji, for respondent No.4."}}, {"text": "H A. V. Viswanatha Sastri", "label": "LAWYER", "start_char": 9781, "end_char": 9806, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak, B, Dutta and /. B. Dadachanji, for respondent ~1 H A. V. Viswanatha Sastri and/. B. Dadachanji, for respondent No.4."}}, {"text": "A Sachin Chowdhury", "label": "LAWYER", "start_char": 9905, "end_char": 9923, "source": "ner", "metadata": {"in_sentence": "s. P • .JAIN v. KALINGA TUBBS (Wanchoo, /.) 723\n\nA Sachin Chowdhury, S. N. Andley, Rameshwar Nath and P. L.\n\nYohra, for the respondent Nos."}}, {"text": "S. N. Andley", "label": "LAWYER", "start_char": 9925, "end_char": 9937, "source": "ner", "metadata": {"in_sentence": "s. P • .JAIN v. KALINGA TUBBS (Wanchoo, /.) 723\n\nA Sachin Chowdhury, S. N. Andley, Rameshwar Nath and P. L.\n\nYohra, for the respondent Nos."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 9939, "end_char": 9953, "source": "ner", "metadata": {"in_sentence": "s. P • .JAIN v. KALINGA TUBBS (Wanchoo, /.) 723\n\nA Sachin Chowdhury, S. N. Andley, Rameshwar Nath and P. L.\n\nYohra, for the respondent Nos."}}, {"text": "P. L.\n\nYohra", "label": "LAWYER", "start_char": 9958, "end_char": 9970, "source": "ner", "metadata": {"in_sentence": "s. P • .JAIN v. KALINGA TUBBS (Wanchoo, /.) 723\n\nA Sachin Chowdhury, S. N. Andley, Rameshwar Nath and P. L.\n\nYohra, for the respondent Nos."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 10012, "end_char": 10026, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, /. B. Dadachanji, 0."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 10082, "end_char": 10097, "source": "ner", "metadata": {"in_sentence": "C.\n\nMathur and Ravinder Narain, for respondent No.", "canonical_name": "Ravinder G Narain"}}, {"text": "Sachin Chowdhury", "label": "LAWYER", "start_char": 10123, "end_char": 10139, "source": "ner", "metadata": {"in_sentence": "Sachin Chowdhury, B. Sen, Dipak Dutta Chowdhury, for res- • pondent No."}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 10141, "end_char": 10147, "source": "ner", "metadata": {"in_sentence": "Sachin Chowdhury, B. Sen, Dipak Dutta Chowdhury, for res- • pondent No."}}, {"text": "Dipak Dutta Chowdhury", "label": "LAWYER", "start_char": 10149, "end_char": 10170, "source": "ner", "metadata": {"in_sentence": "Sachin Chowdhury, B. Sen, Dipak Dutta Chowdhury, for res- • pondent No."}}, {"text": "Niren De", "label": "LAWYER", "start_char": 10200, "end_char": 10208, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General and Rajinder Narain &: Co. for respondent No."}}, {"text": "Rajinder Narain", "label": "LAWYER", "start_char": 10243, "end_char": 10258, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General and Rajinder Narain &: Co. for respondent No.", "canonical_name": "Ravinder G Narain"}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 10290, "end_char": 10301, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-General and Rajinder Narain, &: Co. for n:spondent No."}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 10417, "end_char": 10424, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nWanchoo, 1."}}, {"text": "Kalinga TuJ>es Limited", "label": "ORG", "start_char": 10681, "end_char": 10703, "source": "ner", "metadata": {"in_sentence": "They are a consequence of\n\n~ fight between two groups of business magnates for the control D al Messrs. Kalinga TuJ>es Limited (hereinafter referred to as the Company)."}}, {"text": "ss. 397, 398, 402 and 403", "label": "PROVISION", "start_char": 10785, "end_char": 10810, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 10825, "end_char": 10838, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "December 1, 1950", "label": "DATE", "start_char": 11272, "end_char": 11288, "source": "ner", "metadata": {"in_sentence": "The Company was floated as a private limited company on December 1, 1950 with an authorised capital of Rs."}}, {"text": "Patnaik", "label": "PETITIONER", "start_char": 11514, "end_char": 11521, "source": "ner", "metadata": {"in_sentence": "These groups of shareholders lllllY for our purposes be taken to be represented by Patnaik and Loganathan.", "canonical_name": "Patnaik"}}, {"text": "Loganathan", "label": "PETITIONER", "start_char": 11526, "end_char": 11536, "source": "ner", "metadata": {"in_sentence": "These groups of shareholders lllllY for our purposes be taken to be represented by Patnaik and Loganathan.", "canonical_name": "Loganathan groups"}}, {"text": "Government of Orissa", "label": "ORG", "start_char": 11649, "end_char": 11669, "source": "ner", "metadata": {"in_sentence": "36 lacs by the issue\n\nof two series of debentures which were guaranteed by the Government of Orissa between 1952 to 1954."}}, {"text": "Mohanty", "label": "OTHER_PERSON", "start_char": 11739, "end_char": 11746, "source": "ner", "metadata": {"in_sentence": "In 1954, the appellant G was approached by Dr. Mohanty, then Secretary to Government\n\n.of Orissa (Industries Department) which was naturally interested in the Company having guaranteed debentures to the tune of Rt."}}, {"text": "July 27, l 9S4", "label": "DATE", "start_char": 12236, "end_char": 12250, "source": "ner", "metadata": {"in_sentence": "The appellant agreed to do so and comequently on July 27, l 9S4, an agreement was entered into\n\n7.24\n\nSUPIUIME COURT llPOJlTS\n\n(1965) 2 S.C.ll\n\nbetween the appellant, and Patnaik and Loganathan."}}, {"text": "Logan_athan", "label": "PETITIONER", "start_char": 12640, "end_char": 12651, "source": "ner", "metadata": {"in_sentence": "however, the agreement provided that the appellant wouid be allotted shares in the Company equal to those held by Patnaik and Logan_athan after in.creasing the share capital of the Co!npany.", "canonical_name": "Loganathan groups"}}, {"text": "Patnaik", "label": "PETITIONER", "start_char": 12797, "end_char": 12804, "source": "ner", "metadata": {"in_sentence": "Thus the Company would have three groups of share- B holders represented by the appellant, Patnaik an<l Loganathan holding equal number of shares, besides a French company and one Rath, who between themselves held shares worth Rs.", "canonical_name": "Patnaik"}}, {"text": "Rath", "label": "OTHER_PERSON", "start_char": 12886, "end_char": 12890, "source": "ner", "metadata": {"in_sentence": "Thus the Company would have three groups of share- B holders represented by the appellant, Patnaik an<l Loganathan holding equal number of shares, besides a French company and one Rath, who between themselves held shares worth Rs."}}, {"text": "Jain", "label": "PETITIONER", "start_char": 13384, "end_char": 13388, "source": "ner", "metadata": {"in_sentence": "And finally, the appellant Jain was to be the chairman of the Company.", "canonical_name": "Jain"}}, {"text": "August 16, 1954", "label": "DATE", "start_char": 13506, "end_char": 13521, "source": "ner", "metadata": {"in_sentence": "This agreement was D followed by certain resolutions passed by the Company on August 16, 1954 by which some of the terms of the agreement were stibstantially carried out, the authorised capital was increased to rupees one crore (though it was issuecl later in instalments), and the appellant was made the chairman of the Company."}}, {"text": "Narayanswami", "label": "OTHER_PERSON", "start_char": 13998, "end_char": 14010, "source": "ner", "metadata": {"in_sentence": "In January 1955, Narayanswami who had been appointed Managing Director resigned and Patnaik was appointed the Managing Director."}}, {"text": "Loganathan", "label": "PETITIONER", "start_char": 14302, "end_char": 14312, "source": "ner", "metadata": {"in_sentence": "61 lacs and the three groups, namely, the appellant Jain, Patnaik and Loganathan held one-third of the shares leavuig out shares held by the French company.", "canonical_name": "Loganathan groups"}}, {"text": "LOganathan", "label": "PETITIONER", "start_char": 14789, "end_char": 14799, "source": "ner", "metadata": {"in_sentence": "In September 1956, a resolution was passed by the Board of\n\nPirectors referring the question of conversion of the Company to a public limited company to a subommittee consisting of the appellant, LOganathan and Patnaik.", "canonical_name": "Loganathan groups"}}, {"text": "January 11, 1957", "label": "DATE", "start_char": 15608, "end_char": 15624, "source": "ner", "metadata": {"in_sentence": "On January 11, 1957, the Company was converted into a public company and the Articles of Association were amended."}}, {"text": "July 27, 1954", "label": "DATE", "start_char": 15802, "end_char": 15815, "source": "ner", "metadata": {"in_sentence": "Even so, no attempt was made to incorporate the terms of the agree- C ment dated July 27, 1954 in the Articles of Association so amended."}}, {"text": "July 27, 1964", "label": "DATE", "start_char": 16661, "end_char": 16674, "source": "ner", "metadata": {"in_sentence": "At that time also nothing was put therein on the basis of the agreement dated July 27, 1964."}}, {"text": "s. 81", "label": "PROVISION", "start_char": 16871, "end_char": 16876, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 81", "label": "PROVISION", "start_char": 16996, "end_char": 17001, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 81", "label": "PROVISION", "start_char": 17526, "end_char": 17531, "source": "regex", "metadata": {"statute": null}}, {"text": "COURT JlEPOllTS", "label": "JUDGE", "start_char": 17700, "end_char": 17715, "source": "ner", "metadata": {"in_sentence": "COURT JlEPOllTS\n\n[1'65) 2 S.C.R\n\nand Loganathan and Patnaik groups held two-thirds share except A for certain shares held by the French company and therefore in the absence of a direction to the contrary at a general meeting, the new shares would also have gone in equal shares to the three groups subject to the shares which would go to the French Company."}}, {"text": "Patnaik groups", "label": "ORG", "start_char": 17752, "end_char": 17766, "source": "ner", "metadata": {"in_sentence": "COURT JlEPOllTS\n\n[1'65) 2 S.C.R\n\nand Loganathan and Patnaik groups held two-thirds share except A for certain shares held by the French company and therefore in the absence of a direction to the contrary at a general meeting, the new shares would also have gone in equal shares to the three groups subject to the shares which would go to the French Company."}}, {"text": "March l, 1958", "label": "DATE", "start_char": 18155, "end_char": 18168, "source": "ner", "metadata": {"in_sentence": "B The question of the issue of new shares came up before a meeting of the Board of Directors on March l, 1958, and the differences between the three groups which had already begun came to the surface at that time."}}, {"text": "s. 81", "label": "PROVISION", "start_char": 18403, "end_char": 18408, "source": "regex", "metadata": {"statute": null}}, {"text": "March 1, 1958", "label": "DATE", "start_char": 19550, "end_char": 19563, "source": "ner", "metadata": {"in_sentence": "Consequently, Patnaik put forward the resolution already referred to at the meeting of the Board of Direc- F tors on March 1, 1958 which provided for calling a general meeting for directions as to the issue of new shares, which directions it was hoped would override the provisions of s. 81 of the Act."}}, {"text": "s. 81", "label": "PROVISION", "start_char": 19718, "end_char": 19723, "source": "regex", "metadata": {"statute": null}}, {"text": "Loganathan groups", "label": "ORG", "start_char": 19855, "end_char": 19872, "source": "ner", "metadata": {"in_sentence": "Patnaik's resolution was passed and the appellant's proposal was outvoted for the obvious reason that the Patnaik and Loganathan groups held the majority of shares."}}, {"text": "Patnaik Loganathan groups", "label": "ORG", "start_char": 20777, "end_char": 20802, "source": "ner", "metadata": {"in_sentence": "The second resolution on behalf of the Patnaik Loganathan groups proposed B that the new shares should not be offered or allotted to the existing sliareholders or to the public and that they should be allotted privately in the best interest of the Company at the sole discretion of the directors to such persons as might have applied or thereafter apply on the condition that atleast 5 per centum of the face C value of shares applied for was paid as application money and IO per centum of the face value was paid on allotment and the balance paid as and when called upon in accordance with the Articles of Association of the Company."}}, {"text": "Loganathan D groups", "label": "ORG", "start_char": 21516, "end_char": 21535, "source": "ner", "metadata": {"in_sentence": "As was to be expected, the resolution put forward on behalf of the appellant was lost and the resolutions put forward on behalf of Patnaik and Loganathan D groups as to the allotment of new shares were passed."}}, {"text": "April 18, 1958", "label": "DATE", "start_char": 21681, "end_char": 21695, "source": "ner", "metadata": {"in_sentence": "This was followed on April 18, 1958, by a suit by the appellant and some other shareholders of his group for a declaration that the resolutions dated March 29, 1958 were ultra vires, illegal, void i: and not binding on the appellant, the Company and its shareholders with a prayer for permanent injunction restraining the defendnats in the suit (namely, the other two groups) and their\n\nervants and agents from giving effect to or acting in any way in pursuance of the said resolutions and further restraining each of the defendants, their servants and agents from issuing and alloting F the new shares in terms of the impugned resolutions."}}, {"text": "Subordinate Judge, Cuttack", "label": "COURT", "start_char": 22341, "end_char": 22367, "source": "ner", "metadata": {"in_sentence": "That suit was filed in the court of the Subordinate Judge, Cuttack."}}, {"text": "May 15, 1958", "label": "DATE", "start_char": 22881, "end_char": 22893, "source": "ner", "metadata": {"in_sentence": "This matter came up before the court on May 15, 1958."}}, {"text": "naik", "label": "OTHER_PERSON", "start_char": 24904, "end_char": 24908, "source": "ner", "metadata": {"in_sentence": "The case of the appellant was that the seven persons to whom the new shares were allotted were nominees or benamidars of Pat- , naik and Loganathan and therefore these groups really allotted the new shares to themselves through their benamidars."}}, {"text": "Stember 21, 1960", "label": "DATE", "start_char": 25664, "end_char": 25680, "source": "ner", "metadata": {"in_sentence": "To continue the narrative, it appears that an extraordinary general meeting of the Company was called on Stember 21, 1960 to consider increasing the share capital froin rupees one crore on which it stood after the increase in 1958 to rupees three crores H by issue of additional equity shares numbering one lac of the value of rupees one crore and the issue of another one lac cumulative\n\ns. P. JAIN v. KALINGA TUBBS (Wanchoo, J.) 729\n\nA redeemable income-tax free preference shares of the value of rupees\n\none crore subject to such rights and privileges attaching to such preference shares as might be specified in the new Article to be inserted in the Articles of Association."}}, {"text": "August 25, 1960", "label": "DATE", "start_char": 26456, "end_char": 26471, "source": "ner", "metadata": {"in_sentence": "This meeting was called by a notice issued on August 25, 1960."}}, {"text": "s. 397", "label": "PROVISION", "start_char": 26544, "end_char": 26550, "source": "regex", "metadata": {"statute": null}}, {"text": "September 14, 1960", "label": "DATE", "start_char": 26559, "end_char": 26577, "source": "ner", "metadata": {"in_sentence": "on September 14, 1960 by the appellant."}}, {"text": "Patnaik and Loganathan groups", "label": "ORG", "start_char": 27076, "end_char": 27105, "source": "ner", "metadata": {"in_sentence": "It was urged in the application that this issue of new shares was in further- C ance of the continuing and continuous process of oppression of the appellant and his group being the minority shareholders and was designed for the purpose of completely excluding the appellant and his group from all control in the affairs of the Company and to deprive the financial advantage to be gained by them by the\n\n0 issue of new shares at par and to retain such advantage exclusively to the Patnaik and Loganathan groups so that the appellant and his group might be forced to sell their holdings to the Patnaik and Loganathan groups at a nominal value."}}, {"text": "Patniak and Loganathan groups", "label": "ORG", "start_char": 27414, "end_char": 27443, "source": "ner", "metadata": {"in_sentence": "That was why the new shares were being offered to outsiders and not to the existing shareholders, the object being to offer the shares to nominees I: and/ or benamidars of the Patniak and Loganathan groups and to such persons who would be within their control."}}, {"text": "Patnaik and Loganathan B groups", "label": "ORG", "start_char": 29205, "end_char": 29236, "source": "ner", "metadata": {"in_sentence": "This was also in breach and violation of the agreement dated July 27, 1954 to which the Patnaik and Loganathan B groups were parties."}}, {"text": "Loganathan and", "label": "ORG", "start_char": 29427, "end_char": 29441, "source": "ner", "metadata": {"in_sentence": "Further it was said that although in form the Company was a public company in reality it was a partnership consisting of the three groups namely, the appellant's group, and of Loganathan and Patnaik groups."}}, {"text": "s. 397", "label": "PROVISION", "start_char": 30254, "end_char": 30260, "source": "regex", "metadata": {"statute": null}}, {"text": "July 29, 1954", "label": "DATE", "start_char": 31344, "end_char": 31357, "source": "ner", "metadata": {"in_sentence": "The appellant therefore prayed for the removal G of the present Board of Directors, for re-constitution of the Board of Directors with at least two permanent representatives from his group and for ensuring equal representation in the Board of the three groups of shareholders, and for alterations in the Articles of Association to incorporate therein the provisions of the agreement dated July 29, 1954."}}, {"text": "Patnaik", "label": "JUDGE", "start_char": 31587, "end_char": 31594, "source": "ner", "metadata": {"in_sentence": "The appellant also sought a declara- H tion that the resolutions passed by the Board of Directors on March 1, 1958 and at the general meeting dated March 29, 1958,\n\nA were null and void and were passed in abuse of the power of\n\nPatnaik and Loganathan groups and in oppression of the minority shareholders and prayed that the said resolutions be set aside in so far as they related to the issue and allotment of 39,000 new shares. '", "canonical_name": "Patnaik"}}, {"text": "July 29, 1958", "label": "DATE", "start_char": 32291, "end_char": 32304, "source": "ner", "metadata": {"in_sentence": "It was prayed that directions be given to sell the said 39,000 shares by the allottees to the Company upon payment of the amounts actually paid thereon so far C and the Company be permitted to offer the same to the shareholders as on July 29, 1958 in proportion to their respective shareholdings."}}, {"text": "September 21, 1960", "label": "DATE", "start_char": 32440, "end_char": 32458, "source": "ner", "metadata": {"in_sentence": "An injunction was also prayed for restraining the Company from holding the meeting on September 21, 1960."}}, {"text": "July 11, 1957", "label": "DATE", "start_char": 36251, "end_char": 36264, "source": "ner", "metadata": {"in_sentence": "The Division Bench came to the conci'Jsion that the agreement of July 27, 1954 was not binding on the public company which came into existence after July 11, 1957, whatever might have been the position under the agreement when it was a private company."}}, {"text": "s. 397", "label": "PROVISION", "start_char": 37121, "end_char": 37127, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 397", "label": "PROVISION", "start_char": 37604, "end_char": 37610, "source": "regex", "metadata": {"statute": null}}, {"text": "This is a new provision which came for the first time in the Indian Companies Act, 1913", "label": "STATUTE", "start_char": 37739, "end_char": 37826, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 210", "label": "PROVISION", "start_char": 37865, "end_char": 37871, "source": "regex", "metadata": {"linked_statute_text": "This is a new provision which came for the first time in the Indian Companies Act, 1913", "statute": "This is a new provision which came for the first time in the Indian Companies Act, 1913"}}, {"text": "English Companies Act, 1948", "label": "STATUTE", "start_char": 37880, "end_char": 37907, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 210", "label": "PROVISION", "start_char": 37986, "end_char": 37992, "source": "regex", "metadata": {"linked_statute_text": "the English Companies Act, 1948", "statute": "the English Companies Act, 1948"}}, {"text": "English Companies Act", "label": "STATUTE", "start_char": 38002, "end_char": 38023, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 210", "label": "PROVISION", "start_char": 38512, "end_char": 38518, "source": "regex", "metadata": {"linked_statute_text": "English Companies Act", "statute": "English Companies Act"}}, {"text": "s. 153", "label": "PROVISION", "start_char": 38965, "end_char": 38971, "source": "regex", "metadata": {"linked_statute_text": "English Companies Act", "statute": "English Companies Act"}}, {"text": "s. 397", "label": "PROVISION", "start_char": 38994, "end_char": 39000, "source": "regex", "metadata": {"linked_statute_text": "English Companies Act", "statute": "English Companies Act"}}, {"text": "Section 397", "label": "PROVISION", "start_char": 39016, "end_char": 39027, "source": "regex", "metadata": {"linked_statute_text": "English Companies Act", "statute": "English Companies Act"}}, {"text": "section 399", "label": "PROVISION", "start_char": 39403, "end_char": 39414, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 399", "label": "PROVISION", "start_char": 40083, "end_char": 40089, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 402", "label": "PROVISION", "start_char": 40129, "end_char": 40135, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 397", "label": "PROVISION", "start_char": 40418, "end_char": 40424, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 402", "label": "PROVISION", "start_char": 40435, "end_char": 40441, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 210", "label": "PROVISION", "start_char": 41105, "end_char": 41111, "source": "regex", "metadata": {"statute": null}}, {"text": "Meyer", "label": "OTHER_PERSON", "start_char": 41369, "end_char": 41374, "source": "ner", "metadata": {"in_sentence": "The law however has not defined what is oppression for purposes of this section, and it is left to courts to decide on the facts of each case whether there is such oppression as calls for action under this section.- F We may in this connection refer to four cases where the new s. 210 of the English Act came up for consideration, namely, (1) Elder v. Elder and Watson,('),\n\n(2) George Meyer v. Scottish Cooperative Wholesale Society Ltd.('), (3) Scottish Co-operative Wholesale Society Ltd. v. Meyer and another(•), which was an appeal from Meyer's case('), and\n\n(4) Re."}}, {"text": "s. 210", "label": "PROVISION", "start_char": 41523, "end_char": 41529, "source": "regex", "metadata": {"statute": null}}, {"text": "Eider", "label": "OTHER_PERSON", "start_char": 41570, "end_char": 41575, "source": "ner", "metadata": {"in_sentence": "have to be kept in view in determining the scope of s. 210, the following matters were stressed in Eider's case(') as summarised at p. 394 in Meyer's case(') :-\n\n\" (l) The oppression of which a petitioner complains must relate to the manner in which the affairs of the\n\n(I) (1952) s. c. 49:\n\n(2) (19541 s. c. 381:\n\n(3) (19581 3 All."}}, {"text": "s. 210", "label": "PROVISION", "start_char": 42986, "end_char": 42992, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 210", "label": "PROVISION", "start_char": 43992, "end_char": 44000, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 210", "label": "PROVISION", "start_char": 44520, "end_char": 44528, "source": "regex", "metadata": {"statute": null}}, {"text": "Harmer", "label": "OTHER_PERSON", "start_char": 44951, "end_char": 44957, "source": "ner", "metadata": {"in_sentence": "In Harmer's cal'e(1), it was held that \"the word 'oppressive' meant burdensome, harsh and wrongful\"."}}, {"text": "s. 210", "label": "PROVISION", "start_char": 45386, "end_char": 45392, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 210", "label": "PROVISION", "start_char": 46473, "end_char": 46479, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 210", "label": "PROVISION", "start_char": 46697, "end_char": 46703, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 210", "label": "PROVISION", "start_char": 46776, "end_char": 46782, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 397", "label": "PROVISION", "start_char": 47216, "end_char": 47222, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 210", "label": "PROVISION", "start_char": 47265, "end_char": 47271, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 397", "label": "PROVISION", "start_char": 47699, "end_char": 47705, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 397", "label": "PROVISION", "start_char": 48711, "end_char": 48717, "source": "regex", "metadata": {"statute": null}}, {"text": "LoganaLan", "label": "PETITIONER", "start_char": 48848, "end_char": 48857, "source": "ner", "metadata": {"in_sentence": "F The main plank of the appellant's case to prove oppression is the agreement of July 27, 1954 between himself and Patnaik and\n\nLoganaLan.", "canonical_name": "Loganathan groups"}}, {"text": "Jain", "label": "PETITIONER", "start_char": 53171, "end_char": 53175, "source": "ner", "metadata": {"in_sentence": "We have already pointed out that even when the Company was private its Articles of Association were not amended to bring them into line with the agreement and that shows that the agreement was only between two groups of shareholders and Jain with respect to the state of affairs as it was at the time of the agreement.", "canonical_name": "Jain"}}, {"text": "September 17, 1956", "label": "DATE", "start_char": 54192, "end_char": 54210, "source": "ner", "metadata": {"in_sentence": "The application to the Controller of Capital Issues was made for that purpose on September 17, 1956."}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 54830, "end_char": 54844, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 55758, "end_char": 55772, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 81", "label": "PROVISION", "start_char": 55848, "end_char": 55853, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 81", "label": "PROVISION", "start_char": 56445, "end_char": 56450, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 81", "label": "PROVISION", "start_char": 56521, "end_char": 56526, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 81", "label": "PROVISION", "start_char": 56890, "end_char": 56895, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 81", "label": "PROVISION", "start_char": 56909, "end_char": 56919, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 57080, "end_char": 57094, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 81", "label": "PROVISION", "start_char": 57270, "end_char": 57275, "source": "regex", "metadata": {"statute": null}}, {"text": "March 28', 1958", "label": "DATE", "start_char": 57326, "end_char": 57341, "source": "ner", "metadata": {"in_sentence": "Consequently it was open to the public company in 1958 when it proposed to increase the subscribed capital after the sanction of the Controller to act under s. 81 and this was what G was done by the resolution of March 28', 1958 at the general meeting."}}, {"text": "29th March, 1958", "label": "DATE", "start_char": 57714, "end_char": 57730, "source": "ner", "metadata": {"in_sentence": "It is however urged that the notice for the general meeting of the 29th March, 1958 was not in accordance with s. 173, and so\n\nA the proceedings of the meeting must be held to be bad."}}, {"text": "s. 173", "label": "PROVISION", "start_char": 57758, "end_char": 57764, "source": "regex", "metadata": {"statute": null}}, {"text": "Das", "label": "JUDGE", "start_char": 58125, "end_char": 58128, "source": "ner", "metadata": {"in_sentence": "Das J. bas dealt with it at length and we would have agreed with him if we had permitted the question to be raised."}}, {"text": "s. 81", "label": "PROVISION", "start_char": 58538, "end_char": 58543, "source": "regex", "metadata": {"statute": null}}, {"text": "Patnaik group", "label": "ORG", "start_char": 58940, "end_char": 58953, "source": "ner", "metadata": {"in_sentence": "It also appears that the Patnaik group wli afraid at the time when the new shares were being issued that as they had no money the appellant group would take up the entire E new issue and would thus obtain majority control of the Company."}}, {"text": "Patnaik or Loganathan group", "label": "ORG", "start_char": 59707, "end_char": 59734, "source": "ner", "metadata": {"in_sentence": "The matter would have been different if the seven persons to whom shares were eventually allotted in July\n\n1958 were benamidars or stooges of the Patnaik or Loganathan group, for in that case it may be said that these two groups forming the majority in the general meeting had acted fraudulently and G unfairly by depriving the appellant of what he would have got under s. 81."}}, {"text": "s. 81", "label": "PROVISION", "start_char": 59931, "end_char": 59936, "source": "regex", "metadata": {"statute": null}}, {"text": "Loganathan", "label": "RESPONDENT", "start_char": 60161, "end_char": 60171, "source": "ner", "metadata": {"in_sentence": "There is nothing to show that they were stooges or benamindars of the Patnaik and Loganathan\n\ngrcups.", "canonical_name": "Loganathan groups"}}, {"text": "s. 397", "label": "PROVISION", "start_char": 60690, "end_char": 60696, "source": "regex", "metadata": {"statute": null}}, {"text": "Loganathan and Patnaik groups", "label": "ORG", "start_char": 61522, "end_char": 61551, "source": "ner", "metadata": {"in_sentence": "If the new allottees were benamidars or stooges of the Loganathan and Patnaik groups there might have been lack of probity or fair I> dealing in allotting the shares to them."}}, {"text": "Central Bank of India Limited", "label": "ORG", "start_char": 65049, "end_char": 65078, "source": "ner", "metadata": {"in_sentence": "It also appears that out of the seven persons who had applied to take F shares six had to take loans from the Central Bank of India Limited to pay up the remainder of the money and that a part of the new capital (i.e. Rs."}}, {"text": "s. 397", "label": "PROVISION", "start_char": 65234, "end_char": 65240, "source": "regex", "metadata": {"statute": null}}, {"text": "JI", "label": "PETITIONER", "start_char": 66444, "end_char": 66446, "source": "ner", "metadata": {"in_sentence": "It is well to remember that if the appellant JI had got the entire new issue of Rs."}}, {"text": "Loganathan G groups", "label": "ORG", "start_char": 68132, "end_char": 68151, "source": "ner", "metadata": {"in_sentence": "It is urged that if the new shares had been d1V1ded equally between the three groups the Patnaik and Loganathan G groups would not have been able to control over 75 per centum shares."}}, {"text": "Patnaik and", "label": "ORG", "start_char": 68461, "end_char": 68472, "source": "ner", "metadata": {"in_sentence": "But as the shareholdings stand, after the action of March and July 1958, the position is that roughly Patnaik and Loganathan groups between themselves have ff got shares worth Rs."}}, {"text": "Loganathan groups", "label": "RESPONDENT", "start_char": 68743, "end_char": 68760, "source": "ner", "metadata": {"in_sentence": "So unless the Patnaik and Loganathan groups are able to persuade the new a.llottees always t.o vote with them they would not be in control of over 75 per centum of shares.", "canonical_name": "Loganathan groups"}}, {"text": "s. 397", "label": "PROVISION", "start_char": 72347, "end_char": 72353, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 398", "label": "PROVISION", "start_char": 74814, "end_char": 74820, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 399", "label": "PROVISION", "start_char": 74904, "end_char": 74910, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 397", "label": "PROVISION", "start_char": 75924, "end_char": 75930, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 77276, "end_char": 77280, "source": "regex", "metadata": {"statute": null}}, {"text": "October 16, 1957", "label": "DATE", "start_char": 77870, "end_char": 77886, "source": "ner", "metadata": {"in_sentence": "This D appears from a letter written by the appellant to Patnaik on October 16, 1957 in which he asked that he should be paid his one-third share of this sum of Rs."}}, {"text": "Kalinga Industrial Development Corporation Limited", "label": "ORG", "start_char": 78069, "end_char": 78119, "source": "ner", "metadata": {"in_sentence": "7 lacs was due from the Company to the Kalinga Industrial Development Corporation Limited and E therefore the withdrawal of this amount from the Company by the Patnaik and Loganathan groups which controlled the Kalinga Industrial Development Corporation which was the managing agent of the Company before July 1954 cannot be said to amount to conducting the affairs of the Company prejudicially to its interests, whatever may be the rights of the appellant in the p matter of getting one-third of this amount from the Loganathan and Patnaik groups."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 80201, "end_char": 80205, "source": "regex", "metadata": {"statute": null}}, {"text": "Fatnaik and Loganathan groups", "label": "ORG", "start_char": 80664, "end_char": 80693, "source": "ner", "metadata": {"in_sentence": "The change that took place after July 1958 was that the appellant no longer remained the chairman of the Company and the Fatnaik and Loganathan groups practically managed the Company without the appellant."}}, {"text": "s. 398", "label": "PROVISION", "start_char": 82625, "end_char": 82631, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_2_751_755_EN", "year": 1965, "text": "CHHITARMAL v.\n\nM/S, SHAH PANNALAL CHANDULAL\n\nJanuary 14, 1965\n\n[K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH,\n\nJ. R. MUD!!OLKAR AND s. M. Srroo JJ.J\n\nConstitution of India, Art. 133(l)(a) and 133(1)(b)-Requirements for grant of certificates to appeal to Supreme Court,\n\nThe petitioner filed a suit in the court of the Sub-Judge claiming a decree for Rs. 10,665 and any balance ascertained as due to him on taking account, being proceeds of sales made by the respondents as the petitioner's agents. ·\n\nThe trial court passed a decree directing that an account be taken of the amount due and appointed a Commissioner for the purpose.\n\nJn appeal the High Court reversed the decree and dismissed the suit.\n\nAn application filed by the petitioner for a certificate under Art. 133 was rejected by the High Court.\n\nUpon a petition for special leave to appeal under Art. 136, it was contended on behalf of the petitioner, that the judgment of the High Court involved a claim or question respecting property of a value exceeding Rs. 2.0,000 and the petitioner was entitled as a matter of right to a certificate from the High Court under Art. 133(1)(b).\n\nHELD : Under cl. (a) what is decisive is the amount or value of tho subject-matter in the court of first instance and \"still in dispute\" in appeal to the Supreme Court; under cl. (b) it is the amount or value of the property respecting which a claim or question is involved in the judgment sought to be appealed from.\n\nThe expression \"property\" i.! not defined in the Code, but having regard to the use of the expression\n\n\"amount\" it would apparently include money.\n\nThe property respecting which the claim or question arises must be property in addition to or other than the subject-matter of the dispute. If in a proposed appeal there is no claim or question raiS\"\"..d respecting property other than the subject-matter, cl. (a) will apply: if there is involved in the appeal a claim or question respecting property of an amount or value not less than Rs. 20,000 in addition to or other than the subject-matter of the dispute cl. (b) will apply. (754 B-E] In tho present case, the claim in the coun of first instance did not reach Rs. 2u.OOO, and therefore a certificate could not be granted under Art. 133(l)(a). [754 Al It could not be said that a judgment dealing with a claim to money alleged to be due from an agent for price of goods belonging to the principal, sold by the agent, involved a claim or question respecting the goods which had been sold.\n\nFurthermore, although the petitioner's claim on appeal including interest exceeded Rs. 20,000, this was still the subject-matter in dispute; the judgment did not involve any claim or question respecting property in addition to or other than the subjectmatter of the suit.\n\nArticle 133 (I )(b) was, therefore, also not applicable. [754 G-H; 755 A]\n\nCIVIL APPELLATE JURISDICTION : Special Leave Petition /j. (Civil) No. 890 of 1964.\n\nPetition for special leave to appeal to the Supreme Court from 'the judgment and decree dated December 16, 1963 of the Rajasthan High Court in Civil First Appeal No. 54 of 1956.\n\nMukat Behari Lal Bhargava, Zalim Singh, Meeratwal and Nau- \" it Lal, for the petitioner\n\nM. C. Setalvad, and I. N. Shroff, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nShah, J. The petitioner applies for special leave to appeal under Art. 136 of the Constitution, against the judgment of the High Court of Rajasthan dated December 16, 1963 in Civil First Appeal No. 54 of 1956 on. two grounds :\n\n(1) that the judgment of the High Court involves a D claim or question respecting property of not less than Rs. 20,000 in value, and the High Court erred in refusing a certificate under Art. 133(1) (b) of the Constitution; and\n\n(2) that the case is otherwise fit for' appeal to the E Supreme Court.\n\nThe material facts bearing on the plea raised are these. The petitioner commenced on July 2, 1951 in the Court of the Subordinate Judge, First Class, Ajmer an action against the respondents claiming a decree for Rs.\n\nI 0,665 and for rendition of F accounts in respect of the balance of sale proceeds of 104 bales of cotton purchased by him through the agency of the respondents.\n\nThe petitioner claimed that I 04 bales of cotton purchased by him were sold by the respondents as his agents on May 14, 1948 for Rs. 27,267I13 / 6 and without settling the account the respondents delivered towards that amount a demand draft for Rs. 11,000 G which was encashed and four cheques of the aggregate value of Rs. 13,000 which because of Jack of arrangement with the respondents' bankers were not encashed, and the petitioner on that account was entitled to receive from the respondents Rs. 10, 665 being the amount due on the foot of dishonoured cheques and inierest thereon at the rate of 6% per annum between July 2, H 1947 to July l, 1951, Jess Rs. 4,000 subsequently received by him.\n\nThe petitioner also claimed a decree for the balance of the price.\n\nA after giving credit for commission, dalall and godown c4arges incurred by the respondents as his agents and as he was not in a \"position to know\" the amounts due to or disbursed by the respondents, he claimed a decree for rendition of account. The sulJ.; ject-matter of the suit was, therefore, a claim for Rs. 10,665 due to the petitioner on a cause of action arising on cheques dishonour- • ed, and a claim for the balance of the price due as may be ascertained on taking accounts.\n\nThe trial Court passed a decree directing that account be taken for ascertaining the amount due in respect of the entire tran C saction of 104 bales and for taking accounts appointed a Commissioner. The High Court of Rajasthan reversed the decree passed by the Trial Court and dismissed the suit, holding that the transactions in respect of which the claim was made by the petitioner were those of an unregistered firm constituted by the petitioner and another person named Duli Chand and the suit was barred because D thc: firm was not registered. An application filed by the petitioner for certificate under Art. 133 of the Constitution was rejected by the High Court.\n\nThe judgment of the High Court proceeds entirely upon appreciation of evidence and on the findings recorded the petitioner's E suit must stand dismissed.\n\nBut counsel for the petitioner urged that the judgment of the High Court directly involves a claim or question respecting property of value not less than Rs. 20,000 and he was entitled as a matter of right to a certificate from the High Court under Art. 133(1) (b) of the Constitution. This argument is sought to be presented in two ways.\n\nIt is urged in the first F instance that the il!dgment. of the High Court involves a question relating to the right of the petitioner respecting 104 bales of cotton belonging to him and sold by the respondents for an amount exceeding Rs. 27,000. Secondly, it is urged that pursuant to the order of the Trial Court a Commissioner was appointed and the Commissioner reported that Rs. 12,089/14/6 with interest at the G rate of 6% per annum from May 14, 1948 were due to the petitioner and as the amount due to the petitioner on that footing was not less than Rs. 20,000 at the date of the decree of the High Court, the judgment of the High Court involved a claim respecting property of that amount or value.\n\nIn our view the contention raised by the petitioner under either head has no substance.\n\nH It is conceded, and in our judgment .counsel is right in so con\" ceding, that the petitioner could not seek a certificate under cl. (a)\n\n- -,,-,\n\nof Art. 133(1). The claim in the court of first instance did not A reach Rs. 20,000 and one of the conditions for a certificate under that clause being absent, the claim could not be maintained. To attract the application of Art. 133(1) (b) it is essential that there must be---omitting from consideration other conditions not material-a judgment involving directly or indirectly some claim or question respecting property of an amount or value not less than • Rs. 20,000. The variation in the language used in els. (a) and\n\n(b) of Art. 13 3 pointedly highlights the conditions which attract the application of the two clauses. Under cl (a) what is decisive is the amount or value of the subject-matter in the court of first instance and \"still in dispute\" in appeal to the Supreme Court : C under cl. (b) it is the amount or value of the property respecting which a claim or question is involved in the judgment sought to be appealed from.\n\nThe expression \"property\" is not defined in the Code, but having regard to the use of the expression \"amount\" it would apparently include money.\n\nBut the property respecting which the claim or question arises must be property in addition D to or other than the subject-matter of the dispute. H in a proposed appeal there is no claim or question raised respecting property other than the subject-matter, cl. (a) will apply : if there is involved in the appeal a claim or question respecting property of an amount or value not less than Rs. 20,000 in addition to or other than the subject-matter of the dispute cl. (b) will apply.\n\nIn the present case the subject-matter in dispute was a claim for money.\n\nA part of that claim was definite and the rest was to be ascertained on taking accounts. The judgment did not involve any claim or question relating to property in addition to or other than the subject-matter in dispute of the value of 'I Rs. 20,000. It was admitted by the petitioner in his plaint that ihe bales of cotton were sold by the respondents as his agents. The right of the respondents to sell the bales was not in dispute. What was challenged was the right of the respondents to retain the price received by them. It cannot be said that a judgment dealing with a claim to money alleged to be due from an agent for price of pro- G perty belonging to the principal sold by the agent either directly or indirectly involves a claim or question respecting property which is sold.\n\nNor does the alternative ground assist the petitioner. It is true that by his petition the petitioner claims restoration of the H decree of the Trial Court, and by adding interest at the rate of 6% per annum to the petitioner's claim as awarded under the report\n\nA of the Commissioner, the claim of the petitioner on appeal exceeds Rs. 20,000. But this is still the subject-matter in dispute : the judgment does not involve any claim or question respecting property in addition to or other than the subject-matter of the suit.\n\nB The petition therefore fails and is dismissed with costs.\n\nPetition dismissed.", "total_entities": 32, "entities": [{"text": "CHHITARMAL", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "CHHITARMAL", "offset_not_found": false}}, {"text": "S, SHAH PANNALAL CHANDULAL", "label": "RESPONDENT", "start_char": 17, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "M/S, SHAH PANNALAL CHANDULAL", "offset_not_found": false}}, {"text": "January 14, 1965", "label": "DATE", "start_char": 45, "end_char": 61, "source": "ner", "metadata": {"in_sentence": "CHHITARMAL v.\n\nM/S, SHAH PANNALAL CHANDULAL\n\nJanuary 14, 1965\n\n[K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH,\n\nJ. R. MUD!!OLKAR AND s. M. Srroo JJ.J\n\nConstitution of India, Art."}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 64, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, J.", "label": "JUDGE", "start_char": 79, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 148, "end_char": 169, "source": "regex", "metadata": {}}, {"text": "Art. 133(l)(a) and 133(1)(b)", "label": "PROVISION", "start_char": 171, "end_char": 199, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 252, "end_char": 265, "source": "ner", "metadata": {"in_sentence": "133(l)(a) and 133(1)(b)-Requirements for grant of certificates to appeal to Supreme Court,\n\nThe petitioner filed a suit in the court of the Sub-Judge claiming a decree for Rs."}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 764, "end_char": 772, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 856, "end_char": 864, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 133(1)(b)", "label": "PROVISION", "start_char": 1126, "end_char": 1140, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 133(l)(a)", "label": "PROVISION", "start_char": 2242, "end_char": 2256, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 133", "label": "PROVISION", "start_char": 2776, "end_char": 2787, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Mukat Behari Lal Bhargava", "label": "LAWYER", "start_char": 3114, "end_char": 3139, "source": "ner", "metadata": {"in_sentence": "Mukat Behari Lal Bhargava, Zalim Singh, Meeratwal and Nau- \" it Lal, for the petitioner\n\nM. C. Setalvad, and I. N. Shroff, for the respondent."}}, {"text": "Zalim Singh", "label": "LAWYER", "start_char": 3141, "end_char": 3152, "source": "ner", "metadata": {"in_sentence": "Mukat Behari Lal Bhargava, Zalim Singh, Meeratwal and Nau- \" it Lal, for the petitioner\n\nM. C. Setalvad, and I. N. Shroff, for the respondent."}}, {"text": "Meeratwal and Nau- \" it Lal", "label": "LAWYER", "start_char": 3154, "end_char": 3181, "source": "ner", "metadata": {"in_sentence": "Mukat Behari Lal Bhargava, Zalim Singh, Meeratwal and Nau- \" it Lal, for the petitioner\n\nM. C. Setalvad, and I. N. Shroff, for the respondent."}}, {"text": "M. C. Setalvad", "label": "LAWYER", "start_char": 3203, "end_char": 3217, "source": "ner", "metadata": {"in_sentence": "Mukat Behari Lal Bhargava, Zalim Singh, Meeratwal and Nau- \" it Lal, for the petitioner\n\nM. C. Setalvad, and I. N. Shroff, for the respondent."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 3223, "end_char": 3235, "source": "ner", "metadata": {"in_sentence": "Mukat Behari Lal Bhargava, Zalim Singh, Meeratwal and Nau- \" it Lal, for the petitioner\n\nM. C. Setalvad, and I. N. Shroff, for the respondent."}}, {"text": "Shah", "label": "JUDGE", "start_char": 3302, "end_char": 3306, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. The petitioner applies for special leave to appeal under Art.", "canonical_name": "SHAH"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 3368, "end_char": 3376, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "High Court of Rajasthan", "label": "COURT", "start_char": 3426, "end_char": 3449, "source": "ner", "metadata": {"in_sentence": "136 of the Constitution, against the judgment of the High Court of Rajasthan dated December 16, 1963 in Civil First Appeal No."}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 3716, "end_char": 3727, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Subordinate Judge, First Class, Ajmer", "label": "COURT", "start_char": 3948, "end_char": 3985, "source": "ner", "metadata": {"in_sentence": "The petitioner commenced on July 2, 1951 in the Court of the Subordinate Judge, First Class, Ajmer an action against the respondents claiming a decree for Rs."}}, {"text": "May 14, 1948", "label": "DATE", "start_char": 4322, "end_char": 4334, "source": "ner", "metadata": {"in_sentence": "The petitioner claimed that I 04 bales of cotton purchased by him were sold by the respondents as his agents on May 14, 1948 for Rs."}}, {"text": "July 2, H 1947", "label": "DATE", "start_char": 4832, "end_char": 4846, "source": "ner", "metadata": {"in_sentence": "10, 665 being the amount due on the foot of dishonoured cheques and inierest thereon at the rate of 6% per annum between July 2, H 1947 to July l, 1951, Jess Rs."}}, {"text": "July l, 1951", "label": "DATE", "start_char": 4850, "end_char": 4862, "source": "ner", "metadata": {"in_sentence": "10, 665 being the amount due on the foot of dishonoured cheques and inierest thereon at the rate of 6% per annum between July 2, H 1947 to July l, 1951, Jess Rs."}}, {"text": "Duli Chand", "label": "OTHER_PERSON", "start_char": 5939, "end_char": 5949, "source": "ner", "metadata": {"in_sentence": "The High Court of Rajasthan reversed the decree passed by the Trial Court and dismissed the suit, holding that the transactions in respect of which the claim was made by the petitioner were those of an unregistered firm constituted by the petitioner and another person named Duli Chand and the suit was barred because D thc: firm was not registered."}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 6075, "end_char": 6083, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 6541, "end_char": 6552, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 7579, "end_char": 7590, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 7801, "end_char": 7812, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 13", "label": "PROVISION", "start_char": 8108, "end_char": 8115, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]}
{"document_id": "1965_2_756_770_EN", "year": 1965, "text": "756 soum ASIA INDUSTRIES PRIVATE LTD. v.\n\nS. B. SARUP SINGH AND OTHERS\n\nJanuary 18, 1965\n\n(K, SUBBA RAO, RAGHUBAR DAYAL, R. S. BACHAWAT AND •\n\nV. RAMASWAMI, JJ.]\n\nLetters Patent for the High Court of Lahore, els. 10, 11-Delhl Rent Control Act, 1958 (Act 59 of 1958), ss. 39, 43-Sing/e Judge deci. sions-Appeal under Letters Patent-Whether taken away by legisla ture-\"Fina/\" meaning of- Appeal under a statute If includes Letters PaJent Appeal.\n\nThe respondents filed an application before the Controller under s. 14 of the Delhi Rent Control Act for the eviction of the appellant. Tho Controller allowed the petition and an appeal by the appellant was dismissed by the Rent Control Tribunal, against which a second appeal was filed in the High Court under s. 39 of the Act. This second appeal was dismissed by the Single Judge and when a further appeal under cl. 1 J of the Letters Patent came up for disposal before a Di\\ision Bench, it was dismissed as not maintainable. In appeal HELD : (i) An appeal to the High Court will be regulated by tho practice and procedure obtaining in the High Court.\n\nUnder the rules made by the High Court in exercise of the powers conferred on :jt under s. 108 of the Government of India Act, an appeal under s. 39 of the Delhi Rent Control Act will be heard by a Single Judge. Any judgment made by the Single Judge in the said appeal will, under cl. 10 of the Letters Patent, be subject to an appeal to that Court. If the order mado by a Single Judge is a judgment and if the appropriate Legislature has, expressly or by necessary implication not taken away the right of appeal, the conclusion is inevitable that an appeal shall lie from the judg ment of a Single Judge under cl. 10 of the Letters Patent to the High Court. (765 D-E] National Sewing Thread Co. Ltd. v. lames Chadwick & Bros. Ltd. (1953] S.C.R. 1028, National Telephone Co. Ltd. v. Postniiister-General,\n\n(1913) A.C. 546, R.M.A.R.A. Adaikappa Chettiar v. Ra.\n\nChandra.<e khara Thevar, (1947) I.A. 264, Secretary of State for India v. Che/likpni Rama Rao, (1916) I.L.R. 39 Mad. 617, Maung Ba Thaw v. Ma Pin, (1934) L.R. 61 I.A. 158 and Hem Singh v. Basant Das, A.LR. 1936 P.C. 93, relied on.\n\n(ii) The expression \"final\" may have a restrictive meaning in other contexts, but in s. 43 of the Act such a restrictive meaning cannot be given and it indicates that no furl.her appeal is contemplated 3.gainst the order passed on appeal against the order of the Tribunal. (766 G-H; 768 Bl Maung Ba Thaw v. Ma Pin, (1934) L.R. 61 I.A. 158, Kydd v.\n\nLiverpool Watch Committee, (1908) AC. 327 and Secretary of State\n\nv. Hindustan Co-operative Insurance Society Ltd., A.LR. 1931 P.C. 149. referred to.\n\n(iii) An appeal under s. 39(1) of the Act and an appeal under\n\ncl. 10 of the Letters Patent do not form part of a single appeal. Tbey are in law and in fact different appeane given by the statute and the other by the Letters Patent.\n\nThe expression \"apoeal\" in s. 39 . of the Act does not take in a Letters Patent Appeal under cl. to of the Letters\n\nPatent. (769 F-Hl\n\nr .\n\nASIA INDUSTRIES v. SAllUP (Subba Rao, J.) 757\n\nA Union of India v. Mahindra Supply Company, [196.2] 3 S.C.R. 497 and Ladli Prasad Jaiswal v. Kamal Distillery Co. Ltd. (1964] 1 S.C.R. 270, relied on.\n\nRadha Mohan Pathak v. Upendra Patowary, A.I.R. 1962 Assam 71 and Hanskumar Kishanchand v. Union of India. (1959] S.C.R. 1177, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 726 of 1964.\n\nAppeal from the judgment and order dated December 11, 1963 of the Punjab High Court (Circuit Bench at Delhi) in LP.A. No. 85-D of 1963.\n\nA. V. Viswanatha Sastri, Veda V, vasa, P. N. Chaddha, S. K.\n\nC Mehta and K. L. Mehta, for the appeilant.\n\nGopal Singh, for respondents Nos. 1 and 2.\n\nGurcharan Singh Bakshi and Gopal Singh, for respondents Nos. 3 to 5.\n\nD The Judgment of the Coutt was delivered by\n\nSubba Rao, J. . This appeal by certificate raises the question whether an appeal lies under cl. 10 of the Letters Patent for the High Court of Lahore, to a Divi>ion Bench of the Punjab High Court against a judgment passed by a single Judge of the said E High Court in a second appeal under s. 39 of the Delhi Rent Control Act, 1958 (Act No. 59 of 1958), hereinafter called the Act.\n\nThe facts relevant to the question raised may be briefly stated.\n\nThe respondents are the owners of plot No. 5, Connaught Circus, New Delhi.\n\nMessrs. Allen Berry & Co. Private Ltd. took a F lease of the same under a lea5e deed dated Ma!\"ch 1, 1956.\n\nMessrs. Allen Berry & Co. assigned their interest under the said lease deed to South Asia Industries (Private) Ltd., the appellant herein.\n\nThereafter, the respondents filed an application before the Controller, Delhi. under s. 14 of the Act for the eviction of the appellant from the said premises on the ground that Messrs.\n\nG Allen Berry & Co. unauthorizedly assigned the said premises in favour of the appellant.\n\nThe Controller, by his order dated October 10, 1962, allowed the petition. On January 23, 1963, the appeal filed by the appellant against the said order was dismissed by the Rent Control Tribunal, Delhi.\n\nAgainst the said order of the Tribunal the appellant filed an appeal in the High . ff Court of Punjab under s. 3 9 of the Act.\n\nThe said second appeal was dismissed on May 10, 1963, by Harbans Singh, J.\n\nThe appellant filed an appeal against the judgment of the learned\n\nsingle Judge to a Division Bench of the said High Court under A\n\ncl. 10 of the Letters Patent. That appeal came up for disposal before a Division Bench of the High Court, which dismissed the same on the ground that it was not maintainable.\n\nHence the present appeal.\n\nMr. A. Viswanatha Sastri, learned counsel for the appellant B raised before us the following points : ( 1) Section 39 of the Act confers a right of appeal from an order of the Rent Control Tribunal to the High Court and, therefore, when once that appeal reaches the High Court, it has to exercise the jurisdiction in the same manner as it exercises other appellate jurisdiction, that is to say the judgment of a single Judge in that appeal becomes C subject to an appeal to the High Court under cl. 10 of the Letters Patent. (2) Section 43 of the Act is only a bar to initiate colla teral proceedings for the purpose of questioning the order of the Tribunal and it does not make the judgment of a single Judge in an appeal t1nder s. 39 of the Act final; and, that apart, a letters patent appeal is not a separate appeal to the High Court but is D only, in effect, the continuation of the same appeal in the High Court.\n\nThe arguments of M/s. Gopal Singh and Gurcharan Singh Bakshi, learned counsel for the respondents, may be summarized thus : The Act confers a special jurisdiction on the High Court to entertain an appeal; and the judgment in such an appeal does not attract cl. 10 of the Letters Patent.\n\nThat apart, the first part of cl. 10 of the Letters Patent on which the appellant relies only provides for an appeal against the judgment of a single Judge made in the exercise of the High Court's original jurisdiction; and even if is wide enough to comprehend a judgment made F in appellate jurisdiction, it should be an appeal against the order of a Court. In the instant case the Tribunal functioning under the Act is not a Court and, therefore, the judgment passed by a single Judge of the High Court against the judgment of such a Tribunal is not subject to Letters Patent appeal under the said G clause. In any view, s. 43 of the Act makes the judgment of a single Judge made in an appeal final and, therefore, to that extent, cl. 10 of the Letters Patent has been modified by the appropriate Legislature.\n\nLet us at the outset consider the relevant provisions uninfluenced by judicial decisions.\n\nAt this stage it will be convenient H to read the material provisions of the Letters Patent governing the Punjab High Court.\n\nClause 11. And we do further ordain that the High Court of Judicature at Lahore shall be a Court of Appeal from the Civil Courts of the Provinces of the Punjab and Delhi and from all other Courts subject to its superintendence, and shall exercise appellate jurisdiction in such cases as were, immediately before the date of the publication of these presents subject to appeal to the Chief Court of the Punjab by virtue of any law then in force, or as may after that date be declared subject to appeal to the High Court of Judicature at Lahore by any law made by competent legislative authority for India.\n\nClause 10, before its amendment by Letters Patent of 1928, read as follows :\n\n\"And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore, from the judgment (not being an order made in the exercise of revisional jurisdiction and. not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section I 07 of the Government of India Act, 1915, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one 1 udge of any Division Court, pursuant to section 13 of the said recited Act, and that an appeal shall also lie to the said High Court from the judgment (not being a sentence or order as aforesaid) of two or more Judges of the said High Court, or of such Division Court, whenever such Judges are equally divided in opinion, and do not amount in number to a majority of the whole of the Judges of the said High Court, at the time being; but that the right of appeal from other judgments of the Judges of the said High Court. or of such Division Court, shall be to Us, Our heirs or successors in Our or Their Privy Council, as hereinafter provided.\" After the amendment in 1928, cl. 10 reads:\n\n\"And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court, subject to the superintendence of the said High Court, and not being an order made in the exercise of USup./65-2\n\nrevisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence, under the provisions of s. 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section\n\n108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, made on or after the first day of . February, 1929, in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the supe; intendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the nght of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council, as hereinafter provided.\"\n\nThe first part of cl. 11 of the Letters Patent says that the High E\n\nCourt shall be a Court of appeal from civil courts of the Provinces of Punjab and Delhi and from all other Courts subject to the superintendence of the High Court; the second part thereof empowers the High Court to exercise appellate jurisdiction in such cases as were immediately before the date of the publication of the Letters Patent subject to appeal to the Chief Court of F Punjab by virtue of any law then in force, or as may after that date be declared subject to appeal to the High Court of Judicature at Lahore by any law made by competent legislative authority for India. The second part does not make a distinction between appellate jurisdiction .over Courts and that over Tribunals which are not Courts. If a law made by a competent legislative autho- G rity declares a case to be subject to appeal to the High Court of Judicature, the said High Court acquires jurisdiction to entertain\n\nthe same and dispose of it in accordlmce with law. If the High Court entertains an appeal in terms of cl. 11 of the Lettem Patent, cl. 10 thereof is attracted to such an appea 1.\n\nUnd•r s. 108 of the Government of India Act, 1915, the High Court may by its own rules provide, as it thinks fit, for the exercise by one or more Judges or by a Division Court constituted by two\n\nA or more Judges of the High Court, of original and appellate jurisdictions vested in the Court; and under cl. ( 2) thereof the Chief Justice of each High Court shall determine what Judge in each case is to sit alone, and what Judges of the Court, whether with or without the Chief Justice, are to constitute the several Division Courts. If in exercise of the jurisdiction under s. 108 B of the Government of India Act, 1915, an appeal filed in a High Court is posted before a single Judge of that Court and a judgment is delivered therein by that Judge, one has to look to cl. 10 of the Letters Patent whether a further appeal lies to the High Court against the said judgment.\n\nBefore the amendment of\n\ncl. 10 of the Letters Patent in 1928, from the judgment of a C single Judge of the said High Court or one Judge of any Division Court an appeal lay to the said High Court; but there were certain exceptions to that rule. l'f the judgment was made by a single Judge in exercise of the powers of superintendence under s. 107 of the Government of India Act, 1915, or in exercise of criminal .D jurisdiction, no further appeal lay from his judgment There were no further exceptions such as that the said judgment should have been in an appeal against an order of a Court. A plain reading of the said clause indicates that except in the 3 cases excluded an appeal lay against the judgment of a single Judge of the High Court to the High Court in exercise of any other J: jurisdiction. As the clause then stood, it would appear that an appeal lay against the judgment of a single Judge of the High Court made in exercise of second appellate jurisdiction without any limitation thereon.\n\nThe effect of the amendment made in 1928, so far as is relevant to the present enquiry, is the exclusion of the right of appeal from a judgment passed by a single Judge F sitting in second appeal unless the Judge who passed the judgment grants a certificate that the case is a fit one for appeal.\n\nThe amended clause, presumably for the purpose of artistic drafting, practically leaves the first part as it was and in the second part introduces a limitation in the matter of a further appeal against the judgment of such a single Judge. Looking at G the first part of the amended clause excluding the exceptions, it is obvious that its wording is general.\n\nThereunder an appeal lies from the judgment of one Judge of the said High Court, whether the said judgment is made in exercise of appellate, revisional or criminal jurisdiction or where the judgment is made in II a first appeal or second appeal against the order of a Court or a\n\nTribunal.\n\nFour exceptions are carved out from the general rule.\n\nApart, from the three exceptions to the. general .rule already noticed in the context of the unamended clause, ilie . ameiided\n\nclause introduces another exception noticed supra.\n\nThe result is A that under the first part of cl. 10 of the Letters Patent an appeal lies from the judgment of a single Judge of the High Court passed by him in exercise of his original jurisdiction or in exercise of first appellate jurisdiction, whether the appeal is against the order of a Court or not; and in the case of second appellate jurisdiction, if the appeal is against the order of a Tribunal, which is not a B Court.\n\nBut in the case of a judgment made in a second appeal against the decree or order of a Court subordinate to the High Court, no further appeal lies unless the said Judge declares that the case is a fit one for appeal. It is not permissible, by construction, to restrict the scope of the generality of the provisions C of cl. 10 of the Letters Patent. The argument that a combined reading of els. 10 and 11 of the Letters Patent leads to the conclusion that even the first part of cl. 10 deals only with appeals from Courts subordinate to the High Court has no force.\n\nAs we have pointed out earlier, cl. 11 contemplates conferment of appellate jurisdiction on the High Court by an appropriate Legis- D lature against orders of a Tribunal.\n\nFar from detracting from the generality of the words \"judgment by one Judge of the said High Court\", cl. 11 indicates that the said judgment takes in one passed by a single Judge in an appeal against the order of a Tribunal. It is said, with some force, that if this construction be accepted, there will be an anomaly, namely, that in a case E where a single Judge of the High Court passed a judgment in exercise of his appellate jurisdiction in respect of a decree made by a Court subordinate to the High Court, a further appeal to that Court will not lie unless the said Judge declares that the case is a fit one for appeal, whereas, if in exercise of his second appellate jurisdiction, he passed a judgment in an appeal against r\n\nthe order of a Tribunal, no such declaration is necessary for taking the matter on further appeal to the said High Court. If the express intention of the Legislature is clear, it is not permissible to speculate on the possible reasons that actuated the Legislature to make a distinction between the two classes of cases. lt may be, for ought we know, the Legislature thought fit to G impose a limitation in a case where 3 Courts gave a decision, whereas it did. not think fit to impose a limitation in a case where only one Court gave a decision.\n\nThis Court in National Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd.(') construed cl. 15 of the Letters Patent H for the Bombay High Court, corresponding to cl. 10 of the Letters\n\n(I} [1953) S.C.R. 1028, 1044.\n\nA Patent for the Lahore High Court.\n\nThere the question was whether a Letters Patent appeal lay from a judgment of a single Judge of the Bombay High Court to a Division Bench of lhat High Court against the decision of the Registrar of Trade Marks under the Trade Marks Act, 1940.\n\nSection 76( 1) of the said Act provided that \"an appeal shall lie from any decision of the Regis- B trar under this Act or the rules made thereunder to the High Court having jurisdiction\"; and the Act did not make any ptovi- . sion in regard to the procedure to be followed by the High Court in the appeal, or as to whether the order passed in the appeal was appea!able.\n\nTwo points were raised before this C Court, namely, ( 1) the provisions of the first part of cl. 15 of the Letters Patent for the Bombay High Court . could not be attracted to an appeal preferred to the High Court under s. 76 of the Trade Marks Act, 1940; and (2) the said clause would have no application in a case where the judgment could not be said to have been delivered pursuant to s. 108 of the Government D of India Act, 1915. On the first question, this Court held that the High Court being seized as such of the appellate jurisdiction conferred by s. 76 of the Trade Marks Act, 1940, it had to exercise that jurisdiction in the same manner as it exercised its other appellate jurisdiction and when such jurisdiction was exercised by a single Judge, his judgment became subject to appeal under E cl. 15 of the Letters Patent of the Bombay High Court there being nothing to the contrary in the Trade Marks Act. On the second question, this Court held thus :\n\n\"We are therefore of the opinion that section 108 of the Government of India Act, 1915, conferred power on the High Court which that Court could exercise from time to time with reference to its jurisdiction whether existing at the coming into force of the Government of India Act, 1915, or whether conferred on it by any subsequent legislation.\"\n\nThe difference between that case and the present one is that the G single Judge in that case passed a judgment in a first appeal against the order of the Registrar, while in the present case the single Judge passed an order in a second appeal. But that will\n\nnot make any difference in the construction of the first part of\n\ncl. 10 of the Letters Patent for the High <;::ourt of Lahore, corresponding to cl. 15 of the Letters Patent for the High Court of H Bombay.\n\nAnother difference is that while under the last part of\n\ncl. 11 of the Letters Pate.nt for the Lahore High Court there are the words \"or as may after that date be declared subject to\n\n764 SUPllBMB COUllT llBPOR.TS\n\n[1965] 2 S.C.R.\n\nappeal to the High Court of Judicature at Lahore by any law A made. by competent legislative authority for India\", the said words are absent in the corresponding cl. 16 of the Letters Paten~ for the Bombay High Court.\n\nNotwithstanding the said omission this Court in the said case held that the appeal under the Trade Marks Act was an addition of a new subject-matter of appeal to the appellate jurisdiction already exercised by the High Court B and that the rules made under s. 108 of the Government of India Act, 1915, applied to the same. It is contended that in that case it was not argued that the Registrar was not a Court, and therefore the Supreme Court assumed that the Registrar was a Court and on that assumption held that the first part of cl. 15 of the Letters Patent of the Bombay High Court was attracted. We C do not see any justification for this argument One of the contentions raised before the Court was that the Trade Marks Act created a new Tribunal and conferred a new appellate jurisdiction on the High Court.\n\nThis Court rejected that contention with the following words : D\n\n\"The statute creates the Registrar a tnbunal for safeguarding these rights and for giving effect to the rights created by the Act and the High Court as such without more has been given appellate jurisdiction over the decisions of this tribunal.\" E The entire judgment proceeded on the basis that the Registrar was only a tribunal. It is not possible to visualize that both the Advocates as well as the Judges of this Court missed the point that the tribunal was not a Court and, therefore, applied the first part of cl. 15 of the Letters Patent of the Bombay High Court.\n\nIndeed, the question of applicability of s. 108 of the Government F of India Act, 1915, to the appeal in that case would not have arisen if it was an appeal against the order of a civil Court.\n\nWe, therefore, cannot countenance the argument that this Court assumed that the Registrar was a Court in applying cl. 15 of the Letters Patent of the Bombay High Court in the appeal in question in that case.\n\nThis decision therefore covers the question G now raised before us.\n\nThe relevant rule applicable to the present case has been statied by this Court in the aforesaid decision thus;\n\n\"Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and proced11.-e of that Court and in accordance with the provisions of the charter under which that\n\nCourt is constituted and which confers on it power in respect to the method and manner of exercisfug that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then the appeal must be regulated by the practice and procedure of that Court.\"\n\nThill principle was laid down by the Judicial Committee in a number of decisions : see National Telephone Co., Ltd. v.\n\nPostmaster-General('); R.M.A.R.A. Adaikappa Chettiar v. Ra.\n\nChandrasekhara Thevar( 2 ); Secretary of State for India v. Chellikani Rama Rao( 8 ); Maung Ba Thaw v. Ma Pin('); and Hem c Singh v. Basant Das(\").\n\nThe following legal po' ition emerges from the said discussion : A statute may give a right of appeal from an order of a tribunal or a Court to the High Court without any limitation thereon.\n\nThe appeal to the High Court will be regulated by the D practice and procedure obtaining in the High Court.\n\nUnder the rules made by the High Court in exercise of the powers conferred on it under s. 108 of the Government of India Act, 1915, an appeal under s. 39 of the Act will be heard by a single Judge.\n\nAny judgment made by the single Judge in the said appeal will, under cl. 10 of the Leners Patent, be subject to an appeal to E that Court.\n\nIf the order made by a single Judge is a judgment and if the appropriate Legislature has, expressly or by neccessary implication, not taken away the right of appeal, the conclusion is\n\ninevitable that an appeal shall lie from the judgment of a single Judge under cl. 10 of the Letters Patent to the High Court. It follows that, if the Act had not taken away the Letters Patent F appeal, an appeal shall certainly lie from the judgment of the single Judge to the High Court.\n\nIn the view we have expressed it is not necessary to consider the question whether the tribunal is a court or not, for, as we have pointed out earlier, it is not germane to the question of G maintainability of the Letters Patent appeal.\n\nThe next question is whether the right of appeal conferred by\n\ncl. 10 of the Letters Patent, Lahore, has been taken away by a law made by the appropriate Legislature.\n\nIt is conceded that the appropraite Legislature can take away that right : see cl. 37 of the Letters Patent, Lahore. It is argued by the learned\n\n(I) [1913] A.C. 5'16.\n\n(2) [1947! 74 I.A. 264.\n\n(3) (1916) l.L.R. 39 Mad. 617.\n\n(4) (1934) L.R. 61I.A.158.\n\n(5) A.l.R. 1936 P.C. 93.\n\n766 SUPP.BMB COUl.T P.BPORTS\n\n\ncounsel for the respondents that s. 43 of the Act has that ellect.\n\nThe relevant provisions of the Act may now be noticell.\n\nSection 39. (1) Subject to the provisions of subsection ( 2), an appeal shall lie to the High Court from an order made by the Tribunal within sixty days from the date of such order.\n\n( 2) No appeal shall lie under sub-section ( 1 ) , unless the appeal involves some substantial question of law.\n\nSection. 43. Save as otherwise expressly provided in\n\nthis Act, every order made by the Controller or an C order passed on appeal under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding.\n\nA combined rending of the said two sections may be stated thus Subject to the right of appeal to the High Court on a substantial D question of law, the order passed by the High Court on appeal is final and it shall not be called in question in any original suit.\n\napplication or execution proceeding.\n\nMr. Viswanatha Sastri contends that the last sentence in s. 43 of the Act gives colour to the expression \"final\".\n\nAccording to him, finality is only wiW. reference to collateral proceedings, such as, suits, applica- E tions and execution proceedings.\n\nThe expression \"final\" pr/ma facie connotes that an order passed on appeal under the Act is conclusive and no further appeal lies against it.\n\nThe last sentence in s. 43 of the Act, in our view, does not restrict the scope of the said expression; indeed, the said sent-ncc imposes a further bar. The expron F \"final\" in the first part of s. 43 of the Act puts an end. to a further appeal and the words \"shall not be called in question m any original suit, application or execution proceeding\" bar collateral proceedings. The section imposes a total bar.\n\nThe comictness of the judgment in appeal cannot be questioned by way of appeal or by way of collateral proceedings.\n\nIt is true that the G expression \"final\" may have a restrictive meaning in other contexts, but in s. 43 of the Act such a restrictive meaning cannot be given, for Ch. VI of the Act provides for a hierarchy of tribunals for deciding disputes arising thereunder. The Act is a selfcontained one and the intention of the Legislature was to provide H an exhaustive code for disposing of the appeals arising under\n\nthe Act. The opening words of s. 43 of the Act \"save as otherwise expressly provided in this Act\" emphasize the fact that the\n\nA finality of the order cannot be questioned by resorting to something outside the Act..\n\nSome of the decisions cited at the Bar defining the expression \"final\" may usefully be referred to.\n\nIn Maung Ba Thaw v. Ma Pin(1) the Judicial Committee had to consider whether an appeal lay to the Privy Council against the order of the High Court under s. 75(2) of the Provincial Insol- B vency Act, 1920. The said Act provided by s. 4(2) that subject to the provisions of the Act and notwithstanding anything contained in any other law for the time being in force, the decision of the District Court under the Act was final; but under s. 75 (2).\n\nIK>wever, there was a right of appeal to the High Court from the\n\nclecision of the District Court. The Judicial Committee held that c in a case where the Act gave a right to appeal to the High Court. an appeal from the decision of the High Court lay to the Prviy Council under, and subject to, the Code of Civil Procedure.\n\nIt reiterated the principle that where a Court is appealed to as one of the ordinary Courts of the country, the ordinary rules of the D Code of Civil Procedure applied. It will be noticed at once that the order of the District Court was final subject to the provisions o{ the said Act and under the said Act a right of appeal was given to the High Court. The' order of the High Court in the appeal was not made final.\n\nTherefore, the Judicial Committee held that an appeal lay to the Privy Council against the order of E the High Court. This decision, therefore, does not really help the appellant.\n\nIn Kydd v. Liverpool Watch Committee(') the facts were as follows : Under s. 11 of the Police Act, 1890 (53 & 54 Viet. c. 45), there was an appeal to quarter sessions as to the amount of a constable's pension.\n\nThe duty of the quarter\n\nsession was stated thus : .\n\n\"that Court, after inquiry into the case, may make such order in the matter as appears to the Court just, which order shall be final.\"\n\nLord Lorebum, L.C. construed the said section thus :\n\n\"Where it says, speaking of such an order, that it is to be final, I think it means there is to be an end of the business at quarter sessions ........ \".\n\nThe Judicial Committee again in Secretary of State v. Hindustan Co-operative Insurance Society Ltd.(') construed the expression \"final\" and held that the expression was intended to exclude any H further appeal. There, under s. 71 of the Calcutta Improvement\n\n(1) (1934) L.R. 61 I.A. IS8.\n\n(2) [1908] A.C. 327, 331-332.\n\n(3) A.I.R. [1931] P.C. 149.\n\n768 SUPllBMB COUllT llBPOllTS [196SJ 2 S.C.ll.\n\nAct, 1911, a limited right of appeal to the High Court was given A from an award of the Tribunal and it provided that, subject to that right only, the award should be final.\n\nTheir Lordships held that the provision for finality was intended to exclude any forth~ appeal.\n\nNo further citation is called for.\n\nAs we have stated, the expression \"final\" in s. 43 of the Act indicates that no further appeal is contemplated against the order passed on appeal B against the order of the Tribunal.\n\nTo escape from this construction a larger scope is sought to be given to the expression \"appeal to the High Court\". It is said that the expression \"appeal\" in ss. 43 and 39 of the Act means an appeal to the High Court and not to a single Judge and that c the said appeal is finally disposed of only by the final judgment of the High Court. It is said that whatever may be the internal arrangement in disposing of that appeal, there is only one appeal till it is finally disposed of.\n\nThis argument is plausible, but it has not found favour with this Court. This Court in Union of India v. Mohindra Supply Company(') considered the question D whether s. 39(2) of the Indian Arbitration Act, 1940, has taken away the right of appeal under the Letters Patent Section 39(2) of the said Act reads as follows :\n\n\"No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or .take away any right to appeal to the Supreme Court\" lt was argued, as it is argued before us, that the second appeal under the section referred to an appeal to a superior Court and\n\nnot to appeals \"intra-Court\" and, therefore, s. 39(2) of the Arbitration Act did not operate to prohibit an appeal under the F Letters Patent against the order of a single Judge. This Court held that the expression \"second appeal\" included an appeal under the iLetters Patent.\n\nThis decision ruled that a Letters Patent appeal is not a part of the appeal filed in the High Court against the award of the Arbitrator, but is a fresh appeal against the order of the single Jutlge. This Court in Ladli Prasad Jais- G wal v. Kamal Distillery Co., Ltd. (2 ) held that the expression ''Court immediately below\" in Art. 133(1)(a) of the Constitution took in a single Judge of the High Court There, the judgment of the District Judge was reversed by the single J ndge of the High Court.\n\nAgainst the order of the single Judge of the High Court in appeal from that of the Subordinate Judge a letters H patent appeal was preferred to a Division Bench of the High\n\n(1) [1962J 3 S.C.R. 497. (2} [1964] I S.C.ll. 270.\n\nA Court and the said Division Bench affirmed the judgment of the single Judge. The quesion arose whether the single Judge was a Court immediately below the Division Bench. For the respondent it was contended that the judgment of the High Court against which the appeal was preferred affirmed the decision of the Court B immediately below and that the appeal did not involve any substantial question of Jaw and, therefore, the High Court was not competent to grant a certificate under Art. 133(1) (a) of the Constitution.\n\nFor the appellant it was urged that the appeal against the judgment of the single Judge to a Division Bench under cl. 10 of the Letters Patent was a \"domestic appeal\" within C the High Court and in deciding whether the decree of a Division Bench in an appeal under the Letters Patent from a decision of a single Judge exercising appellate jurisdiction affirmed the decision of the Court immediately below, regard must be had to the decree of the Court subordinate to the High Court, against the decision of which appeal was preferred to the High Court. n This Court came to the conclusion that the expression \"Court\n\nimmediately below\" in Art. 133(l)(a) must mean a Court from\n\nthe decision of which the appeal has been filed in the High Court, whether such a Judge was a single Judge of the High Court or a Court subject to the Superintendence of the High Court.. It will be seen that if a Letters Patent appeal was E only a continuation of the appeal filed from the decree of the District Judge by a domestic arrangement, this Court would have held that the judgment in the Letters Patent appeal was not a judgment of affirmation but one of reversal of the judgment of the District Court. This decision, therefore, recognizes that an appeal disposed of by a single Judge of the High Court and the appeal F from the judgment of the single Judge to a Division Bench thereof are different appeals. Apart from these decisions, on principle we do not see any justification to hold that an appeal under s. 39 (1) of the Act and an appeal under cl. 10 of the Letters Patent form part of a single appeal. They are in law and in fact different appeals-one given by the statute and the other by the Letters G Patent. We cannot, therefore, accede to the argument advanced by the learned counsel for the appellant that the expression \"appeal\" in s. 39 of the Act takes in a Letters Patent appeal under\n\ncl. 10 of the Letters Patent\n\nLearned counsel for the respondents further contended that H s. 39 of the Act conforred a special jurisdiction on the High Court as persona designata and therefore, the decision of the single Judge in appeal is not a \"judgment\" within the meaning of\n\n•Cl. 10 of the Letters Patent. In support of this view reliance was A placed, inter aiia, on Radha Mohan Pathak v. Upcndra Patowary(1) and Hanskumar Kishanclzand v. The Union of lndia( 2 ). \"But, in the view we have expressed on the construction of s. 39, read with s. 43, of the Act, it is not necessary to deal with that question in this appeal.\n\nWe shall not be understood to have expressed our opinion on this question one way or other.\n\nIn the result, the appeal fails and is dismissed with costs.\n\n(I) A.l.R. 1962 Assam 71.\n\n(2) _[1959] S.C.R. llT.\n\nAppeal di&missed", "total_entities": 160, "entities": [{"text": "756 soum ASIA INDUSTRIES PRIVATE LTD", "label": "PETITIONER", "start_char": 0, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "SOUTH ASIA INDUSTRIES PRIVATE LTD", "offset_not_found": false}}, {"text": "S. B. SARUP SINGH AND OTHERS", "label": "RESPONDENT", "start_char": 42, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "S. B. 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V. Viswanatha Sastri", "label": "PETITIONER", "start_char": 3606, "end_char": 3629, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, Veda V, vasa, P. N. Chaddha, S. K.\n\nC Mehta and K. L. Mehta, for the appeilant.", "canonical_name": "A. V. Viswanatha Sastri"}}, {"text": "Veda V", "label": "PETITIONER", "start_char": 3631, "end_char": 3637, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, Veda V, vasa, P. N. Chaddha, S. K.\n\nC Mehta and K. L. Mehta, for the appeilant."}}, {"text": "P. N. Chaddha", "label": "OTHER_PERSON", "start_char": 3645, "end_char": 3658, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, Veda V, vasa, P. N. Chaddha, S. K.\n\nC Mehta and K. L. Mehta, for the appeilant."}}, {"text": "S. K.\n\nC Mehta", "label": "LAWYER", "start_char": 3660, "end_char": 3674, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, Veda V, vasa, P. N. Chaddha, S. K.\n\nC Mehta and K. L. 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Mehta, for the appeilant."}}, {"text": "Gopal Singh", "label": "LAWYER", "start_char": 3712, "end_char": 3723, "source": "ner", "metadata": {"in_sentence": "Gopal Singh, for respondents Nos.", "canonical_name": "Gopal Singh"}}, {"text": "Gurcharan Singh Bakshi", "label": "LAWYER", "start_char": 3756, "end_char": 3778, "source": "ner", "metadata": {"in_sentence": "Gurcharan Singh Bakshi and Gopal Singh, for respondents Nos."}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 3872, "end_char": 3881, "source": "ner", "metadata": {"in_sentence": "D The Judgment of the Coutt was delivered by\n\nSubba Rao, J. .", "canonical_name": "SUBBA RAO"}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 3964, "end_char": 3970, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Lahore", "label": "COURT", "start_char": 4001, "end_char": 4021, "source": "ner", "metadata": {"in_sentence": "10 of the Letters Patent for the High Court of Lahore, to a Divi>ion Bench of the Punjab High Court against a judgment passed by a single Judge of the said E High Court in a second appeal under s. 39 of the Delhi Rent Control Act, 1958 (Act No."}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 4050, "end_char": 4067, "source": "ner", "metadata": {"in_sentence": "10 of the Letters Patent for the High Court of Lahore, to a Divi>ion Bench of the Punjab High Court against a judgment passed by a single Judge of the said E High Court in a second appeal under s. 39 of the Delhi Rent Control Act, 1958 (Act No."}}, {"text": "s. 39", "label": "PROVISION", "start_char": 4162, "end_char": 4167, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 4175, "end_char": 4203, "source": "regex", "metadata": {}}, {"text": "New Delhi", "label": "GPE", "start_char": 4385, "end_char": 4394, "source": "ner", "metadata": {"in_sentence": "5, Connaught Circus, New Delhi."}}, {"text": "Allen Berry & Co. Private Ltd.", "label": "RESPONDENT", "start_char": 4405, "end_char": 4435, "source": "ner", "metadata": {"in_sentence": "Messrs. Allen Berry & Co. Private Ltd. took a F lease of the same under a lea5e deed dated Ma!\"ch 1, 1956.", "canonical_name": "Allen Berry & Co. Private Ltd."}}, {"text": "Allen Berry & Co.", "label": "PETITIONER", "start_char": 4513, "end_char": 4530, "source": "ner", "metadata": {"in_sentence": "Messrs. Allen Berry & Co. assigned their interest under the said lease deed to South Asia Industries (Private) Ltd., the appellant herein.", "canonical_name": "Allen Berry & Co. Private Ltd."}}, {"text": "South Asia Industries (Private) Ltd.", "label": "ORG", "start_char": 4584, "end_char": 4620, "source": "ner", "metadata": {"in_sentence": "Messrs. Allen Berry & Co. assigned their interest under the said lease deed to South Asia Industries (Private) Ltd., the appellant herein."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 4730, "end_char": 4735, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "October 10, 1962", "label": "DATE", "start_char": 4958, "end_char": 4974, "source": "ner", "metadata": {"in_sentence": "The Controller, by his order dated October 10, 1962, allowed the petition."}}, {"text": "January 23, 1963", "label": "DATE", "start_char": 5001, "end_char": 5017, "source": "ner", "metadata": {"in_sentence": "On January 23, 1963, the appeal filed by the appellant against the said order was dismissed by the Rent Control Tribunal, Delhi."}}, {"text": "Rent Control Tribunal, Delhi", "label": "COURT", "start_char": 5097, "end_char": 5125, "source": "ner", "metadata": {"in_sentence": "On January 23, 1963, the appeal filed by the appellant against the said order was dismissed by the Rent Control Tribunal, Delhi."}}, {"text": "High . ff Court of Punjab", "label": "COURT", "start_char": 5204, "end_char": 5229, "source": "ner", "metadata": {"in_sentence": "Against the said order of the Tribunal the appellant filed an appeal in the High ."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 5236, "end_char": 5240, "source": "regex", "metadata": {"statute": null}}, {"text": "May 10, 1963", "label": "DATE", "start_char": 5296, "end_char": 5308, "source": "ner", "metadata": {"in_sentence": "The said second appeal was dismissed on May 10, 1963, by Harbans Singh, J.\n\nThe appellant filed an appeal against the judgment of the learned\n\nsingle Judge to a Division Bench of the said High Court under A\n\ncl."}}, {"text": "Harbans Singh", "label": "JUDGE", "start_char": 5313, "end_char": 5326, "source": "ner", "metadata": {"in_sentence": "The said second appeal was dismissed on May 10, 1963, by Harbans Singh, J.\n\nThe appellant filed an appeal against the judgment of the learned\n\nsingle Judge to a Division Bench of the said High Court under A\n\ncl."}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 5464, "end_char": 5470, "source": "regex", "metadata": {"statute": null}}, {"text": "A. Viswanatha Sastri", "label": "PETITIONER", "start_char": 5671, "end_char": 5691, "source": "ner", "metadata": {"in_sentence": "Mr. A. Viswanatha Sastri, learned counsel for the appellant B raised before us the following points : ( 1) Section 39 of the Act confers a right of appeal from an order of the Rent Control Tribunal to the High Court and, therefore, when once that appeal reaches the High Court, it has to exercise the jurisdiction in the same manner as it exercises other appellate jurisdiction, that is to say the judgment of a single Judge in that appeal becomes C subject to an appeal to the High Court under cl.", "canonical_name": "A. V. Viswanatha Sastri"}}, {"text": "Section 39", "label": "PROVISION", "start_char": 5774, "end_char": 5784, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 6162, "end_char": 6168, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 43", "label": "PROVISION", "start_char": 6196, "end_char": 6206, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 6397, "end_char": 6402, "source": "regex", "metadata": {"statute": null}}, {"text": "Gopal Singh", "label": "LAWYER", "start_char": 6609, "end_char": 6620, "source": "ner", "metadata": {"in_sentence": "The arguments of M/s. Gopal Singh and Gurcharan Singh Bakshi, learned counsel for the respondents, may be summarized thus : The Act confers a special jurisdiction on the High Court to entertain an appeal; and the judgment in such an appeal does not attract cl.", "canonical_name": "Gopal Singh"}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 6844, "end_char": 6850, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 6905, "end_char": 6911, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 43", "label": "PROVISION", "start_char": 7498, "end_char": 7503, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 7608, "end_char": 7614, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 11", "label": "PROVISION", "start_char": 7905, "end_char": 7914, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Judicature at Lahore", "label": "COURT", "start_char": 7950, "end_char": 7984, "source": "ner", "metadata": {"in_sentence": "And we do further ordain that the High Court of Judicature at Lahore shall be a Court of Appeal from the Civil Courts of the Provinces of the Punjab and Delhi and from all other Courts subject to its superintendence, and shall exercise appellate jurisdiction in such cases as were, immediately before the date of the publication of these presents subject to appeal to the Chief Court of the Punjab by virtue of any law then in force, or as may after that date be declared subject to appeal to the High Court of Judicature at Lahore by any law made by competent legislative authority for India."}}, {"text": "India", "label": "GPE", "start_char": 8503, "end_char": 8508, "source": "ner", "metadata": {"in_sentence": "And we do further ordain that the High Court of Judicature at Lahore shall be a Court of Appeal from the Civil Courts of the Provinces of the Punjab and Delhi and from all other Courts subject to its superintendence, and shall exercise appellate jurisdiction in such cases as were, immediately before the date of the publication of these presents subject to appeal to the Chief Court of the Punjab by virtue of any law then in force, or as may after that date be declared subject to appeal to the High Court of Judicature at Lahore by any law made by competent legislative authority for India."}}, {"text": "Clause 10", "label": "PROVISION", "start_char": 8511, "end_char": 8520, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1915", "label": "STATUTE", "start_char": 8916, "end_char": 8945, "source": "regex", "metadata": {}}, {"text": "section 13", "label": "PROVISION", "start_char": 9077, "end_char": 9087, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1915", "statute": "the Government of India Act, 1915"}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 9712, "end_char": 9718, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1915", "statute": "the Government of India Act, 1915"}}, {"text": "s. 107", "label": "PROVISION", "start_char": 10266, "end_char": 10272, "source": "regex", "metadata": {"statute": null}}, {"text": "section\n\n108", "label": "PROVISION", "start_char": 10434, "end_char": 10446, "source": "regex", "metadata": {"statute": null}}, {"text": "section 108", "label": "PROVISION", "start_char": 10678, "end_char": 10689, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 11", "label": "PROVISION", "start_char": 11274, "end_char": 11280, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab", "label": "GPE", "start_char": 11396, "end_char": 11402, "source": "ner", "metadata": {"in_sentence": "11 of the Letters Patent says that the High E\n\nCourt shall be a Court of appeal from civil courts of the Provinces of Punjab and Delhi and from all other Courts subject to the superintendence of the High Court; the second part thereof empowers the High Court to exercise appellate jurisdiction in such cases as were immediately before the date of the publication of the Letters Patent subject to appeal to the Chief Court of F Punjab by virtue of any law then in force, or as may after that date be declared subject to appeal to the High Court of Judicature at Lahore by any law made by competent legislative authority for India."}}, {"text": "cl. 11", "label": "PROVISION", "start_char": 12328, "end_char": 12334, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 12357, "end_char": 12363, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 108", "label": "PROVISION", "start_char": 12412, "end_char": 12418, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1915", "label": "STATUTE", "start_char": 12426, "end_char": 12455, "source": "regex", "metadata": {}}, {"text": "s. 108", "label": "PROVISION", "start_char": 12981, "end_char": 12987, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1915", "statute": "the Government of India Act, 1915"}}, {"text": "Government of India Act, 1915", "label": "STATUTE", "start_char": 12997, "end_char": 13026, "source": "regex", "metadata": {}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 13176, "end_char": 13182, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1915", "statute": "the Government of India Act, 1915"}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 13306, "end_char": 13312, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1915", "statute": "the Government of India Act, 1915"}}, {"text": "s. 107", "label": "PROVISION", "start_char": 13621, "end_char": 13627, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1915", "statute": "the Government of India Act, 1915"}}, {"text": "Government of India Act, 1915", "label": "STATUTE", "start_char": 13635, "end_char": 13664, "source": "regex", "metadata": {}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 15514, "end_char": 15520, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 16219, "end_char": 16225, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 16378, "end_char": 16384, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 11", "label": "PROVISION", "start_char": 16498, "end_char": 16504, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 11", "label": "PROVISION", "start_char": 16739, "end_char": 16745, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 15", "label": "PROVISION", "start_char": 18010, "end_char": 18016, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 18085, "end_char": 18091, "source": "regex", "metadata": {"statute": null}}, {"text": "Lahore High Court", "label": "COURT", "start_char": 18156, "end_char": 18173, "source": "ner", "metadata": {"in_sentence": "A Patent for the Lahore High Court."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 18276, "end_char": 18293, "source": "ner", "metadata": {"in_sentence": "There the question was whether a Letters Patent appeal lay from a judgment of a single Judge of the Bombay High Court to a Division Bench of lhat High Court against the decision of the Registrar of Trade Marks under the Trade Marks Act, 1940."}}, {"text": "Trade Marks Act", "label": "STATUTE", "start_char": 18396, "end_char": 18411, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 76( 1)", "label": "PROVISION", "start_char": 18420, "end_char": 18434, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 15", "label": "PROVISION", "start_char": 18885, "end_char": 18891, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 76", "label": "PROVISION", "start_char": 19012, "end_char": 19017, "source": "regex", "metadata": {"statute": null}}, {"text": "Trade Marks Act, 1940", "label": "STATUTE", "start_char": 19025, "end_char": 19046, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 108", "label": "PROVISION", "start_char": 19180, "end_char": 19186, "source": "regex", "metadata": {"linked_statute_text": "the Trade Marks Act, 1940", "statute": "the Trade Marks Act, 1940"}}, {"text": "Government D of India Act, 1915", "label": "STATUTE", "start_char": 19194, "end_char": 19225, "source": "regex", "metadata": {}}, {"text": "s. 76", "label": "PROVISION", "start_char": 19350, "end_char": 19355, "source": "regex", "metadata": {"linked_statute_text": "the Government D of India Act, 1915", "statute": "the Government D of India Act, 1915"}}, {"text": "Trade Marks Act, 1940", "label": "STATUTE", "start_char": 19363, "end_char": 19384, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "cl. 15", "label": "PROVISION", "start_char": 19597, "end_char": 19603, "source": "regex", "metadata": {"linked_statute_text": "the Trade Marks Act, 1940", "statute": "the Trade Marks Act, 1940"}}, {"text": "Trade Marks Act", "label": "STATUTE", "start_char": 19694, "end_char": 19709, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 108", "label": "PROVISION", "start_char": 19797, "end_char": 19808, "source": "regex", "metadata": {"linked_statute_text": "the Trade Marks Act, 1940", "statute": "the Trade Marks Act, 1940"}}, {"text": "Government of India Act, 1915", "label": "STATUTE", "start_char": 19816, "end_char": 19845, "source": "regex", "metadata": {}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 20431, "end_char": 20437, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1915", "statute": "the Government of India Act, 1915"}}, {"text": "cl. 15", "label": "PROVISION", "start_char": 20510, "end_char": 20516, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1915", "statute": "the Government of India Act, 1915"}}, {"text": "cl. 11", "label": "PROVISION", "start_char": 20629, "end_char": 20635, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1915", "statute": "the Government of India Act, 1915"}}, {"text": "cl. 16", "label": "PROVISION", "start_char": 20966, "end_char": 20972, "source": "regex", "metadata": {"statute": null}}, {"text": "Trade Marks Act", "label": "STATUTE", "start_char": 21116, "end_char": 21131, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 108", "label": "PROVISION", "start_char": 21280, "end_char": 21286, "source": "regex", "metadata": {"linked_statute_text": "Notwithstanding the said omission this 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"end_char": 22563, "source": "regex", "metadata": {}}, {"text": "cl. 15", "label": "PROVISION", "start_char": 22785, "end_char": 22791, "source": "regex", "metadata": {"linked_statute_text": "the Government F of India Act, 1915", "statute": "the Government F of India Act, 1915"}}, {"text": "Secretary of State for India v. Chellikani Rama Rao", "label": "RESPONDENT", "start_char": 23797, "end_char": 23848, "source": "ner", "metadata": {"in_sentence": "Chandrasekhara Thevar( 2 ); Secretary of State for India v. Chellikani Rama Rao( 8 ); Maung Ba Thaw v. Ma Pin('); and Hem c Singh v. Basant Das(\")."}}, {"text": "s. 108", "label": "PROVISION", "start_char": 24306, "end_char": 24312, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1915", "label": "STATUTE", "start_char": 24320, "end_char": 24349, "source": "regex", "metadata": {}}, {"text": "s. 39", "label": "PROVISION", "start_char": 24367, "end_char": 24372, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1915", "statute": "the Government of India Act, 1915"}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 24487, "end_char": 24493, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1915", "statute": "the Government of India Act, 1915"}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 24821, "end_char": 24827, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1915", "statute": "the Government of India Act, 1915"}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 25334, "end_char": 25340, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1915", "statute": "the Government of India Act, 1915"}}, {"text": "cl. 37", "label": "PROVISION", "start_char": 25518, "end_char": 25524, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 43", "label": "PROVISION", "start_char": 25783, "end_char": 25788, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 39", "label": "PROVISION", "start_char": 25875, "end_char": 25885, "source": "regex", "metadata": {"statute": null}}, {"text": "Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 26733, "end_char": 26750, "source": "ner", "metadata": {"in_sentence": "Mr. Viswanatha Sastri contends that the last sentence in s. 43 of the Act gives colour to the expression \"final\"."}}, {"text": "s. 43", "label": "PROVISION", "start_char": 26786, "end_char": 26791, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 43", "label": "PROVISION", "start_char": 27146, "end_char": 27151, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 43", "label": "PROVISION", "start_char": 27320, "end_char": 27325, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 43", "label": "PROVISION", "start_char": 27752, "end_char": 27757, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 43", "label": "PROVISION", "start_char": 28093, "end_char": 28098, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 75(2)", "label": "PROVISION", "start_char": 28535, "end_char": 28543, "source": "regex", "metadata": {"statute": null}}, {"text": "Provincial Insol- B vency Act, 1920", "label": "STATUTE", "start_char": 28551, "end_char": 28586, "source": "regex", "metadata": {}}, {"text": "s. 4(2)", "label": "PROVISION", "start_char": 28613, "end_char": 28620, "source": "regex", "metadata": {"linked_statute_text": "the Provincial Insol- B vency Act, 1920", "statute": "the Provincial Insol- B vency 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"ner", "metadata": {"in_sentence": "Lord Lorebum, L.C. construed the said section thus :\n\n\"Where it says, speaking of such an order, that it is to be final, I think it means there is to be an end of the business at quarter sessions ........ \"."}}, {"text": "s. 71", "label": "PROVISION", "start_char": 30588, "end_char": 30593, "source": "regex", "metadata": {"linked_statute_text": "the Police Act, 1890", "statute": "the Police Act, 1890"}}, {"text": "s. 43", "label": "PROVISION", "start_char": 31114, "end_char": 31119, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 43 and 39", "label": "PROVISION", "start_char": 31412, "end_char": 31425, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39(2)", "label": "PROVISION", "start_char": 31903, "end_char": 31911, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Arbitration Act, 1940", "label": "STATUTE", "start_char": 31919, "end_char": 31947, "source": "regex", "metadata": {}}, {"text": 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{"document_id": "1965_2_771_781_EN", "year": 1965, "text": "BABU AND 3 OTHERS\n\nSTATE OF UTIAR PRADESH\n\nJanuary 19, 1965\n\n[K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH,\n\nJ. R. MUDHOLKAR AND S. M. SIKRI JJ.)\n\nDivision Bench-Difference between two judges refe\"ed to a t_hird Judg~Thirtl Judge how far free to come to his own conclusion-Code of Criminal Procedure, (Act 5 of 1898), s. 429.\n\nCertificate of fitness-High Court when should grant certificate in criminal cases-Constitution of India Art. 134(1) (c).\n\nThe appellants were convicted by the Sessions Judge under s. 312 Pead with s. 34 of the Indian Penal Code. Two of them were sentenced to death and two to imprisonment for life. Their appeal before the High Court was heard by a Division Bench of two judges, one of whom was for allowing it, the other for dismissing it. The third Judge to whom it was referred dismissed tho appeal. The appellants applied for a certificate of fitness to appeal to the Supreme Court.\n\nThe certificate was gtanted mainly on the ground that the third Judge who heard the appeal hid omitted to discuss at length the question of the genuineness of the\n\nlint information report.\n\nIn the Supreme Court objection was taken on behalf of the State that the certificate of fitness granted by the High Court was incompetent .E in view of the previous dicisions of this Court in Haripada Dey v. State of West Bengal & Anr. [1956] S.C.R. 639, Nar Singh & Anr. v. State of\n\nUttar Pradesh, [1955] I S.C.R. 238, Sunder Singh v. State of Uttar Pradesh, A.I.R. (1956) S.C. 411 and Khusha!rai v. State of Bombay, [1958]\n\nS.C.R. 552.\n\nThe appellants urged that these cases be reconsidered.\n\nA plea for the reduction of the death sentences was also made.\n\nHELD: (i) Section 429 of the Criminal Procedure Code contem F plates that it is for the third Judge to decide on what points he shall bear arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit.\n\nIt was sufficient for the third Judge to have said on the question of the First Information Report that be did not consider it necessary to decide the point but if it was necessary he was in agreement with the Judge on the Division Bench who was for dismissing the appeal.\n\nThere was therefore a proper decision by the third Judge and the certificate could not be based on the omission to G &scus.. the doubts about the First Information Report. [771 F-H]\n\n(ii) The Constitution does not contemplate a criminal jurisdiction for this court except in these cases covered by clauses (a) and (b) of Ari. 134 which provide for appeals as of right. The High Court before it certifies the case must be satisfied that it involves some substantial l':tion of law or principle._ On!~ a case involviug something. m~ mere appreciation of evidence ts contemplate~ by the Constituti':\"' for the grant of a certificate. What that may be will depend on the circumstances of the case but the High Court should be slow to certify CllllOS.\n\nThe High Court. should not .overlook tha~ there _is a further remedy by way of special leave which may be mvoked 1n cases where\n\n772 SUPREME COUllT REPORTS\n\n[1965] 2 S.C.R\n\nthe certificate is refused. The present certificate did not comply with the A requirements of Art. J34(1)(c) as explained above. [780 C-P; 781 Al\n\nCase law considered.\n\n(iii) That whenever two Judges in appeal differ on the question of sentence, death sentence should not be imposed without compelling reasons cannot be raised to the pedestal of a rule, for that would leave the sentence to the determination of one Judge to the exclusion of the other.\n\nEach case must be decided on its own facts and a sentence of imprisonment for life can only be substituted if the facts justify that the extreme penalty of Jaw should not be imposed. [781 E-P]\n\nKa/awati and Another v. State of Himacha/ Pradesh, [1953] S.C.R. 546 and Pandurang, Tukia and Bhillia v. State of Hyderabad, [19551\n\n1 S.C.R. 1083, referred to.\n\nCRIMINAL APPELLATE JUllISDICTION: Criminal Appeal No. 179 of 1964.\n\nAppeal from the judgment and order dated August 21, 1963, of the Allahabad High Court in Criminal Appeals Nos. 2271 ancl 2272of1962.\n\nNur-ud-din Ahmad and J. P. Gayal, for the appellants.\n\n0. P. Rana, for the respondent.\n\nThe Judgment of the Court was delivered by Hidayatullah, J.-This is an appeal by certificate against the judgment of the High Court of Allahabad dated May 24, 1963 by which the conviction of and sentences passed on the four E appellants under s. 302 read with s. 34 of the Indian Penal Code were confirmed. Of the appellants, Babu Singh and Aram Singh have been sentenced to death and Gajram Singh and Ram Singh to imprisonment for life.\n\nThe charge against them was that they had murdered one Babu Singh pradhan at village Behjoi on October 11, 1961. The pradhan was attacked by the appel- F !ants with spears, gandasa and lathi.\n\nThe spears were with Aram Singh and Ram Singh, the gandasa with Babu Singh and the lathi with Gajram Singh.\n\nThe motive for the attack was said to be some former quarrels between Babu Singh pradhan and father of Babu Singh, the appellant and the action of the pradhan after G his election in supporting on behalf of the Gaon Samaj proceedings for encroachment started against the fathers of the appellants ientenced to death.\n\nOn the day of occurrence Babu Singh pradhan had gone on cycle to Behjoi to negotiate for the purchase of a Persian wheel.\n\nHe had his cycle repaired by one Amrik Singh who was examined H as a court witness.\n\nHe was returning to his own village Alpur situated to the North-East of Behjoi at a distance of four miles\n\nA when he was way-laid, felled from the cycle and fatally attacked by the appellants.\n\nThe report of the incident was made by his brother Sangram Singh at Behjoi Police Station at 8.30 P.M.\n\nSangram Singh claimed to have accompanied his brother to Behjoi and to be in his company at the time of the assault.\n\nHe was the principal eye-witness in the case.\n\nHe gave the time of the assault B as 6 P .M. The First Information Report also mentioned the names of Man Sukh (P.W. 9), Ved Ram (P.W. 4) and Jia Lal (P.W. 11)\n\nas eye-witnesses.\n\nIn the Report one Umrao was also named but he was not examined as it was alleged that he had been won over by the defence. c The prosecution examined 16 witnesses in support of the case.\n\nTwo witnesses were examined by the court and 4 witnesses were examined for the defence.\n\nThe Sessions Judge, Moradabad accepted the evidence of enmity and also of the eye-witnesses and convicting the appellants under s. 302/34, Indian Penal Code sentenced them as above.\n\nAram Singh who had struck Babu D Singh pradhan on the head and transfixed it with his spear from\n\ntemple to temple and caused other injuries on vital organs waa sentenced to death as also Babu Singh who had almost decapitated Babu Singh pradhan with gandasa.\n\nThe other two appellants were given the lesser punishment because they had played a minor part.\n\nAll accused appealed to the High Court.\n\nI The appeal was heard in the High Court by D. S. Mathur and Gyanendra Kumar, JJ. and Mathur, J. was for dismissing the appeal while Gyanendra Kumar, J. was for allowing it.\n\nThe points of difference were (a) whether the First Information Report was made on October 11, 1961 at 8.30 P.M. or much later, (b) wh~ r p!er the offence took place at 6 P.M. or later when there was no fight to identify the assailants and ( c) whether the eye-witnesses were at all present at the scene and/or were reliable. Mathur J. concurred with all the conclusions of the Sessions Judge; Gvaoendra Kumar, J. differed because he disbelieved that Sanrrram Singh had accompanied his brother.\n\nHis reasons were that he G need not have accompanied the pradhan and the shop-keeper with\n\nwhom the brothers were said to have dealt for the purchase of the Persian wheel was not examined and Amrik Singh who repaired the cycle of the pradhan did not mention Sangram Singh.\n\nHe observed that if Sangram was present at the scene he too would have been slain and the statement that he .was pedalling 14 or 15 B paces behind the pradhan was not believable because cyclists generally ride abreast. He pointed out that as only one cycle was found at the spot and not the other Sangram Singh had not\n\nSUPREME COURT REPORTS\n\n[ 1965] 2 S.C.R.\n\ngone there on cycle.\n\nHe deduced this from the fact that Sangram A Singh admitted to have gone on foot to Behjoi to make his report and he rejected his explanation that he did so because the cycle had no light observing that Sangram Singh could have borrowed an electric torch or some other light.\n\nHe disbelieved V ed Ram because he had earlier spoken of lathi blows and no injuries caused by a lathi were detected at the postmortem examination. B One of the accused (Ram Singh) had passed a decree against Ved Ram as a Sarpanch and this was accepted to be the probable motive for his false testimony.\n\nMan Sukh was not believed be'- cause he was a previous \"history sheeter\". Jia Lal, who had stated that the occurrence took place at 7 P.M., and was consequently declared hostile by the prosecution, was believed by the learned C Judge who came to the conclusion that no light was available at that hour for proper identification.\n\nThe learned Judge was also convinced that ¢.ere was a delay in the despatch of the copy of the First Information Report, special report and the case diary, and he was of the opinion that the First Information did not 0 accompany the requisition for postmortem examination sent to the doctor.\n\nHe was finally of the view that as no independent eyewitness was examined the benefit of the doubt must be given to the accused.\n\nThe two judgments were then laid before Takru, J. who agreed with Mathur, J. in accepting the prosecution case. As a result ef E his decision the appeals were dismissed.\n\nOn the application for certificate of fitness the two learned Judges, who had originally heard the appeal, again differed : Mathur, J. was in favour of refusing the certificate while Gyanendra Kumar, J. was for granting it.\n\nThe latter stated that the main point of difference earlier was over F the authenticity of the First Information Report, its time and date and Takru, J. had merely stated at the end of his order that if it was necessary for him to decide the point he would have agreed with Mathur, J. and would have accepted the First Information Report as genuine. Gyanendra Kumar, J. felt considerably aggrieved, as it appears from his order, that this matter. which was fully argued G before Takru, J. was not discussed by him in detail. The papers were laid before Broome, J. who agreed with Gyanendra Kumar, J. on the point that Takru J. had not gone into the question of the authenticity of the First Information Report and the genuineness of the various documents which were filed by the prosecution in support of it.\n\nHe was for granting a certificate.\n\nH When this appeal came on for hearing before a Divisional Bench the State raised the contention that the certificate granted by\n\nA the High Court was incompetent in view of the settled view of this Court in Haripada Dey v. The State of West Bengal and Anr.(') Nar Singh and Anr. v. The State of Uttar Pradesh(') and Sunder Singh v. State of Uttar Pradesh(\"). The appellants then objected that the point involved was one of interpretation of Art. 134 ( 1) ( c) of the Constitution and it could only have been decided by a Bench B of five Judges and the decisions above-mentioned being of Divisional Benches were without jurisdiction.\n\nThe case was accordingly laid before us for disposal. Before us the same objection to the competency of the appeal was raised and it was contended on the other side that the decisions of this Court limiting the powers of the High Court to grant certificate in criminal cases under Art.\n\nC 134(l)(c) were not correct and it is these points which require decision from us.\n\nThere seems to be some misapprehension about the manner in which the third Judge is required by law to proceed when there is a difference of opinion between two learned Judges in the High D Court in the decision of an appeal.\n\nThe provisions of s. 429, Criminal Procedure Code perhaps escaped notice in the High Court.\n\nThis section provides ;\n\n\"429. Procedure where Judges of Court of Appeal are equally divided.\n\nWhen the Judges composing the Court of Appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion.\" The s:ction contemplates tllat it is for third Judge to decide on what points he shall hear arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit.\n\nIn our judgment, it was sufficient for Takru J to have said on the question of the First Information Report tht he did not consider it G necessary to decide the point but if it was necessary he was in agreement with all that Matht•r J had said.\n\nThere was, therefore, a proper decision by Takru J and the cer:ificate could not be based upon the omission to discuss the First Information Report and the doubts about it.\n\nIt was contended by the State that the certificate attempted to H reopen questions of fact which must be held to be decided finally\n\n(1) [1956] s.c.R. 639.\n\n(2) [1955] 1 S.C.R. 238.\n\n(3) A. I. R. [1956] S.C. 411.\n\nUSup./65-3\n\nSUPIU!MB COURT REPORTS\n\n\nby the High Court in concurrence with the Sessions Judge and such A a certificate was incompetent in view of the decisions of this Court earlier mentioned.\n\nReference was also made to Khushalrao v.\n\nState of Bombay('). The appellants in reply contended that the interpretation put upon Art. 134 ( 1) ( c) in the earlier cases of this Court was too narrow and required to be reconsidered.\n\nB Article 134 provides for appeals to the Supreme Court in criminal matters.\n\nClause ( 1) of this Article, which alone is material • reads:\n\n\"134. Appellate jurisdiction of Supreme Court in regard to criminal matters. ( 1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court- ( a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or\n\n(b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or ( c) certifies that the case is a fit one for appeal to the Supreme Court : Provided that an appeal under sub-clause ( c) shall lie subject to such provisions as may be made in that behalf under clause ( 1) of article 145 and to such conditions as the High Court may establish or require. (2)\n\nThe first two sub-clauses deal with special situations and provide\n\nfor an appeal as of right and they need not be considered.\n\nThe third sub-clause permits an appeal in cases which the High Court certifies as fit for appeal.\n\nThe sub-clause does not state the condi- G lions necessary for such certification.\n\nNo rules under Art. 145 regulating generally the practice and procedure of this Court for the grant of certificate by the High Court have been framed.\n\nThe power which is granted is no doubt discretionary but in view of the word \"certifies\" it is clear that such power must be exercised with great circumspection and only in a case which is really fit for ap- H peal.\n\nIt is impossible by a formula to indicate the precise limits\n\n(I) [19S8] S.C.R. SS2.\n\nBABU v. STATli (Hidayatullah, /.) 777\n\nA of such discretion, but the question has arisen on a number of occasions in this Court and some of the leading views may be considered.\n\nIn Haripada Dey v. The State of West Bengal and Anr.(1), the appellant was convicted under s. 411, Indian Penal Code and \" sentenced to two years' rigorous imprisonment for dishonestly receiving and retaining a motor car which he had reason to believe was stolen.\n\nHis appeal was dismissed by J.P. Mitter and Sisir Kumar Sen, JJ.\n\nHe applied for a certificate and according to the practice of the Calcutta High Court the petition was placed not 11cfore the Judges who heard the appeal but before another Bench C consisting of the Chief Justice and Lahiri J. The Chief Justice passed an elaborate order in the course of which he observed :\n\n\"In my view a certificate of fitness ought to issue in this case, although the question involved is one of fact.\n\nIn my view it is impossible not to feel in this case that there has not been as full and fair a trial as ought to have been held.\n\nIn the circumstances, it appears to me that the petitioner is entitled to have his case further consi- 1: dered and since such further consideration can only be given by the Supreme Court, I would grant the certificate prayed for.\" Aa the chief Justice himself said the question involved was one of fact, this Court did not approve of the certificate and held that it was no certificate at all.\n\nIt was pointed out that a certificate F granted in Criminal Appeal No. 146 of 1956 (Om Prakash v. State of U.P.) was not accepted when no reasons were given and that the certificate in Haripada Dey's(' ), case was also bad because the reasons were not sound. Bhagwati J, speaking on behalf of Imam and Govinda Menon JJ and himself, said :\n\n\"Whatever may have been the misgivings of the learned Chief Justice in the matter of a full and fair trial not having been held we are of the opinion that he had no jurisdiction to grant a certificate under article 134(1) (c) in a case where admittedly in his opinion the question involved was one of face-where in spite of a full and fair trial not having been vouchsafed to the appellant, the question was merely one of a further\n\n(1) (1956] S.C.ll. 639.\n\n778 SUPl.BMB OOUJ.T llEPORTS\n\n\nconsideration of the case of the appellant on facts. The mere disability of the High Court to remedy this circumstance and vouchsafe a full and fair trial could not be any justification for granting a certificate under article 134(1) (c) and converting this Court into a Court of Appeal on facts.\n\nNo High Court has the jurisdiction to pass on mere questions of fact for further consideration by this Court under the relevant articles of the Constitution.\"\n\nThe observations, if we may say so with respect, are too absolute to be a safe guide in the infinite variety of cases that come before the courts.\n\nThere are cases and cases.\n\nIt can C only safely be said that under Art. 134 ( 1 )( c) this Court has not been made an ordinary Court of Criminal Appeal and the High Courts should not by their certificates attempt to create a jurisdiction which was not intended.\n\nThe High Courts should, therefore, exercise their discretion sparingly and with care. The 0 certificate should not be granted to afford another hearing on facts unless there is some error of a fundamental character such as occurred in Nar Singh's(') case.\n\nIn Nar Slngh's case(') 24 persons were tried under ss. 302/ 149, 307 /149 and 148, Indian Penal Code and eight were convicted by the Court of Session. On appeal to the High Court five E more were acquitted and that left Nar Singh, Roshan Singh and one Nanhu Singh.\n\nTheir convictions were upheld by the High Court and their sentences were maintained.\n\nWhat had happened in the case of Nanhu Singh may now be stated from the judgment of this Court:\n\n\"By a curious misreading of the evidence this Nanhu Singh was mixed up with Bechan Singh.\n\nWhat the High Court really meant to do was to convict Bechan Singh and acquit Nanhu Singh.\n\nInstead of that they acquitted Bechan Singh and convicted Nanhu\n\nSingh.\n\nAs s1>on as the learned High Court Judges G realised their mistake they communicated with the State Government and an order was thereupon passed by that Government remitting the sentence mistakenly passed on Nanhu and directing that he be released.\"\n\nAll the accused applied for a certificate and in view of what had H happened and as the conviction of Nanhu Singh on a murder\n\n(I) [196S] S.C.R. 238.\n\nA charge was still subsisting a common certificate was granted to all of them.\n\nThe High Court thought that the word \"case\" in Art. 134(l)(c) meant the case as a whole.\n\nNanhu Singh did not appeal and the appeal was filed by Nar Singh and Rosban Singh on the common certificate.\n\nThis Court pointed out that the High Court was wrong in thinking that the word \"case\" in B the sub-clause meant a case as a whole and the certificate in relation to accused other than Nanbu Singh was bad.\n\nThe certificate to Nanbu Singh was said to be proper.\n\nThe Divisional Bench then considered the case under Art. 13 6 (l ) for special leave but found it unfit.\n\nC In Sunder Singh v. The State of U.P. (1) it was laid down that unless a substantial question of law or principle was involved the case must not be certified as fit even though the question of fact may be difficult.\n\nKhushal Rao's(2 ) case again furnishes an example of an extraordinary situation. The High Court had based a conviction for murder on dying declarations which 'it D COJll>idered to be true but which required to be corroborated before they could be acted upon in view of the observations of this Court in Ramnath Madho Prasad v. State of Madhya Pradesh(\")-\". . . . . it is the settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration\".\n\nE Tlte Court fouqd corroboration in the fact that Khushalrao was absconding for a long time and was arrested from a room which had only one exit and that was locked on the outside.\n\nWhen the accused applied for certificate it was pointed out that there was some evidence which was not brought to F the notice of the High Court establishing that the accused was evading arrest in another case and the circumstance that he was hiding then became dubious.\n\nThe High Court felt constrained to give the certificate because under the ruling of this Court the conviction was assailable.\n\nThis Court pointed out that the certificate was bad because it was not granted by G the High Court on any \"difficult question of law or procedure which it thought required to be settled by this Court but on a question which is essentially one of fact, namely, whether there was sufficient evidence of the guilt of the accused\".\n\nThe certificate was perhaps of the type represented by the certificate to Nanhu Singh which was held proper.\n\nThe matter was H then considered in an elaborate judgment from the point of view\n\n(I) A. I. R. (1956] S.C. 411.\n\n(2) (1958] S. C. R. 552.\n\n(3) A. I. R. (19531 S.C. 42'J.\n\n7811 SUPREME COUllT REPORTS [1965] 2 S.C.ll.\n\nof Art. 136(1) and the view about dying declaration contained A in the earlier case was modified.\n\nThe evidence was examined afresh and the judgment of the High Court was affirmed.\n\nThese cases illustrate different angles of the problem. There is no doubt whatever that sub-clause ( c) does not confer an unlimited jurisdiction on the High Courts.\n\nThe power gives a B discretion but discretion must always be .eJ:ercised on some judicial principles.\n\nA similar clause in Art. 133, which alloW& appeals in civil cases, has been consistently interpreted as including only those cases which involve a question of general public importance. That test need not necessarily be applied to a criminal case but it is clear that mere questions of fact should c not be referred for decision. The Constitution does not contemplate a criminal jurisdiction for this Court except in those two cases covered by els. (a) and (b) which provide for appeals as of right.\n\nThe High Court before it certifies the case must be satisfied that it involves some substantial question of law or principle.\n\nIn a criminal appeal the High Court can consider the case on law and fact and if the High Court entertains doubt about 'the guilt of the accused or the sufficiency of the evidence it can always give the benefit to the accused there and then.\n\nIt is not necesary that the High Court should first convict him and then grant him a certificate so that this Court, if it thought fit, reverse the decision. It is thus obvious that only a case involving sometliing more than mere appreciation of evidence is contemplated by the Constitution for the grant of a certificate.\n\nWhat that may be will depend on the circumstances of the case but the High Court should be slow to certify cases.\n\nThe -High Cost should not overlook that there is a further remedy by way of special leave which may be invoked in cases where the certificate F is refused.\n\nIn this case the two learned Judges who first heard the apPcal differed on appreciation of evidence.\n\nThe Criminal Procedure Code contemplates the resolution of such a difference by the opinion of a third Judge.\n\nWe have already drawn attention to G the provisions of s. 429, Criminal Procedure Code relating to the hearing by the third Judge. It would appear to us that after the decision of the third Judge accepting the evidence against the appellants no question of fact survived. The learned Judge who heard the appeal on difference was also within his right in statin&\n\nthat the doubts which Gyanendra Kumar J. felt about the genuine- H ness of the First Information Report etc. did not affect him aad that he was in agreement with what Mathur J. had said on that part\n\nA of the case.\n\nIn our opinion, the certificate did not comply with the requirements of Art. 134(1 )( c) as explained by us here. We have considered this case from the point of view of Art. 136(1) but we do not find it fit for the grant of special leave.\n\nThe evidence in the case was . rightly appraised by Mathur J. and the doubts which Gyanendra Kumar J. entertained were not justified.\n\nB We do not, therefore, grant special leave.\n\nIt was contended that as long time has passed the sentence of death should be substituted by imprisonment for life and reliance was placed upon Kalawatl and Another v. The State of Himachal Pradesh(') where such action was taken.\n\nIn our judgment, each C case must be decided on its own facts and a sentence of imprisonment for life can only be substituted if the facts justify that the extreme penalty of the law should not be imposed.\n\nWe do not consider this to be such a case ..\n\nIt was next contended on the authority of Pandurang, Tukia\n\n0 and Bhillia v. The State Hyderabad(') that as the two learned Judges have differed, the extreme penalty of the law should not be imposed.\n\nIn the cited case the Judges had differed on the ques tion of sentence itself and the third Judge before whom the matter was placed was in favour of the death penalty.\n\nBose J, in reducing the sentence to imprisonment for life, observed : \"But E when appellate Judges, who agree on the question of guilt differ\n\non that of sentence, it is usual not to impose the death penalty unless there are compelling reasons\". This cannot be raised to the pedestal of a rule for that would leave the sentence to the detennination of one Judge to the exclusion of the other. In the present case both the Judges appear to have been in favour of the F death sentence because although Gyanendra Kumar J. was in favour of acquittal he did not object to the confinnation of the death sentence when Takru J. had given his opinion. The offence here Wa! brutal and normally the death penalty should follow.\n\nWe, therefore, decline to reduce the sentence passed. The appeal fails and is dismissed.\n\nG Appeal dismissed.\n\n(I [19S3f S.C.ll. S'46.\n\n(2) [19SS) 1 S.C.R. 1083.", "total_entities": 108, "entities": [{"text": "BABU AND 3 OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "BABU AND 3 OTHERS", "offset_not_found": false}}, {"text": "STATE OF UTIAR PRADESH", "label": "RESPONDENT", "start_char": 19, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "STATE OF UTIAR PRADESH", "offset_not_found": false}}, {"text": "January 19, 1965", "label": "DATE", "start_char": 43, "end_char": 59, "source": "ner", "metadata": {"in_sentence": "BABU AND 3 OTHERS\n\nSTATE OF UTIAR PRADESH\n\nJanuary 19, 1965\n\n[K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH,\n\nJ. R. MUDHOLKAR AND S. M. SIKRI JJ.)"}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 62, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO*", "offset_not_found": false}}, {"text": "M. 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"source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 4470, "end_char": 4475, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 4483, "end_char": 4500, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Babu Singh", "label": "PETITIONER", "start_char": 4536, "end_char": 4546, "source": "ner", "metadata": {"in_sentence": "Of the appellants, Babu Singh and Aram Singh have been sentenced to death and Gajram Singh and Ram Singh to imprisonment for life.", "canonical_name": "Babu Singh pradhan"}}, {"text": "Aram Singh", "label": "OTHER_PERSON", "start_char": 4551, "end_char": 4561, "source": "ner", "metadata": {"in_sentence": "Of the appellants, Babu Singh and Aram Singh have been sentenced to death and Gajram Singh and Ram Singh to imprisonment for life.", "canonical_name": "Gajram Singh"}}, {"text": "Gajram Singh", "label": "OTHER_PERSON", "start_char": 4595, "end_char": 4607, "source": "ner", "metadata": {"in_sentence": "Of the appellants, Babu Singh and Aram Singh have been sentenced to death and Gajram Singh and Ram Singh to imprisonment for life.", "canonical_name": "Gajram Singh"}}, {"text": "Ram Singh", "label": "OTHER_PERSON", "start_char": 4612, "end_char": 4621, "source": "ner", "metadata": {"in_sentence": "Of the appellants, Babu Singh and Aram Singh have been sentenced to death and Gajram Singh and Ram Singh to imprisonment for life.", "canonical_name": "Gajram Singh"}}, {"text": "Babu Singh", "label": "PETITIONER", "start_char": 4704, "end_char": 4714, "source": "ner", "metadata": {"in_sentence": "The charge against them was that they had murdered one Babu Singh pradhan at village Behjoi on October 11, 1961.", "canonical_name": "Babu Singh pradhan"}}, {"text": "Behjoi", "label": "GPE", "start_char": 4734, "end_char": 4740, "source": "ner", "metadata": {"in_sentence": "The charge against them was that they had murdered one Babu Singh pradhan at village Behjoi on October 11, 1961."}}, {"text": "October 11, 1961", "label": "DATE", "start_char": 4744, "end_char": 4760, "source": "ner", "metadata": {"in_sentence": "The charge against them was that they had murdered one Babu Singh pradhan at village Behjoi on October 11, 1961."}}, {"text": "Babu Singh pradhan", "label": "PETITIONER", "start_char": 5021, "end_char": 5039, "source": "ner", "metadata": {"in_sentence": "The motive for the attack was said to be some former quarrels between Babu Singh pradhan and father of Babu Singh, the appellant and the action of the pradhan after G his election in supporting on behalf of the Gaon Samaj proceedings for encroachment started against the fathers of the appellants ientenced to death.", "canonical_name": "Babu Singh pradhan"}}, {"text": "Amrik Singh", "label": "WITNESS", "start_char": 5425, "end_char": 5436, "source": "ner", "metadata": {"in_sentence": "He had his cycle repaired by one Amrik Singh who was examined H as a court witness."}}, {"text": "Alpur", "label": "GPE", "start_char": 5513, "end_char": 5518, "source": "ner", "metadata": {"in_sentence": "He was returning to his own village Alpur situated to the North-East of Behjoi at a distance of four miles\n\nA when he was way-laid, felled from the cycle and fatally attacked by the appellants."}}, {"text": "Sangram Singh", "label": "OTHER_PERSON", "start_char": 5723, "end_char": 5736, "source": "ner", "metadata": {"in_sentence": "The report of the incident was made by his brother Sangram Singh at Behjoi Police Station at 8.30 P.M.\n\nSangram Singh claimed to have accompanied his brother to Behjoi and to be in his company at the time of the assault.", "canonical_name": "Sangram A Singh"}}, {"text": "Behjoi Police Station", "label": "ORG", "start_char": 5740, "end_char": 5761, "source": "ner", "metadata": {"in_sentence": "The report of the incident was made by his brother Sangram Singh at Behjoi Police Station at 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The First Information Report also mentioned the names of Man Sukh (P.W. 9), Ved Ram (P.W. 4) and Jia Lal (P.W. 11)\n\nas eye-witnesses."}}, {"text": "Ved Ram", "label": "WITNESS", "start_char": 6062, "end_char": 6069, "source": "ner", "metadata": {"in_sentence": "He gave the time of the assault B as 6 P .M. The First Information Report also mentioned the names of Man Sukh (P.W. 9), Ved Ram (P.W. 4) and Jia Lal (P.W. 11)\n\nas eye-witnesses."}}, {"text": "Jia Lal", "label": "WITNESS", "start_char": 6083, "end_char": 6090, "source": "ner", "metadata": {"in_sentence": "He gave the time of the assault B as 6 P .M. The First Information Report also mentioned the names of Man Sukh (P.W. 9), Ved Ram (P.W. 4) and Jia Lal (P.W. 11)\n\nas eye-witnesses."}}, {"text": "Umrao", "label": "WITNESS", "start_char": 6139, "end_char": 6144, "source": "ner", "metadata": {"in_sentence": "In the Report one Umrao was also named but he was not examined as it was alleged that he had been won over by the defence."}}, {"text": "Sessions Judge, Moradabad", "label": "COURT", "start_char": 6402, "end_char": 6427, "source": "ner", "metadata": {"in_sentence": "The Sessions Judge, Moradabad accepted the evidence of enmity and also of the eye-witnesses and convicting the appellants under s. 302/34, Indian Penal Code sentenced them as above."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 6526, "end_char": 6532, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 6537, "end_char": 6554, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Babu D Singh", "label": "PETITIONER", "start_char": 6607, "end_char": 6619, "source": "ner", "metadata": {"in_sentence": "Aram Singh who had struck Babu D Singh pradhan on the head and transfixed it with his spear from\n\ntemple to temple and caused other injuries on vital organs waa sentenced to death as also Babu Singh who had almost decapitated Babu Singh pradhan with gandasa.", "canonical_name": "Babu Singh pradhan"}}, {"text": "D. S. Mathur", "label": "JUDGE", "start_char": 7023, "end_char": 7035, "source": "ner", "metadata": {"in_sentence": "I The appeal was heard in the High Court by D. S. Mathur and Gyanendra Kumar, JJ."}}, {"text": "Gyanendra Kumar", "label": "JUDGE", "start_char": 7040, "end_char": 7055, "source": "ner", "metadata": {"in_sentence": "I The appeal was heard in the High Court by D. S. Mathur and Gyanendra Kumar, JJ."}}, {"text": "Mathur", "label": "JUDGE", "start_char": 7065, "end_char": 7071, "source": "ner", "metadata": {"in_sentence": "and Mathur, J. was for dismissing the appeal while Gyanendra Kumar, J. was for allowing it."}}, {"text": "Gvaoendra Kumar", "label": "JUDGE", "start_char": 7548, "end_char": 7563, "source": "ner", "metadata": {"in_sentence": "Mathur J. concurred with all the conclusions of the Sessions Judge; Gvaoendra Kumar, J. differed because he disbelieved that Sanrrram Singh had accompanied his brother."}}, {"text": "Sanrrram Singh", "label": "OTHER_PERSON", "start_char": 7605, "end_char": 7619, "source": "ner", "metadata": {"in_sentence": "Mathur J. concurred with all the conclusions of the Sessions Judge; Gvaoendra Kumar, J. differed because he disbelieved that Sanrrram Singh had accompanied his brother.", "canonical_name": "Sangram A Singh"}}, {"text": "Amrik Singh", "label": "OTHER_PERSON", "start_char": 7842, "end_char": 7853, "source": "ner", "metadata": {"in_sentence": "His reasons were that he G need not have accompanied the pradhan and the shop-keeper with\n\nwhom the brothers were said to have dealt for the purchase of the Persian wheel was not examined and Amrik Singh who repaired the cycle of the pradhan did not mention Sangram Singh."}}, {"text": "Sangram", "label": "OTHER_PERSON", "start_char": 7944, "end_char": 7951, "source": "ner", "metadata": {"in_sentence": "He observed that if Sangram was present at the scene he too would have been slain and the statement that he .was pedalling 14 or 15 B paces behind the pradhan was not believable because cyclists generally ride abreast.", "canonical_name": "Sangram A Singh"}}, {"text": "Sangram A Singh", "label": "OTHER_PERSON", "start_char": 8342, "end_char": 8357, "source": "ner", "metadata": {"in_sentence": "He deduced this from the fact that Sangram A Singh admitted to have gone on foot to Behjoi to make his report and he rejected his explanation that he did so because the cycle had no light observing that Sangram Singh could have borrowed an electric torch or some other light.", "canonical_name": "Sangram A Singh"}}, {"text": "V ed Ram", "label": "OTHER_PERSON", "start_char": 8599, "end_char": 8607, "source": "ner", "metadata": {"in_sentence": "He disbelieved V ed Ram because he had earlier spoken of lathi blows and no injuries caused by a lathi were detected at the postmortem examination."}}, {"text": "Ved Ram", "label": "OTHER_PERSON", "start_char": 8793, "end_char": 8800, "source": "ner", "metadata": {"in_sentence": "B One of the accused (Ram Singh) had passed a decree against Ved Ram as a Sarpanch and this was accepted to be the probable motive for his false testimony."}}, {"text": "Man Sukh", "label": "OTHER_PERSON", "start_char": 8889, "end_char": 8897, "source": "ner", "metadata": {"in_sentence": "Man Sukh was not believed be'- cause he was a previous \"history sheeter\"."}}, {"text": "Jia Lal", "label": "OTHER_PERSON", "start_char": 8963, "end_char": 8970, "source": "ner", "metadata": {"in_sentence": "Jia Lal, who had stated that the occurrence took place at 7 P.M., and was consequently declared hostile by the prosecution, was believed by the learned C Judge who came to the conclusion that no light was available at that hour for proper identification."}}, {"text": "Takru", "label": "JUDGE", "start_char": 9682, "end_char": 9687, "source": "ner", "metadata": {"in_sentence": "The two judgments were then laid before Takru, J. who agreed with Mathur, J. in accepting the prosecution case."}}, {"text": "Broome", "label": "JUDGE", "start_char": 10591, "end_char": 10597, "source": "ner", "metadata": {"in_sentence": "The papers were laid before Broome, J. who agreed with Gyanendra Kumar, J. on the point that Takru J. had not gone into the question of the authenticity of the First Information Report and the genuineness of the various documents which were filed by the prosecution in support of it."}}, {"text": "Art. 134", "label": "PROVISION", "start_char": 11326, "end_char": 11334, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 429", "label": "PROVISION", "start_char": 12136, "end_char": 12142, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 12144, "end_char": 12167, "source": "regex", "metadata": {}}, {"text": "[1955] 1 S.C.R. 238", "label": "CASE_CITATION", "start_char": 13406, "end_char": 13425, "source": "regex", "metadata": {}}, {"text": "Art. 134", "label": "PROVISION", "start_char": 13782, "end_char": 13790, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 134", "label": "PROVISION", "start_char": 13887, "end_char": 13898, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "India", "label": "GPE", "start_char": 14253, "end_char": 14258, "source": "ner", "metadata": {"in_sentence": "1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court- ( a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or\n\n(b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or ( c) certifies that the case is a fit one for appeal to the Supreme Court : Provided that an appeal under sub-clause ( c) shall lie subject to such provisions as may be made in that behalf under clause ( 1) of article 145 and to such conditions as the High Court may establish or require. ("}}, {"text": "article 145", "label": "PROVISION", "start_char": 14768, "end_char": 14779, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 145", "label": "PROVISION", "start_char": 15178, "end_char": 15186, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "SS2", "label": "PROVISION", "start_char": 15612, "end_char": 15615, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 411", "label": "PROVISION", "start_char": 15887, "end_char": 15893, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 15895, "end_char": 15912, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "J.P. Mitter", "label": "JUDGE", "start_char": 16089, "end_char": 16100, "source": "ner", "metadata": {"in_sentence": "His appeal was dismissed by J.P. Mitter and Sisir Kumar Sen, JJ."}}, {"text": "Sisir Kumar Sen", "label": "JUDGE", "start_char": 16105, "end_char": 16120, "source": "ner", "metadata": {"in_sentence": "His appeal was dismissed by J.P. Mitter and Sisir Kumar Sen, JJ."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 16193, "end_char": 16212, "source": "ner", "metadata": {"in_sentence": "He applied for a certificate and according to the practice of the Calcutta High Court the petition was placed not 11cfore the Judges who heard the appeal but before another Bench C consisting of the Chief Justice and Lahiri J. The Chief Justice passed an elaborate order in the course of which he observed :\n\n\"In my view a certificate of fitness ought to issue in this case, although the question involved is one of fact."}}, {"text": "Lahiri", "label": "JUDGE", "start_char": 16344, "end_char": 16350, "source": "ner", "metadata": {"in_sentence": "He applied for a certificate and according to the practice of the Calcutta High Court the petition was placed not 11cfore the Judges who heard the appeal but before another Bench C consisting of the Chief Justice and Lahiri J. The Chief Justice passed an elaborate order in the course of which he observed :\n\n\"In my view a certificate of fitness ought to issue in this case, although the question involved is one of fact."}}, {"text": "Haripada Dey", "label": "OTHER_PERSON", "start_char": 17262, "end_char": 17274, "source": "ner", "metadata": {"in_sentence": "146 of 1956 (Om Prakash v. State of U.P.) was not accepted when no reasons were given and that the certificate in Haripada Dey's(' ), case was also bad because the reasons were not sound."}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 17336, "end_char": 17344, "source": "ner", "metadata": {"in_sentence": "Bhagwati J, speaking on behalf of Imam and Govinda Menon JJ and himself, said :\n\n\"Whatever may have been the misgivings of the learned Chief Justice in the matter of a full and fair trial not having been held we are of the opinion that he had no jurisdiction to grant a certificate under article 134(1) (c) in a case where admittedly in his opinion the question involved was one of face-where in spite of a full and fair trial not having been vouchsafed to the appellant, the question was merely one of a further\n\n(1) (1956] S.C.ll."}}, {"text": "Imam", "label": "OTHER_PERSON", "start_char": 17370, "end_char": 17374, "source": "ner", "metadata": {"in_sentence": "Bhagwati J, speaking on behalf of Imam and Govinda Menon JJ and himself, said :\n\n\"Whatever may have been the misgivings of the learned Chief Justice in the matter of a full and fair trial not having been held we are of the opinion that he had no jurisdiction to grant a certificate under article 134(1) (c) in a case where admittedly in his opinion the question involved was one of face-where in spite of a full and fair trial not having been vouchsafed to the appellant, the question was merely one of a further\n\n(1) (1956] S.C.ll."}}, {"text": "Govinda Menon", "label": "JUDGE", "start_char": 17379, "end_char": 17392, "source": "ner", "metadata": {"in_sentence": "Bhagwati J, speaking on behalf of Imam and Govinda Menon JJ and himself, said :\n\n\"Whatever may have been the misgivings of the learned Chief Justice in the matter of a full and fair trial not having been held we are of the opinion that he had no jurisdiction to grant a certificate under article 134(1) (c) in a case where admittedly in his opinion the question involved was one of face-where in spite of a full and fair trial not having been vouchsafed to the appellant, the question was merely one of a further\n\n(1) (1956] S.C.ll."}}, {"text": "article 134(1)", "label": "PROVISION", "start_char": 17624, "end_char": 17638, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "article 134(1)", "label": "PROVISION", "start_char": 18125, "end_char": 18139, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 134", "label": "PROVISION", "start_char": 18580, "end_char": 18588, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Nar Singh", "label": "OTHER_PERSON", "start_char": 19011, "end_char": 19020, "source": "ner", "metadata": {"in_sentence": "The 0 certificate should not be granted to afford another hearing on facts unless there is some error of a fundamental character such as occurred in Nar Singh's(') case.", "canonical_name": "Nar Singh"}}, {"text": "Nar Slngh", "label": "OTHER_PERSON", "start_char": 19036, "end_char": 19045, "source": "ner", "metadata": {"in_sentence": "In Nar Slngh's case(') 24 persons were tried under ss.", "canonical_name": "Nar Singh"}}, {"text": "ss. 302", "label": "PROVISION", "start_char": 19084, "end_char": 19091, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 19116, "end_char": 19133, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Roshan Singh", "label": "OTHER_PERSON", "start_char": 19264, "end_char": 19276, "source": "ner", "metadata": {"in_sentence": "On appeal to the High Court five E more were acquitted and that left Nar Singh, Roshan Singh and one Nanhu Singh.", "canonical_name": "Roshan Singh"}}, {"text": "Nanhu Singh", "label": "OTHER_PERSON", "start_char": 19285, "end_char": 19296, "source": "ner", "metadata": {"in_sentence": "On appeal to the High Court five E more were acquitted and that left Nar Singh, Roshan Singh and one Nanhu Singh.", "canonical_name": "Nanhu\n\nSingh"}}, {"text": "Bechan Singh", "label": "OTHER_PERSON", "start_char": 19558, "end_char": 19570, "source": "ner", "metadata": {"in_sentence": "What had happened in the case of Nanhu Singh may now be stated from the judgment of this Court:\n\n\"By a curious misreading of the evidence this Nanhu Singh was mixed up with Bechan Singh."}}, {"text": "Nanhu\n\nSingh", "label": "OTHER_PERSON", "start_char": 19723, "end_char": 19735, "source": "ner", "metadata": {"in_sentence": "Instead of that they acquitted Bechan Singh and convicted Nanhu\n\nSingh.", "canonical_name": "Nanhu\n\nSingh"}}, {"text": "s1", "label": "PROVISION", "start_char": 19741, "end_char": 19743, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Nanhu", "label": "OTHER_PERSON", "start_char": 19946, "end_char": 19951, "source": "ner", "metadata": {"in_sentence": "As s1>on as the learned High Court Judges G realised their mistake they communicated with the State Government and an order was thereupon passed by that Government remitting the sentence mistakenly passed on Nanhu and directing that he be released.\""}}, {"text": "Art. 134(l)(c)", "label": "PROVISION", "start_char": 20267, "end_char": 20281, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Rosban Singh", "label": "OTHER_PERSON", "start_char": 20379, "end_char": 20391, "source": "ner", "metadata": {"in_sentence": "Nanhu Singh did not appeal and the appeal was filed by Nar Singh and Rosban Singh on the common certificate.", "canonical_name": "Roshan Singh"}}, {"text": "Nanbu Singh", "label": "OTHER_PERSON", "start_char": 20604, "end_char": 20615, "source": "ner", "metadata": {"in_sentence": "This Court pointed out that the High Court was wrong in thinking that the word \"case\" in B the sub-clause meant a case as a whole and the certificate in relation to accused other than Nanbu Singh was bad.", "canonical_name": "Nanhu\n\nSingh"}}, {"text": "Art. 13", "label": "PROVISION", "start_char": 20733, "end_char": 20740, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Khushal Rao's(2", "label": "OTHER_PERSON", "start_char": 21005, "end_char": 21020, "source": "ner", "metadata": {"in_sentence": "Khushal Rao's(2 ) case again furnishes an example of an extraordinary situation.", "canonical_name": "Khushal Rao's(2"}}, {"text": "Khushalrao", "label": "OTHER_PERSON", "start_char": 21580, "end_char": 21590, "source": "ner", "metadata": {"in_sentence": "E Tlte Court fouqd corroboration in the fact that Khushalrao was absconding for a long time and was arrested from a room which had only one exit and that was locked on the outside.", "canonical_name": "Khushal Rao's(2"}}, {"text": "Art. 136(1)", "label": "PROVISION", "start_char": 22770, "end_char": 22781, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 23239, "end_char": 23247, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 429", "label": "PROVISION", "start_char": 24954, "end_char": 24960, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 24962, "end_char": 24985, "source": "regex", "metadata": {}}, {"text": "Art. 134(1 )( c)", "label": "PROVISION", "start_char": 25550, "end_char": 25566, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Art. 136(1)", "label": "PROVISION", "start_char": 25647, "end_char": 25658, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Pandurang", "label": "JUDGE", "start_char": 26425, "end_char": 26434, "source": "ner", "metadata": {"in_sentence": "We do not consider this to be such a case ..\n\nIt was next contended on the authority of Pandurang, Tukia\n\n0 and Bhillia v. The State Hyderabad(') that as the two learned Judges have differed, the extreme penalty of the law should not be imposed."}}, {"text": "Tukia", "label": "JUDGE", "start_char": 26436, "end_char": 26441, "source": "ner", "metadata": {"in_sentence": "We do not consider this to be such a case ..\n\nIt was next contended on the authority of Pandurang, Tukia\n\n0 and Bhillia v. The State Hyderabad(') that as the two learned Judges have differed, the extreme penalty of the law should not be imposed."}}, {"text": "Bose", "label": "JUDGE", "start_char": 26753, "end_char": 26757, "source": "ner", "metadata": {"in_sentence": "Bose J, in reducing the sentence to imprisonment for life, observed : \"But E when appellate Judges, who agree on the question of guilt differ\n\non that of sentence, it is usual not to impose the death penalty unless there are compelling reasons\"."}}]}
{"document_id": "1965_2_782_799_EN", "year": 1965, "text": "PATNAIK & COMPANY\n\nSTATE OF ORISSA\n\nJanuary 19, 1965\n\n[P. B. GAJENDRAGADKAR, C. J., M. HIDAYATULLAH, J.C. SHAH, B\n\nS. M. SIICRI AND R. S. BACHAWA'f, JJ.J\n\nOrissa Sales Tax Act, ( 14 of 1941)-Contract to build bus bodies •n chassis supplied by purchaser-If a contract for sale or for work.\n\nThe appellant claimed to deduct from its gross turnover, amounts received from the State Government for buildiog bus bodies, on the chassia supplied by the Government under a contract.\n\nC Under the contract, the bus bodies were to be put on the chassis and the body consisted not only of things actually fixed .on the chassis but movable things like seat cushions and other !biogs which though fixed coold be easily detached, like roof-lamps etc. The chassis wi1h the bus body was to be delivered at the destination named within the stipulated tiine. If some work was not satisfactorily done the Government was entitled to seize the unfinished vehicle, get the work done by another D agency and recover the difference in cost from the appellant. While the appellant was required to protect the chassis by iosurance, there was no provision regardiog iosurance of bus bodies. The contract also provided that the process of manufacture was to be supervised on behalf of the Government, and that the work should be done with due deligence. There was also a provision for payment of damages until the defects detected on inspection were rectified.\n\nThe Sales Tax Officer refused to allow the deduction. On appeal, the E claim was allowed by the Collector, whose order was affirmed by the Sales Tax Tribunal, on appeal by the Department. On a reference to the High Court, the question, as to whether the amounts were not chargeable to sales tax, was answered against the appellant.\n\nIn the appeal to the Supreme Court, on the question as to whether the contract was one for execution of work or for performance of service, or whether it was a contract for sale of goods.\n\nF HELD : (Per Gajendragadkar C.J., Hidayatullah, Sikri and Bachawat, JJ) : The contract as a whole was a contract for the sale of goods and the amounts were therefore chargeable to sales tax. [792 G] The answer to the question depended on the construction of the agreement regarding the building of bus bodies. On the terms of the contract the property in the bus body did not pass on its being placed or constructed on the chassis but when the whole 'l\"'hicle iocluding the G bus body was delivered. The provision regarding insurance showed that till delivery was made, the bus bodies remained the property of the appellant and unlike the case of a contract a construct a building, where the property does not pass in the materials as movables the bus body never lost its character as movable property and the property in it passed to Government as movable property. It is not the law, that whenever a contract provides for the fixing of a chattel to another chattel there is no sale of goods; and, a contract for the sale of goods to be manu- H factured does not cease to be a contract for sale of goods, merel} because the process of manufacture is supervised by the purchaser. [785 C-D;\n\n788 F; 790 A-B; 791 A, D; 792 A] .\n\nPATNAIK & CO. V. STATE (Sikri, /.) 783\n\nA Gannon Dunkerley', Care, [1959) S.C.R. 379 and Carl Still v. State of Bihar, [1962) 2 S.C.R. 81, distinguished.\n\nAnglo-Egyptian Navigation Co. v. Rennie, (1875) L.R. 10 C.P. 271, explained.\n\nPer Shah, J. (dissenting) : The contract was one for work and not a contract for sale, because, the contract was not that the parties agreed that tho \"bus body\" constructed by the appellants should be sold to the B State. The contract was one in which the appellants agreed to construct \"bus bodies\" on the chassis supplied to them as liailees, and such a contract being one for work, the consideration paid was not taxable under the Sales Tax Act.\n\nThe primary difference between a contract for work or service and a contract for sale of goods is that in the former there is in the person performing work or rendering service no poperty in the thing produced C as a whole notwithstanding that a part or even the whole of the materials used by him may have been his property. In the case of a contract for sale the thing produced as a whole has individual existence as the sole property of the party who produced it, at some time before delivery, and the property therein passes only under the contract relating thereto to the\n\nother party for price. Mere transfer of property in goods used in the performance of a contract is not sufficient : to constitute a sale there must be- D llll agreement express or implied relating to sale of goods and completion of the agreement by passing of title in the very goods contracted to be sold.\n\nUltimately the true effect of an accretion made pursuant to a contract has to be judged, not by any artificial rule that the accretion may be presumed to have become by virtue of affixing to a chattel, part of that chattel, but from the intention of the parties to the contract. [793 D; 794\n\nA.C; 797 H; 798 A, CJ\n\nIn the instant case, imposition of the obligation to cJ.rry out the work with due diligence. the liability to pay damages and the right of the Government representative to supervise the production and to take away the unfinished vehicles and get them completed by some other agency are all indicative of the contract being one for work. [795 D-E, G; 796 D-E]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 179 to 181of1964.\n\nAppeals by special leave from the judgment and order dated August 21, 1962, of the Orissa High Court in 0.J.C. No. 28 of 1961.\n\nA. V. Viswanatha Sastri and R. Gopalakrishnan, for the appellants (in all the appeals).\n\nM. C. Setalvad, R. Ganapathy Iyer and R. N. Sachthey for the respondent (in all the appeals).\n\nThe Judgment of P. B. GAJENDRAGADKAR C.J., M. HIDAYAT- ULLAH, s. M. SIKRI and R. s. BACHAWAT JJ. was delivered by\n\nS!KRI J.\n\nSHAH J. delivered a dissenting Opinion.\n\nSikri, J. These three appeals by special leave are directed against the judgment of t!u: Orissa High Court in three references made by the Orisa Sales Tax Tribunal under s. 24(1) of the\n\n'\"784 SUl'lll!MB COUllT Rl!PORTS\n\n[1965] 2 S.C.R.\n\nOrissa Sales Tax Act, 1947, in respect of assessments for three quarters ending June 30, 1957, September 30, 1957 and Decem ··:ber 31, 1957. All these appeals raise a co=on. question of law .and it would be sufficient if facts relating to the assessment for the quarter ending June 30, 1957 alone are given, For the quarter ending June 30, 1957, the appellant, M/s Patnaik & Co., claimed to deduct from their gross turnover receipts totalling Rs. 11,268.45 received from the State Government of :Orissa for building bodies on the chassis supplied by the Govern- . .ment, during the quarter. The Sales Tax Officer refused to deduct this amount. On appeal, this claim was allowed by the Collector\n\nof Sales Tax, purporting to follow an earlier decision of the Orissa .. c .Sales Tax Tribunal. The Department appealed against tills order to the Sales Tax Tribunal which, by its order dated June 2, 1961, .affirmed the order of the Collector. The Tribunal, in brief, held . that it was impossible to spell out a distinct and separate contract to sell any materials or chattels to the customers in the work of construction of the bodies on the chassis. On the application of the Department, the Sales Tax Tribunal referred to the High ·, court the following question : \"Whether in the facts and circumstances of the case, the Tribunal is right in holding that the amounts received by the opposite party on the construction of bodies on chassis supplied by its customers under written contracts are not chargeable to the Orissa Sales Tax.\"\n\n\"The High Court, in a short order, folowing its decision in The\n\nComn; iissioner of Sales Tax Orissa v. Patnaik &: Co.(1} answered the question in the affirmative, i.e., against the appellant. In that case, the High Court had construed a similar contract and had come to the conclusion that \"the contract, therefore, as contemplated between the parties, is that the assessee was to deliver a specific goods, namely, a finished bus body built under the specifications prescribed by the Government for a fixed price.\n\nIt cannot, therefore. escape from the position that the transaction was one for sale of some goods within the meaning of the Act.\" It further observed that \"what exactly is the distinguishing feature of a sale from a works contract has been elaborately discussed in a case decided by this very Bench in S.J.C. No. 7 of 1959 (M/s.\n\nThakur Das Mulcharid v. The Commissioner of Sales Tax} .on 6th July 1961 .where it was held that a norm.il contract to make a ch::ttel ru_id deliver it whe11 made includes a contract of sale, but\n\n(1) S.J.C. No. 77 of 1959-Judgment delivered in the Orissa Hi&h Court on July 26, 1961.\n\nG -\n\nPATNAIK & CO. v. STATE (Sikri, J.) 785\n\nA it may not be always so.\n\nThe test would be whether the thirtg to be delivered has any individual existence before delivery as the wk property of the party who is to deliver it\". The High Court\n\ndistinguished Gannon Dunkerley's(') case on the ground that as far as the terms of the contract between the parties were concerned, they clearly contemplated a case of sale of goods liable to sales B tax under the Act, and it was not a works contract, as contended\n\nby the party.\n\nAs stated above, the appellant having obtained special leave, the appeal is now before us.\n\nMr. Viswanatha Sastri, the learned counsel for the appellant, has addressed an elaborate argument to us and contended that the C present case is not distinguishable from the decision of this Court in Gannon Dunkerley's(') case. He has cited a number of authorities in support of his contention, but it will not be necessary to rmew all these authorities as we feel that the answer to the question referred must depend on the construction of the agreement regarding the building of bus bodies. As laid down by this Court D in Chandra Bhan Gossain v. The State of Orissa( 2), \"was it the intention of the parties in making the contract that a chattel should be produced and transferred as a chattel for a consideration.\"\n\n'lbe agreement was entered into on April 20, 1957, between the appellant, called in the agreement \"the Body Builders\" and the State of Oriss, a. The State had accepted the quotations and decided to place orders for construction of 4 (four) numbers of Bus Bodies on the Chassis nam, ely 4 (four) numbers of 190\" Wheel Base F.F.C. Dodge/Fargo Chassis supplied by the Governor. The\n\nrelevant clauses are as below :\n\n\"l. (a) That the Body Builders shall be responsible for the safe custody of the chassis as described in Schedule 'A' from the date of the receipt of the Chassis from the Governor (Supplier) till their delivery to the Governor and shall insure their premises against fire, theft, damage and riot at their cost, so that these chassis are covered by insurance against such risks.\n\n(b) That while the works are in course of construction and until the Bus with Bodies built are taken over by the Governor, the Body Builder shall be responsible for the cb, assis and materials supplied to them an4 shall inde- H mnify the Governor for any loss or damage to the 11aid material.\n\n(I) [19'9) S.C.R. 379.\n\n(2) 14 S.T.C. 766.\n\n7116 SUPUMB COUllT REPORTS\n\n(1965] 2 S.C.R.\n\n{c) The completed Bus Bodies covered by this contract shall be delivered to the Governor on or before the 28th May 1957 for two and 20th June 1957 for the remaining two buses.\n\n2. That the passenger Bus Bodies shall be constructed on the chassis in the most substantial and workmanlike wanner, both as regards materials and otherwise in every respect in strict accordance with the specifications mentioned in Schedule 'B'.\n\n3 .. That if any additional work is considered necessary by the Transport Controller, Orissa (hereinafter called the 'Controller') for which no rate is specified in the contract, the Body Builder will immediately inform the Controller, in writing the rate which they intend to charge for such additional work. If the Controller does not agree to the rates the Body Builder will not be under any obligation to carry out such additional work.'\n\nProvided that the Body Builder will not be entitled to any payment for any additional work unless they have received an order in writing from the Controller to that effect.\n\n4. That the Body Builder will give a guarantee regarding the durability of the Body for a period of two years from the date of delivery to the Governor and if any imperfection or defective material became apparent within the guaranteed period the Body Builder shall rectify the defects at their own expenses.\n\n5. That the time allowed for carrying out the work as entered in the contract _shall be strictly observed by the Body Builder and shall be reckoned from the date of supply of Chassis to them. The work shall throughout the stipulated period of the contract be carried on with all due diligence time being deemed to be of the essence of the contract and the Body Builder shall be liable to pay to the Governor as linquidated damages an amount equal to 50% on the amount of the estimated cost of the whole work as shown in the contract for every day that the work remains unfinished after the date fixed and the Governor may deduct such sum or sums from any money dueJo the Body Builders under these presents or may recover it otherwise.\n\nPATNAIK & CO. v. STATE (Sikri, /.)\n\nProvided that the work will not be considered as finished until the defects detected on inspection as provided by clause 6, are rectified, to the satisfaction of the Controller.\n\n6. That all works under or in course of execution or executed in pursuance of this contract shall at all times be open to inspection by the Controller or officers authorised by him in this behalf and they shall have the right to stop by a written order any work which in the opinion of the Controller, is deemed to have been executed with unsound, imperfect, unskilful or bad workmanship or with materials of inferior quality. The Body Builder on receipt of such written order, shall dismantle or replace such defective work or material at their own cost. In the event of failure to comply with the order within 7 days from the date of receipt of the order, the Controller shall be free to get the balance of the work done by any other agency and recover the difference in cost from the Body Builder.\n\nProvided that for this purpose the Controller shall be at liberty to enter upon the premises of the Body Builder and take delivery of the unfinished bodies.\n\n7. That the Body Builder shall be paid 50% of the cost of body building at the time of delivery and the rest one month thereafter.\n\n8. That the Body Builder will deliver the vehicles complete with bodies at the destination or the destinations\n\nto be named by the Controller at their own cost and risk -- and shall be entitled to recover from the Governor the actual cost of transport by road or rail, transit insurance charges if any and other necessary incidental charges.\"\n\nSchedule 'B' gives the various specifications for construction of G composite bus bodies. Clause 9 of the Schedule provides the\n\nspecifications of seat cushions for the upper class and lower class seats. Clause 11 provides for the fixing of two roof lamps and its necessary switches. Clause 14 provides for the fixing of luggage carrier on the top of the roof and an iron ladder up to luggage carll rier at the rear. Various miscellaneous fittings are required to be fitted by clause 16, e.g., hand operated driver's traffic signal, nickel plated conductor's bell, wind screen wipers for the wind screen, tool box, box for First Aid equipment, etc.\n\nSUPREME COURT REPORTS\n\n(1965] 2 S.C.R.\n\nThen, looking at the contract as a whole, what wa.~ the real A intention of the parties ? It will be noticed that the bus bodies are throughout the contract spoken of as a unit or as a composite thing to be put on the chassi~, and this composite body consists not only of things actually fixed on the chassis but movable things like seat cushions, and other things though fixed but which can be very easily detached, e.g., roof lamps, wind screen wipers, luggage B carrier, tool box, box for First Aid equipment, etc.\n\nThe next point to be noticed is that under the contract the property in the bus body does not pass to the Government till the chassis with the bus body is delivered at the destination or destinations to be named by the Controller except in the case contemplated in C clause 6 of the agreement. That clause provides that if some wort is not satisfactorily done and the Body Builder on receipt of a written order does not dismantle or replace such defective work or material at his own cost within seven days, the Controller would be entitled to get the balance of the work done by another agency and recover the difference in cost from the Body Builder. The D Controller is entitled for this purpose to take delivery of the unfinished body. But even in this case the property in the unfinished body would not pass to the Government till the unfinished body is seized.\n\nSuppose a fire were to take place on the premises of the appel- E !ant and before delivery the bus bodies were destroyed or spoilt.\n\nOn whom would the loss fall ? There can only be one answer to this question and that is that the loss would fall on the appellant.\n\nClause 1 of the agreement provides for insurance of the chassis but there is no provision regarding insurance of bus bodies. Therefore, it follows that till delivery is made, the bus bodies remain the F property of the appellant. It could, if it chose to do so, replace parts or whole of the body at any time before delivery. It seems to us that this is an important indication of the intention of the parties. If the property passes at delivery, what does the property pass in ? Is it movable property or immovable. property ? It will •ot be denied that the property passes in mova.ble property. Then G was this the very goods contracted for ? Here again the answer is plainly in the affirmative.\n\nMr. Sastri draws our attention to the following passage in Benjamin On Sales (8th Edition), p. 167:\n\n\"Where a contract is made to furnish a machine. or movable thing of any kind and before the property in it passes, to fix it to land or to another chattel, it is not a\n\nPATNAII: a: CO. v. STATJ! (Sikri, /.) 78&\n\nA contract for the sale of goods. In such contracts the intention is plainly not to make a sale of movables as such, but to improve the lan4 or other chattel, as the case may be. The consideration to be paid to the workman is not for a transfer of chattel, but for work and labour done and materials furnished.\"\n\nHe says that here the bus body is being fitted to a chassis, i.e., another chattel, and if this passage lays down the law correctlyand according to him it does-the present contract is not a contract for the sale of goods.\n\nThe only. case cited in the footnote relating to fixing of a C chattel to another chattle is Anglo-Egyptian Navigation Co. v.\n\nRennie('). That case would be relevant if the question in this case was whether property in the materials used in the construction of the body passed to the Government plank by plank, or nail by nail. The answer would be in the negative, according to the above decision. But we are not concerned with this question here. The D facts in that case may be conveniently taken from the headnote.\n\nThe defendants contracted with the plaintiff to make and supply new boilers and certain new machinery for a steamship of the plaintiffs and to alter the engines of such steamship with corµpound surface condensing engines according to a specification.\n\nThe E specification contained elaborate provisions as to the fitting and fixing of new boilers and machinery on board the ship and the adaptation of the old machinery to the new. The boilers and other\n\nnew machinery contracted for were completed, and ready to be fixed on board, and one instalment of £ 2000 had been paid under the contract, when the ship was lost by perils of the sea. A second r instalment of £ 2000 was subsequently paid. The plaintiffs claimed delivery of the boilers and other machinery completed under the contract, and this being refused, brought an action for the detention of the same, or to recover back the £ 4000 paid by them to the defendants. It was fient that the contract was an entire and indivisible contract for work to be done upon the plaintiffs' ship G for a certain price, from further performance of which both parties\n\nwere released by the loss of the ship; that the property in the articles manufactured was not intended to pass until. they were fixed on board the ship; and that consequently the plaintiffs\n\nwere t entitled to tlie boilers and machinery, nor could they recovet the £4000 .already paid as upon a failure of considera- H tion. Here the question was whether according to the contract, the property in each portion certified by-the inspector as properly\n\n(1875] L.R. 10 C.P. 271.\n\n790 SUPRJ!MB COtlllT llBPOllTS [196S] 2 S.C.Jl.\n\ndone passed to the plaintiffs as and when his certificate was given.\n\nA This question was answered in the negative. This case is no authority for the proposition that whenever a contract provides for the fixing of a chattel to another chattel, there is no sale of goods.\n\nA few simple illustrations will show that this cannot be the Jaw. A wants new motor tyres. He goes to a dealer and asks that these may be supplied fitted on the car. Is there a sale of motor iyres B or not ? It is not an easy operation to fix new tyres; it needs an expert hand. But it will not be denied that it was in essence a contract for sale of goods. Take another illustration. A wants a luggage carrier to be fixed to his car. The carrier which B has needs to be altered a little. The contract is that he will alter it C and fix it Jo the car. Has there been a sale of the luggage carrier or not ? The answer obviously is 'yes'.\n\nMr. Sastri further relies on a passage in Gannon Dunker- ./ey's(') case, at pp. 413-414 :-\n\n\"It is of the essence of this concept that both the agreement and the sale should relate to the same subject-matter. Where the goods delivered under the contract are not the goods contracted for, the purchaser has got a right to reject them, or to accept them and claim damages for breach of warranty. Under the law, therefore, there cannot be an agreement relating to one kind of p_roperty and a sale as regards another. We are accordingly of opinion that on the true interpretation of the\n\nexpression \"sale of goods\" there must be an agreement between the parties for the sale of the very goods in which eventually property passess. In a building contract, the agreement between th~ parties is that the contractor should construct a building according to the specifications contained in the agreement, and in consideration therefor receive payment as provided therein, and as will presently be sthcre is in such an agreement neither a contract to sell the materials used in the construction, nor does property pass therein as movables.\n\nIt is therefore impossible to maintain that there is implicit in a building contract a sale of materials as understood in law.\"\n\nWe are, however, unable to appreciate how this passage assiits\n\nthe appellant. In this case both the agreement and sale relate to H one kind of property, namely, the bus body. The case of a con-\n\n(1) (1959] S.C.R. 379.\n\nPATNAIK & CO. V. STATE (Shah, !.) 791\n\nA tract to construct a building is quite different and, as held by this Court, the property there does not pass in the materials as movables; but under this contract the bus body never loses its character as movable property, and the property in the bus body passes to the Government as movable property. The following extract from the judgment in Dunkerley's case brings out the fact that the B title in a case of building contract passes to the owner as an accretion thereto :\n\n\"That exception does not apply to buildings which are constructed in execution of a works contract, and the law with reference to them is that the title to the same C passes to the owner of the land as an accretion thereto.\n\nAccordingly, there can be no question of title to the materials passing as movables in favour of the other party to the contract.\"\n\nAs we have already said, it is clear on the terms of the contract 0 in this case that the property in the bus body does not pass on its being placed or constructed on the chassis but when the whole vehicle including the bus body is delivered.\n\nMr. Sastri then relied on the decision of this Court in Carl Still v. Th~ State of Bihar('). That case does not apply to the facts of this case because this Court came to the conclusion on a con- E struction of the agreement in that case that the contract there was entire and indivisible for the construction of specified works including buildings for a lumpsum and not a contract of sale of materials as such.\n\nMr. Sastri then says that clause 3 is inconsistent with an agree- F ment for sale of goods. .This clause provides for additional work to be done for which no rate is specified in the contract. The clause, according to us, merely provides for extra payment if the Controller decided to order some additional things to be placed in the body. This is a neutral clause equally applicable to a contract for sale of goods or a contract for work and labour.\n\nG Mr. Sastri then points to clauses 5 and 6 and submits that these are totally inconsistent with an agreement for the sale of goods.\n\nBut we are unable to assent to this. Clause 5 provides for a time schedule and ensures that the delivery of the bus body shall take place within the stipulated time.\n\nClause 6 is designed to avoid R disputes in the future as to the quality of the material used and ensures that proper material is used. A contract for the sale f\n\n(1) [1962) 2 S.C.R. 81.\n\nIASup/65__.\n\nSUPRJ!ID OOUllT ll!PORTS\n\n(1965] 2 S.C.L\n\ngoods to be manufactured does not cease to be a contract for sale A of goods merely because the process of manufacture is supervised by the purchaser.\n\nFor example, if in a contract for the manufacture and sale of military aircraft, a great deal of supervision ia insisted upon by the purchaser, the contract would not become a contract for works and Jabour.\n\nB We may now notice some of the Indian cases in which a simi~ Jar point arose. In Commissioner of Sales Tax, U.P. v. Haji Abdul Majid('), the Allahabad High Court ilrrived at the conclusion that in the circumstances of the case the transaction was a contract for the sale of bqs bodies and not a contract for work and Jabour. Desai, C C.J., rightly pointed out at p. 443 that \"since it makes no difference whether an article is a ready-made article or is prepared according to the eutomer's specification, it should also make no difference whether the assessee prepares it separately from the thing and then fixes it on it or does the preparation and the fixation simultaneously in one operation.\" D In Jiwan Singh v. State of Punjab(') the High Court of Punjab also held that a contract by a firm for fitting and building motor bodies with its own materials on the chassis supplied bj 'customers is a contract for the sale of goods.\n\nIn Kai/ash Engineering Co. v. The State of Gujarat(\"), it was E held that the contract in that case for building, erecting and furnishing of third class timber coach bodies on broad gauge underframes to be supplied by the Railway administration was not a contract for the sale of goods. The same conclusion was reached in Kays Construction Company v. The Judge (Appeals) Sales Tax, Allahabad(') . We do not propose to say whether these cases were F correctly dedded on the facts for, as we have said in the beginning, in each case it is a question of intention of the parties.\n\nTo conclude, we have come to the finding th.at the contract as a whole is a contract for the sale of goods.\n\nAgreeing with the High Court, we hold that the answer to the question referred is G against the appellant.\n\nThe appeal accordingly fails and is dismissed with costs.\n\nIn the 9ther two appeals relating to assessments for the quarters ending September 30, 1957 and December 31, 1957, the agreements are similar and these also fail and are dismissed with costs. There will be one set of hearing fee in all the three appeals.\n\n(I) 148.T.C. 435.\n\n(3) 1' S.T.C. 574.\n\n(2) 14 S.T.C. 951.\n\n(4) 13 S.T.C. 302.\n\nPATNAIK & CO. V. STATE (Shah, /,) 793\n\nSllllJa J. Whether a contract is one for execution of work or for performance of service, or is a contract for sale of goods must depend upon the intention of the parties gathered from the terms of the contract viewed in the light of surrounding circumstances.\n\nIf the contract is one for work or for performance of service, the mere circumstance that the party doing the work or performing B the service uses goods or materials belonging to him in the execution of the contract will not be of any importance in determining whether the contract is one for sale of goods.\n\nIt is common ground that under the scheme of the Sales Tax Acts enacted by State Legislatures, if in its true nature the contract is one for per- C formance of service or for work, consideration paid is not taxable, for the States have authority under the Constitution by Sch. VII to legislate on the topics of tax on sale or purchase of goods (other than newspapers) and have no power to tax remuneration received under contracts for work or service.\n\nThe primary difference between a contract for work or service and a contract for sale of D goods is that in the former there is in the person performing work or rendering service no property in the thing produced as a whole notwithstanding that a part or even the whole of the materials used by him may have been his property. In the case of a contract for sale, there is in the first instance a chattel which belongs exclusively to a party and under the contract property therein E passes for money consideration. As observed in Halsbury's Laws of England (Third Edition) Vol. 34, pp. 6-7, Para 3 :\n\n\"A contract of sale of goods must be distinguished from a contract for work and labour. The distinction is often a fine one. A contract of sale is a contract whose main object is the transfer \"of the property in, and the delivery of the possession of, a chattel as a chattel to the buyer. Where the main object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one for work and labour.\n\nThe test is whether or not the work and labour bestowed end in anything that can properly become the subject of sale; neither the ownership of the materials, nor the value of the skill and labour as compared with the value of the materials, is conclusiv~. although such matters may be taken into considei; ation in determining, in the circumstances of a particular case, whether the contract is in substance one for work and labour or one for the sale of a chattel.\"\n\nSUPRBMJ! COURT REPORTS\n\n\nTo constitute a sale there must therefore be an agreement and in A pedormance of the agreement property belonging to one party must stand transferred to the other party for money consideration. Mere transfer of property in goods used in the performance of a contract is, however, not sufficient : to constitute a sale there must be an agreement-express or implied-relating to sale of goods and completion of the agreement by passing of title in the B very goods contracted to be sold.\n\nIt is of the essence of the transaction that the agreement and sale should relate to the same subject-matter, i.e., the goods agreed to be sold and in which the property is transferred.\n\nTo determine the liability of the appellants to pay tax under the . Orissa Sales Tax Act on the consideration received by them under the terms of the contract, the true intention of the parties must be determined. The agreement which is the subject-matter\n\nof the dispute between the parties is executed on behalf of the Governor of Orissa and the appellants, for constructing \"bus D bodies\" on the chassis supplied by the Governor of Orissa. In the second paragraph of the preamble it is recited that the Governor had accepted the quotation and had decided to place orders for construction of \"bus bodies\" on the chassis supplied by the Governor at the rates specified therein. The third paragraph recites that the appellants had agreed to construct \"bus bodies\" E at the rate quoted and on the terms and conditions recited thin.\n\nThe agreement then proceeds to set out the conditions of the contract. By the first condition the appellants are made responsible for safe custody of the chassis from the date of receipt thereof from the Governor till delivery and are bound to insure their premises including the chassis against fire, theft, damage and F riot at their own cost. By that condition the appellants are made \"responsible for the chassis and materials supplied\" to them and have undertaken to indemnify the Governor for any loss or damage to the said material. The clause also provides that the completed \"bus bodies\" shall be delivered to the Governor on or before the dates specified in the agreement. By cl. 2 it is stipulated G that the \"bus bodies\" shall be constructed in the most substantial and workmanlike manner, both as regards materials and otherwise in every respect in strict accordance with the specifications in Sch. 'B' of the agreement.\n\nClause 3 provides for payment for additional work as may be directed by the Transport Controller H under an order in writing to that effect. By cl. 4 it is provided that the appellants shall guarantee the durability of the body for two years from the date of delivery and if any imperfection or\n\nPATNAIK & CO. v. STATE (Shah, /,)\n\n79 S\n\nA defective material becomes apparent within the period of guarantee the appellants shall rectify the defects at their own cost.\n\nThese four clauses do not indicate any clear intention as to the nature of the contract : they are consistent with the contract being one for sale of \"bus bodies\" belonging to the appellants as B well as to a contract for building bus bodies on chassis supplied.\n\nLiability imposed by the contract requiring the appellants to indemnify the Governor for loss or damage to the chassis supplied and liability to carry out the work in the most substantial and workmanlike manner and to guarantee durability of the bodies are consistent with the contract being one of sale or of work • and C service.\n\nClause 3 also does not indicate any definite intention.\n\nH the contract is one for sale of a \"bus body\", the agreement.to pay extra payment for additional work to be done thereon is' not also indicative of any definite intention. But by els. 5 & 6 of the contract a definite intention that the contract is one for work and D not sale is, in my judgment, indicated. By the fifth clause it is, inter alia, provided that the work shall throughout the stipulated period of the confract be carried out with all due diligence, time being deemed to be of the essence of the contract, and that the appellants shall be liable to pay ro the Governor as liquidated damages an amount equal to 50% of the estimated cost of the E whole work as shown in the contract f(!r every day that the work remains unfinished after the date fixed. In a contract for sale of goods such a covenant is unusual. If a party to a contract fails to carry out his part within the period . specified, unless the other party waives the breach the contract may be deemed to be broken.\n\nThe other party is ordinarily not concerned with the method or F manner of producing the chattel agreed to be sold, if the specifications relating thereto are otherwise complied with. Imposition of an obligation to carry out the work with due diligence is indicative of the contract being one for work. This inference is strengthened by the proviso to cl. 5 which imposes liability upon the appellants to pay damages until the defects detected on inspection are recti- G fied.\n\nBy the first part of cl. 6, all work under or in the course of execution or executed in pursuance of the contract shall at all times be open to inspection by the Controller or officers authorised by him in that behalf and that they shall have the right to stop by a written order any work which in the opinion of the Controller has been executed with unsound, imperfect, unskilful or bad work- H manship or with materials of inferior quality. The appellants on receipt of a written order are obliged to dismantle or replace such defective work or material at their own cost. If the appellants.\n\n796 SUPllBMll COUKT llBPORTS\n\n(1965) 2 S.C.R.\n\nfail to comply with the order within seven days from the date of A receipt of the order, the Controller is free to get the work remaining to be done by any other agency and is entitled to recover the difference in cost from the appellants, and for this purpose the Controller is at liberty to enter upon the premises of the appellants and take. delivery of the unfinished vehicles. It is clear from the terms of cl. 6 that throughout the process of construction the B appellants are under the supervision of the Controller, and it is -0pen to the Controller to stop any work which is in progress and to call upon the appellants to rectify the work by dismantling or replacing the defective work. If the appellants fail to carry out the order of the Controller it is open to the Controller to take possession of the unfinished work and get the same done through C any other agency and to recover the difference in cost from the appellants.\n\nThe Controller is also given liberty to enter upon the premises of the appellants and to take over the unfinished vehicles.\n\nA party agreeing to purchase goods of certain specifications or -description is entitled to insist that the specifications or the des- D\n\nciption shall be strictly carried out, but he has ordinarily no right to supervise the production of the goods. . Again the right which is conferred upon the Controller to take away the unfinished vehicles and to get them completed by some other agency is wholly inconsistent with the contract being one for purchasing an\n\narticle belonging to the appellants.\n\nWhat one may ask would :r. be the authority of the Controller under a contract of sale to take away unfinished vehicles from the person who owns them, have the work completed by another person and then to claim the right to recover the difference in cost ? Paragraph 7 deals with the right to recover the consideration agreed to be paid to the appellants and the time at which it is to be paid.\n\nParagraph 8 F deals with the place at wh.ich the completed vehicles with bodies built thereon are to be delivered and till the date of the delivery the risk is with the appellants. Paragi!aph 9 deals with the settlement of any dispute which may arise ; between the parties on any question relating to the meaning of the specifications and drawings or as to the quality of the workmanship or materials used in tht: G work. Paragraph 10 deals with the jurisdiction of courts in the event of a dispute between {be-parties. Paragraphs 7 to 10 are in their content neutral and may be consitent with the agreement being either one for sale or for work or service.\n\nSchedule 'B' consists of/, the specifications for construction of B the composite bodies. They set , oiri the designs and the specifica- • tions of the underframe and floor, frame-work, roof, penelling; 11ide .\n\nI . . .\n\nPATNAIK & CO. V. STATE (Shah, /.) 797\n\nA windows, doors, seats, driver's can, roof lamps, grab rails, window\n\nguard rails, wind screens, luggage carriers, finish and miscellaneous fittings.\n\nIt is true that the specifications contemplated that the appellants had to supply certain goods which are not fixed to the \"bus bodies\". There are also provisions for supply of additional\n\nequipment such as wind screen wipers, Jocking arrangements, B boxes for first aid equipment and complaint book. It is not, however, the case of the parties that the contract is a composite contract. It is part of a single contract that the \"bus body\" to be constructed has to conform to the specifications and in the manufacture of the completed bus body the equipment set out under the head 'miscellaneous fittings' and elsewhere has to be provided. c An elaborate argument was advanced before us by counsel for the State of Orissa suggesting that the \"bus bodies\" are separately built and are thereafter fixed to the chassis supplied by the State.\n\nThe argument, however, does not appear to be correct in view of els. 3, 4, 5, 6, 7, 8 & 9 of the specifications. Again the right D which is conferred by cl. 6 of the main agreement which enables\n\nthe Controller to take possession of the unfinished vehicles indicates that the bodies were to be built on the chassis supplied and they were not to be independently constructed.\n\nBut this has, in my view, no decisive bearing. The parties may contract that on the chassis supplied by the State a body shall be built. If the I: true intention of the parties is that a body is a chattel belonging to the builder and the property therein is to pass under a contract against price, it would be a contract for sale of the body notwithstanding the fact that it is built on the chassis.\n\nAnother question to which counsel devoted considerable argu- F ment was whether the maxim 'quicquid fixatur solo, solo cedif which is a rule of the common Jaw of England is applicable under the Indian system to accretions to movables. Under the English common law a house which is constructed being embedded in the land becomes an accretion to the land and (subject to a mass of exceptions in favour of tenants and in favour of trade fixtures) G belongs to the person to whom the land belongs. But that rule has not been accepted in India : Thakoor Chunder Poramanick v.\n\nRam Dhonde Bhuttacharji(') and Narayan Das Khettry v. latindra Nath Roy Chowdhury('). It is unnecessary to advert to the contention whether the rule applies to accretions to movables, for ultimately the true effect of an accretion made pursuant to a con- H tract has to be judged, not by any artificial rule that the accretion may be presumed to have become by virtue of affixing to a chattel\n\n(I) 6 Suth Weekly Reports 228\n\n(2) L. R. S4 I. A. 218\n\n.;. .;,\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n\npart of that chattel, but from the intention of the parties to the A JI contract. In each case the Court must ascertain what the inten - tion of the parties was when property in goods belonging to one person and affixed to the property of another person, passed to that other person. Whether pursuant to a contract, any moveables fixed to another moveable the property passes immediately to the person to whom the primary property belongs must depend upon B the intention of the parties.\n\nOne strong test to ascertain whether a given contract is for work or for sale of goods is to ascertain whether the thing produced as a whole had individual existence as the sole property of the party who produced it at some time before delivery, and the property therein passes only under the contract relating thereto to the other party for price. If the thing has no individual existence as the sole property of the party producing it, the contract will be one for work or for service.\n\nUnder condition 6 of the contract unfinished goods may be taken possession of by the Controller and appropriated to himself notwitltstanding the objections which the appellants may have to that course. If the chassis and the body were destroyed before delivery, as stipulated loss of the body would undoubtedly\n\nfall upon the appellants, for by cl. 1 of the agreement the appel- E !ants, are bound to indemnify the State of Orissa for any loss that may be suffered by the State. But this covenant is not decisive of the true nature of the contract.\n\nA bailee of goods under a works contract may undertake a more onerous liability than what is prescribed by s. 151 of the Contract Act : see s. 15 2 Contract Act. Undoubtedly before delivery of a complete chassis with ''bus F body\" under the terms of the contract the appellants have no right to claim the consideration agreed to be paid to them. If, because of the loss of the chassis and the \"bus body\" constructed by the appellants, the appellants are unable to deliver the vehicle, the liability to indemnify the State for loss of the chassis arises by express terms of the contract and their claim for recovery of the G value of the materials used or the consideration agreed to be paid would fail, because they have failed to carry out their part of the contract.\n\nIt is unnecessary to refer to the large number of authorities to which our attention was invited by counseL The question must H be decided on a true interpretation of the terms of the contract in the light of surrounding circumstances. If, on a review of all\n\nPATNAIIC It CO. V. STATE (Shah, /.) 799\n\nA the terms of the contract, it appears that the intention of the\n\nes was that the appellants were to sell \"bus bodies\" to the State of Orissa the contract would clearly be one for sale , and consideration paid would be taxable under the Orissa Sales Tait Act. If, however, the contract is one for securing a certain result namely the building of a body on the chassis supplied by the State B with the materials belonging to the appellants, the contract would be one for work done and not liable to sales tax.\n\nIn my view the present contract is one for work and not a contract for sale, because the contract is not that the parties agreed that the \"bus body\" constructed by the appe!Jants shall be C sold to the 'State of Orissa.\n\nThe contract is one in which the appellants agreed to construct \"bus bodies\" on the chasis supplied to them as bailees and such a contract being one for work, the consideration paid is not taxable under the Orissa Sales Tax Act.\n\nD In my view, therefore, the appeal should be allowed.\n\nORDER. BY COURT\n\nIn accordance with the opinion of the majority, these appeals are dismissed with costs. One hearing fee.", "total_entities": 72, "entities": [{"text": "PATNAIK & COMPANY", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "PATNAIK & COMPANY", "offset_not_found": false}}, {"text": "STATE OF ORISSA", "label": "RESPONDENT", "start_char": 19, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "STATE OF ORISSA", "offset_not_found": false}}, {"text": "January 19, 1965", "label": "DATE", "start_char": 36, "end_char": 52, "source": "ner", "metadata": {"in_sentence": "PATNAIK & COMPANY\n\nSTATE OF ORISSA\n\nJanuary 19, 1965\n\n[P. B. GAJENDRAGADKAR, C. J., M. HIDAYATULLAH, J.C. SHAH, B\n\nS. M. SIICRI AND R. S. BACHAWA'f, JJ.J\n\nOrissa Sales Tax Act, ( 14 of 1941)-Contract to build bus bodies •n chassis supplied by purchaser-If a contract for sale or for work."}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 55, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "P. B. GAJENDRAGADKAR", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, J", "label": "JUDGE", "start_char": 84, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH, J", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 103, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Orissa Sales Tax Act", "label": "STATUTE", "start_char": 155, "end_char": 175, "source": "regex", "metadata": {}}, {"text": "Supreme Court", "label": "COURT", "start_char": 1788, "end_char": 1801, "source": "ner", "metadata": {"in_sentence": "In the appeal to the Supreme Court, on the question as to whether the contract was one for execution of work or for performance of service, or whether it was a contract for sale of goods."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 1970, "end_char": 1984, "source": "ner", "metadata": {"in_sentence": "F HELD : (Per Gajendragadkar C.J., Hidayatullah, Sikri and Bachawat, JJ) : The contract as a whole was a contract for the sale of goods and the amounts were therefore chargeable to sales tax. [", "canonical_name": "P. B. GAJENDRAGADKAR"}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 1991, "end_char": 2003, "source": "ner", "metadata": {"in_sentence": "F HELD : (Per Gajendragadkar C.J., Hidayatullah, Sikri and Bachawat, JJ) : The contract as a whole was a contract for the sale of goods and the amounts were therefore chargeable to sales tax. [", "canonical_name": "M. HIDAYATULLAH, J"}}, {"text": "Sikri", "label": "JUDGE", "start_char": 2005, "end_char": 2010, "source": "ner", "metadata": {"in_sentence": "F HELD : (Per Gajendragadkar C.J., Hidayatullah, Sikri and Bachawat, JJ) : The contract as a whole was a contract for the sale of goods and the amounts were therefore chargeable to sales tax. ["}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 2015, "end_char": 2023, "source": "ner", "metadata": {"in_sentence": "F HELD : (Per Gajendragadkar C.J., Hidayatullah, Sikri and Bachawat, JJ) : The contract as a whole was a contract for the sale of goods and the amounts were therefore chargeable to sales tax. ["}}, {"text": "[1962) 2 S.C.R. 81", "label": "CASE_CITATION", "start_char": 3303, "end_char": 3321, "source": "regex", "metadata": {}}, {"text": "Shah", "label": "JUDGE", "start_char": 3421, "end_char": 3425, "source": "ner", "metadata": {"in_sentence": "Per Shah, J. (dissenting) : The contract was one for work and not a contract for sale, because, the contract was not that the parties agreed that tho \"bus body\" constructed by the appellants should be sold to the B State.", "canonical_name": "Shah"}}, {"text": "Orissa High Court", "label": "COURT", "start_char": 5579, "end_char": 5596, "source": "ner", "metadata": {"in_sentence": "Appeals by special leave from the judgment and order dated August 21, 1962, of the Orissa High Court in 0.J.C. No."}}, {"text": "A. V. Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 5624, "end_char": 5647, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri and R. Gopalakrishnan, for the appellants (in all the appeals)."}}, {"text": "R. Gopalakrishnan", "label": "LAWYER", "start_char": 5652, "end_char": 5669, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri and R. Gopalakrishnan, for the appellants (in all the appeals)."}}, {"text": "M. C. Setalvad", "label": "OTHER_PERSON", "start_char": 5713, "end_char": 5727, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, R. Ganapathy Iyer and R. N. Sachthey for the respondent (in all the appeals)."}}, {"text": "R. Ganapathy Iyer", "label": "LAWYER", "start_char": 5729, "end_char": 5746, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, R. Ganapathy Iyer and R. N. Sachthey for the respondent (in all the appeals)."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 5751, "end_char": 5765, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, R. Ganapathy Iyer and R. N. Sachthey for the respondent (in all the appeals)."}}, {"text": "M. HIDAYAT- ULLAH", "label": "JUDGE", "start_char": 5851, "end_char": 5868, "source": "ner", "metadata": {"in_sentence": "The Judgment of P. B. GAJENDRAGADKAR C.J., M. HIDAYAT- ULLAH, s. M. SIKRI and R. s. BACHAWAT JJ.", "canonical_name": "M. HIDAYATULLAH, J"}}, {"text": "s. M. SIKRI", "label": "JUDGE", "start_char": 5870, "end_char": 5881, "source": "ner", "metadata": {"in_sentence": "The Judgment of P. B. GAJENDRAGADKAR C.J., M. HIDAYAT- ULLAH, s. M. SIKRI and R. s. BACHAWAT JJ.", "canonical_name": "s. M. SIKRI"}}, {"text": "R. s. BACHAWAT", "label": "JUDGE", "start_char": 5886, "end_char": 5900, "source": "ner", "metadata": {"in_sentence": "The Judgment of P. B. GAJENDRAGADKAR C.J., M. HIDAYAT- ULLAH, s. M. SIKRI and R. s. BACHAWAT JJ."}}, {"text": "S!KRI", "label": "JUDGE", "start_char": 5923, "end_char": 5928, "source": "ner", "metadata": {"in_sentence": "was delivered by\n\nS!KRI J.\n\nSHAH J. delivered a dissenting Opinion."}}, {"text": "SHAH", "label": "JUDGE", "start_char": 5933, "end_char": 5937, "source": "ner", "metadata": {"in_sentence": "was delivered by\n\nS!KRI J.\n\nSHAH J. delivered a dissenting Opinion.", "canonical_name": "Shah"}}, {"text": "s. 24(1)", "label": "PROVISION", "start_char": 6144, "end_char": 6152, "source": "regex", "metadata": {"statute": null}}, {"text": "Orissa Sales Tax Act, 1947", "label": "STATUTE", "start_char": 6212, "end_char": 6238, "source": "regex", "metadata": {}}, {"text": "Patnaik & Co.", "label": "ORG", "start_char": 6577, "end_char": 6590, "source": "ner", "metadata": {"in_sentence": "question of law .and it would be sufficient if facts relating to the assessment for the quarter ending June 30, 1957 alone are given, For the quarter ending June 30, 1957, the appellant, M/s Patnaik & Co., claimed to deduct from their gross turnover receipts totalling Rs."}}, {"text": "Orissa", "label": "GPE", "start_char": 6708, "end_char": 6714, "source": "ner", "metadata": {"in_sentence": "11,268.45 received from the State Government of :Orissa for building bodies on the chassis supplied by the Govern- ."}}, {"text": "Sales Tax Tribunal", "label": "COURT", "start_char": 7054, "end_char": 7072, "source": "ner", "metadata": {"in_sentence": "The Department appealed against tills order to the Sales Tax Tribunal which, by its order dated June 2, 1961, .affirmed the order of the Collector."}}, {"text": "June 2, 1961", "label": "DATE", "start_char": 7099, "end_char": 7111, "source": "ner", "metadata": {"in_sentence": "The Department appealed against tills order to the Sales Tax Tribunal which, by its order dated June 2, 1961, .affirmed the order of the Collector."}}, {"text": "Gannon Dunkerley", "label": "OTHER_PERSON", "start_char": 9136, "end_char": 9152, "source": "ner", "metadata": {"in_sentence": "The High Court\n\ndistinguished Gannon Dunkerley's(') case on the ground that as far as the terms of the contract between the parties were concerned, they clearly contemplated a case of sale of goods liable to sales B tax under the Act, and it was not a works contract, as contended\n\nby the party.", "canonical_name": "Gannon Dunker- ./ey"}}, {"text": "Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 9499, "end_char": 9516, "source": "ner", "metadata": {"in_sentence": "Mr. Viswanatha Sastri, the learned counsel for the appellant, has addressed an elaborate argument to us and contended that the C present case is not distinguishable from the decision of this Court in Gannon Dunkerley's(') case."}}, {"text": "April 20, 1957", "label": "DATE", "start_char": 10250, "end_char": 10264, "source": "ner", "metadata": {"in_sentence": "'lbe agreement was entered into on April 20, 1957, between the appellant, called in the agreement \"the Body Builders\" and the State of Oriss, a. The State had accepted the quotations and decided to place orders for construction of 4 (four) numbers of Bus Bodies on the Chassis nam, ely 4 (four) numbers of 190\" Wheel Base F.F.C. Dodge/Fargo Chassis supplied by the Governor."}}, {"text": "State of Oriss", "label": "ORG", "start_char": 10341, "end_char": 10355, "source": "ner", "metadata": {"in_sentence": "'lbe agreement was entered into on April 20, 1957, between the appellant, called in the agreement \"the Body Builders\" and the State of Oriss, a. The State had accepted the quotations and decided to place orders for construction of 4 (four) numbers of Bus Bodies on the Chassis nam, ely 4 (four) numbers of 190\" Wheel Base F.F.C. Dodge/Fargo Chassis supplied by the Governor."}}, {"text": "clause 6", "label": "PROVISION", "start_char": 13626, "end_char": 13634, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 9", "label": "PROVISION", "start_char": 15217, "end_char": 15225, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 11", "label": "PROVISION", "start_char": 15331, "end_char": 15340, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 14", "label": "PROVISION", "start_char": 15411, "end_char": 15420, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 16", "label": "PROVISION", "start_char": 15604, "end_char": 15613, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 6", "label": "PROVISION", "start_char": 16603, "end_char": 16611, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 1", "label": "PROVISION", "start_char": 17469, "end_char": 17477, "source": "regex", "metadata": {"statute": null}}, {"text": "Sastri", "label": "OTHER_PERSON", "start_char": 18172, "end_char": 18178, "source": "ner", "metadata": {"in_sentence": "Mr. Sastri draws our attention to the following passage in Benjamin On Sales (8th Edition), p. 167:\n\n\"Where a contract is made to furnish a machine."}}, {"text": "Gannon Dunker- ./ey", "label": "OTHER_PERSON", "start_char": 22127, "end_char": 22146, "source": "ner", "metadata": {"in_sentence": "Mr. Sastri further relies on a passage in Gannon Dunker- ./ey's(') case, at pp.", "canonical_name": "Gannon Dunker- ./ey"}}, {"text": "Dunkerley", "label": "OTHER_PERSON", "start_char": 23952, "end_char": 23961, "source": "ner", "metadata": {"in_sentence": "The following extract from the judgment in Dunkerley's case brings out the fact that the B title in a case of building contract passes to the owner as an accretion thereto :\n\n\"That exception does not apply to buildings which are constructed in execution of a works contract, and the law with reference to them is that the title to the same C passes to the owner of the land as an accretion thereto."}}, {"text": "clause 3", "label": "PROVISION", "start_char": 25124, "end_char": 25132, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 5", "label": "PROVISION", "start_char": 25721, "end_char": 25729, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 6", "label": "PROVISION", "start_char": 25851, "end_char": 25859, "source": "regex", "metadata": {"statute": null}}, {"text": "[1962) 2 S.C.R. 81", "label": "CASE_CITATION", "start_char": 26018, "end_char": 26036, "source": "regex", "metadata": {}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 26596, "end_char": 26616, "source": "ner", "metadata": {"in_sentence": "In Commissioner of Sales Tax, U.P. v. Haji Abdul Majid('), the Allahabad High Court ilrrived at the conclusion that in the circumstances of the case the transaction was a contract for the sale of bqs bodies and not a contract for work and Jabour."}}, {"text": "Jabour. Desai", "label": "JUDGE", "start_char": 26772, "end_char": 26785, "source": "ner", "metadata": {"in_sentence": "In Commissioner of Sales Tax, U.P. v. Haji Abdul Majid('), the Allahabad High Court ilrrived at the conclusion that in the circumstances of the case the transaction was a contract for the sale of bqs bodies and not a contract for work and Jabour."}}, {"text": "High Court of Punjab", "label": "COURT", "start_char": 27195, "end_char": 27215, "source": "ner", "metadata": {"in_sentence": "D In Jiwan Singh v. State of Punjab(') the High Court of Punjab also held that a contract by a firm for fitting and building motor bodies with its own materials on the chassis supplied bj 'customers is a contract for the sale of goods."}}, {"text": "September 30, 1957", "label": "DATE", "start_char": 28316, "end_char": 28334, "source": "ner", "metadata": {"in_sentence": "In the 9ther two appeals relating to assessments for the quarters ending September 30, 1957 and December 31, 1957, the agreements are similar and these also fail and are dismissed with costs."}}, {"text": "December 31, 1957", "label": "DATE", "start_char": 28339, "end_char": 28356, "source": "ner", "metadata": {"in_sentence": "In the 9ther two appeals relating to assessments for the quarters ending September 30, 1957 and December 31, 1957, the agreements are similar and these also fail and are dismissed with costs."}}, {"text": "SllllJa", "label": "JUDGE", "start_char": 28617, "end_char": 28624, "source": "ner", "metadata": {"in_sentence": "V. STATE (Shah, /,) 793\n\nSllllJa J. Whether a contract is one for execution of work or for performance of service, or is a contract for sale of goods must depend upon the intention of the parties gathered from the terms of the contract viewed in the light of surrounding circumstances."}}, {"text": "Orissa Sales Tax Act", "label": "STATUTE", "start_char": 31921, "end_char": 31941, "source": "regex", "metadata": {}}, {"text": "cl. 2", "label": "PROVISION", "start_char": 33371, "end_char": 33376, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 3", "label": "PROVISION", "start_char": 33620, "end_char": 33628, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 4", "label": "PROVISION", "start_char": 33764, "end_char": 33769, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 3", "label": "PROVISION", "start_char": 34684, "end_char": 34692, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 5", "label": "PROVISION", "start_char": 36085, "end_char": 36090, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 6", "label": "PROVISION", "start_char": 36232, "end_char": 36237, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 6", "label": "PROVISION", "start_char": 37265, "end_char": 37270, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Orissa", "label": "GPE", "start_char": 40590, "end_char": 40605, "source": "ner", "metadata": {"in_sentence": "c An elaborate argument was advanced before us by counsel for the State of Orissa suggesting that the \"bus bodies\" are separately built and are thereafter fixed to the chassis supplied by the State."}}, {"text": "cl. 6", "label": "PROVISION", "start_char": 40877, "end_char": 40882, "source": "regex", "metadata": {"statute": null}}, {"text": "England", "label": "GPE", "start_char": 41663, "end_char": 41670, "source": "ner", "metadata": {"in_sentence": "Another question to which counsel devoted considerable argu- F ment was whether the maxim 'quicquid fixatur solo, solo cedif which is a rule of the common Jaw of England is applicable under the Indian system to accretions to movables."}}, {"text": "India", "label": "GPE", "start_char": 42034, "end_char": 42039, "source": "ner", "metadata": {"in_sentence": "But that rule has not been accepted in India : Thakoor Chunder Poramanick v.\n\nRam Dhonde Bhuttacharji(') and Narayan Das Khettry v. latindra Nath Roy Chowdhury(')."}}, {"text": "S4", "label": "PROVISION", "start_char": 42508, "end_char": 42510, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 1", "label": "PROVISION", "start_char": 43880, "end_char": 43885, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Orissa", "label": "ORG", "start_char": 43950, "end_char": 43965, "source": "ner", "metadata": {"in_sentence": "ants, are bound to indemnify the State of Orissa for any loss that may be suffered by the State."}}, {"text": "s. 151", "label": "PROVISION", "start_char": 44192, "end_char": 44198, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 44225, "end_char": 44230, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_2_800_804_EN", "year": 1965, "text": "RAJA SOAP FACTORY AND OTHERS\n\nS. P. SHANTIIARAl AND OTHERS\n\nJanuary 20, 1965\n\n[K.N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH\n\nAND S.M. S!KRI, JJ.J\n\nHigh Court of Mysore Act, 1962 (Mysore Act S of 1962)-Trade and Werchandise Marks Act, 1958 (Act 43 of 1958), 105-Code of Civil Procedure, 1908 (Act 5 of 1908), ss. 24, 151-High Court-- Passing off Action, institulion--Entertainability-Ezercise of original jurisdiction-Jurisdiction, Meaning of.\n\nThe respondents instituted a passing .cff action in the High Coun <>f Mysore for a declaration that they were exclusive own.ers of a certain trade mark and for a permanent injunction restraining the appellants from passing off their goods as that of respondents.\n\nBy s. 105 of , the Trade and Merchandire Mark Act such an action may be instituted in\n\nany court not inferior to a District Court having jurisdiction to try the suit, It appears that on the day the suit was instituted the District Court was closed and there was no Judge functioning in the District Court who was on duty and competent to exercise the powers of the District Court.\n\nThe High Court entertained the plaint and granted temporary injunctioa.\n\nIn appeal by special leave : HELD : ( i) The High Court of Mysore is by its constitution primarily a court exercising appellate jurisdiction; it is competent to exercise original jurisdiction only in those matters in respect of which by special Acts it has been specifically invested with jurisdiction.\n\nIt would be competent to exercise original jurisdiction under s. 105 of the Act if it was invested with ordinary original jurisdiction of a District Coun and not otherwise. [802 D-F] As a Court of appeal it undoubtedly stands at the apex within the State, but on that account it does not stand invested with original jurisdiction in matters not expressly declared within its cognizance. [802 HJ\n\n(ii) Power under s. 24 of the Code of Civil Procedure to try and dispose of a proceeding after transfer from a court lawfully seized of it does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court. [803 C-D]\n\n(iii) Section 151 of the Code of Civil Procedure preserves the inherent powers of the Court, but it does not authorise the High Court to invest itself with jurisdiction where the jurisdiction is not conferred by law. [803 D-E]\n\n(iv) By \"jurisdiction\" is meant the extent of the power which i1 conferred upon the court by its constitution to try a proceeding : ill exercise cannot be enlarged because an extraordinary situation \"requires,.\n\nthe court to exercise it. [803 H-804 A]\n\nCIVIL APPELLATE JURISDICION: Civil Appeal No. 771 of 1964.\n\nAppeal by special leave from the judgment and order dated May 29, 1964, of the Mysore High Court in Civil Petition No. 90 of 1964.\n\nS. S. Khanduja and Ganpat Rai, for the appellants.\n\nB. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for respondents Nos. 1 to 7.\n\nThe Judgment of the Court was delivered by\n\nSlulh J.\n\nOn May 5, 1964 the respondents-hereinafter called 'the plaintiffs'-instituted in the High Court of Mysore an action in the nature of a passing off action against the appellants-hereinafter called 'the defendants'-for a declaration that they \"are exclusive owners of the trade mark consisting of the letters R.S.F.\n\nC and No. 806\", for a permanent injunction restraining the defendants from passing off their washing soap as the goods of the plaintiffs and for incidental reliefs.\n\nBy s. 105 of the Trade and Merchandise Marks Act 43 of 1958 a passing off action whether the trade mark is registered or D unregistered may be instituted in any court not inferior to a District Court having jurisdiction to try the suit. It appears that on May 5, 1964 the District Court of Mysore, within the territorial limits of which the cause of action was alleged to have arisen, was closed for the summer vacation, and it is common ground that on that day E there was no Judge functioning in the District Court who was on duty and competent to exercise the powers of the District Court.\n\nAt the request of the plaintiffs the High Court entertained the plaint and also an application for interim injunction restraining \"the defendants their agents or servants from using the trade mark R.S.F. on washing soap manufactured by them and from selling r washing soap bearing the said offending mark pending disposal of the case.\" By order dated May 29, 1964 the High Court granted the temporary injunction in terms of the prayer in the application.\n\nIn this appeal with special leave, counsel for the defendants argues that the High Court had no jurisdiction to entertain the G action instituted by the plaintiffs and had no power to make an order issuing a temporary injunction. The action, as framed, could properly be instituted in the District Court. The expression \"District Court\" has by virtue of s. 2(e) of Act 43 of 1958 the meaning assigned to that expression in the Code of Civil Procedure,\n\n1908. Section 2(4) of the Code defines a \"district\" as meaning the ff local limits of the jurisdiction of a principal civil court-called the District Court-and includes the local limits of the ordinary original civil jurisdiction of a High Court. If therefore a High Court is\n\n802 SUPllBMB COURT REPORTS\n\n[1965) 2 S.C.R.\n\npossessed of ordinary original civil jurisdiction, it would, when A exercising that jurisdiction be included, for the purpose of Act 43 of 1958, in the expression \"District Court\".\n\nExercise of jurisdiction by the High Court of Mysore is governed by Mysore Act 5 of 1962. The Act is purely a regulatory Act enacted for regulating the business and exercise of the powers of B the High Court in relation to the administration of justice : it does not purport to confer upon the High Court any jurisdiction original or appellate. It is true that by s. 12 of the Mysore High Court Act 1 of 1884 enacted by the Maharaja of Mysore to amend the constitution of the High Court of Mysore, and to provide for the administration of justice by that Court, the Government of Mysore C was authorised by notification to invest the High Court with ordinary original civil jurisdiction of a District Court in all suits of a civil nature exercisable within such local limits as the Government may from time to time declare and appoint in that behalf. But s. 12 of the Mysore Act 1 of 1884 has been repealed by s. 14 of Mysore Act 5 of 1962.\n\nThe High Court of Mysore is by its constitution primarily a court exercising appellate jurisdiction : it is competent to exerc:ise original jurisdiction only in those matters in respect of which by special Acts it has been specifically invested with jurisdiction. The High Court is competent to exercise original jurisdiction under E s. 105 of the Trade and Merchandise Marks Act 43 of 1958 if it is invested with the ordinary original civil jurisdiction of a District Court, and not otherwise, and the High Court of Mysore not being invested by any statute or under its constitution with that jurisdiction was incompetent to entertain a passing off action.\n\nBut it was urged that in a State the High Court is at the a:PeX of the hierarchy of civil courts and has all the powers which the subordinate courts may exercise, and it is competent to entertain\n\nall actions as a court of original jurisdiction which may lie in any court in the State. For this exalted claim, there is no warrant in our jurisprudence.\n\nJurisdiction of a Court means the extent of the G authority of a Court to administer justice prescribed with reference to the subject-matter, pecuniary value and local limits.\n\nBarring cases in which jurisdiction is expressly conferred upon it by special statutes, e.g. the Companies Act; the Banking Companies Act, the High Court of Mysore exercises appellate jurisdiction alone. As a Court of Appeal it undoubtedly stands at the apex within the H State, but on that account it does not stand invested with original jurisdiction in matters not expressly declared within its cognizance.\n\nA Section 24 of the Code of Civil Procedure on which counsel for the plaintiffs relied lends no assistance to his argument. Among the powers conferred upon a High Court by s. 24 Code of Civil Procedure, there is enumerated the power to withdraw any suit, appeal or other proceeding in any Court subordinate to it, and to try or dispose of the same : [s. 24(1) (b) (i)]. But jurisdiction to try a B suit, appeal or proceeding by a High Court under the power reserved by s. 24(1) (b) (i) arises only if the suit, appeal or proceeding is properly instituted in a court subordinate to the High Court, and the suit, appeal or proceeding is in exercise of the power of the High Court transferred to it. Exercise of this jurisdiction is conditioned by the lawful institution of the proceeding in a sub- C ordinate court of competent jurisdiction, and transfer thereof to the High Court. Power to try and dispose of a proceeding after transfer from a court lawfully seized of it does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court.\n\nD Section 151 of the Code of Civil Procedure preserves the inherent power of the Court as may be necessary for the ends of justice or to prevent abuse of the process of the Court. That power may be exercised where there is a proceeding lawfully before the High Court : it does not however authorise the High Court to invest itself with jurisdiction where it is not conferred by law.\n\nReliance was sought to be placed upon the summary of a judgment dated June 6, 1962 in a case decided by N arayana Pai, J : Kaverappa v. Narayanaswamy, which is found printed under the heading \"Short Notes of Recent Decision\" in the Mysore Law Journal (1962) at p. 1. The learned Judge is reported to have F observed that s. 24 of the Code of Civil Procedure \"read along with s. 151 which preserves to the High Court all inherent powers to make such orders as may be necessary for ends of justice necessarily implies that whenever an extraordinary situation so requires, a High Court may confer original jurisdiction upon itself to do or protect ends of justice\". It does not appear that the judgment is G reported in any series of reports-authorised or unauthorised-, and we have not been supplied with a copy of the original judgment. But if the learned Judge, as reported in the summary of the judgment, was of the opinion that the High Court is competent to assume to itself jurisdiction which it does not otherwise possess, ll merely because an \"extraordinary situation\" has arisen, with respect to the learned Judge, we are unable to approve of that view. By \"j111'is9iction\" is meant the extent of the power which is conferred\n\nupon the Court by its constitution to tty a proceeding; its exerci!e\n\n804 SUPllBMB C:OtmT llBPOR.TS [196S] 2 S.c.L\n\ncannot be enlarged because what the learned Judge calls an extra- A ordinary situation \"requires\" the Court to exercise it\n\nThe appeal must therefore be allowed. Temporary injunction granted by the High Court is .vacated and the plaint is ordered to be returned for presentation to the proper Court.\n\nAs before the High Court, no objection was raised about the maintainability of B the suit or the application for injunction, we direct the parties to bear their own costs.\n\nAppeal allowed.", "total_entities": 53, "entities": [{"text": "RAJA SOAP FACTORY AND OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "RAJA SOAP FACTORY AND OTHERS", "offset_not_found": false}}, {"text": "S. P. SHANTIIARAl AND OTHERS", "label": "RESPONDENT", "start_char": 30, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "S. P. SHANTHARAJ AND OTHERS", "offset_not_found": false}}, {"text": "January 20, 1965", "label": "DATE", "start_char": 60, "end_char": 76, "source": "ner", "metadata": {"in_sentence": "RAJA SOAP FACTORY AND OTHERS\n\nS. P. SHANTIIARAl AND OTHERS\n\nJanuary 20, 1965\n\n[K.N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH\n\nAND S.M. S!KRI, JJ.J\n\nHigh Court of Mysore Act, 1962 (Mysore Act S of 1962)-Trade and Werchandise Marks Act, 1958 (Act 43 of 1958), 105-Code of Civil Procedure, 1908 (Act 5 of 1908), ss."}}, {"text": "K.N. WANCHOO", "label": "JUDGE", "start_char": 79, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, J", "label": "JUDGE", "start_char": 93, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "M. 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SHAH", "offset_not_found": false}}, {"text": "High Court of Mysore Act, 1962", "label": "STATUTE", "start_char": 143, "end_char": 173, "source": "regex", "metadata": {}}, {"text": "Trade and Werchandise Marks Act, 1958", "label": "STATUTE", "start_char": 197, "end_char": 234, "source": "regex", "metadata": {}}, {"text": "Code of Civil Procedure, 1908", "label": "STATUTE", "start_char": 257, "end_char": 286, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 24, 151", "label": "PROVISION", "start_char": 304, "end_char": 315, "source": "regex", "metadata": {"linked_statute_text": "Code of Civil Procedure, 1908", "statute": "Code of Civil Procedure, 1908"}}, {"text": "High Court-- Passing off Act", "label": "STATUTE", "start_char": 316, "end_char": 344, "source": "regex", "metadata": {}}, {"text": "s. 105", "label": "PROVISION", "start_char": 707, "end_char": 713, "source": "regex", "metadata": {"linked_statute_text": "High Court-- Passing off Act", "statute": "High Court-- Passing off Act"}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 1204, "end_char": 1224, "source": "ner", "metadata": {"in_sentence": "In appeal by special leave : HELD : ( i) The High Court of Mysore is by its constitution primarily a court exercising appellate jurisdiction; it is competent to exercise original jurisdiction only in those matters in respect of which by special Acts it has been specifically invested with jurisdiction."}}, {"text": "s. 105", "label": "PROVISION", "start_char": 1525, "end_char": 1531, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 1876, "end_char": 1881, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 1885, "end_char": 1912, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 151", "label": "PROVISION", "start_char": 2130, "end_char": 2141, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 2145, "end_char": 2172, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 2744, "end_char": 2761, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated May 29, 1964, of the Mysore High Court in Civil Petition No."}}, {"text": "Ganpat Rai", "label": "LAWYER", "start_char": 2816, "end_char": 2826, "source": "ner", "metadata": {"in_sentence": "S. 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{"document_id": "1965_2_805_810_EN", "year": 1965, "text": "STATE OF RAJASTHAN AND OTHERS\n\nGHASILAL\n\nJanuary 21, 1965\n\n[K. N. WANCHOO, M. HIDAYATULLAH, J.C. S~.\n\nJ. R. MUDHOLKAR AND S. M. SIKRI JJ.]\n\nRa; asthan Sales Tax Act, 1955, ss. 7(2), 16(1)(b) and Raiasthan Sale~ Tax Rules, r. 31-Scope of.\n\nOn a petition of the assessee challenging the validity of Rajasthan Sales Tax Rules, the High Court passed an interim order that the assessee C would keep proper accounts and file the prescribed returns, but that he should not be assessed till further orders.\n\nWhile the petition was pending an ordinance was promulgated validating the rules, and the assessee withdrew the petition.\n\nThe sales tax officer sent a show cause\n\nnotic~ and the assessee filed the return ao<I deposited tai.\n\nThe Sales Tax Officer assessed tax and imposed a penalty under s. 16(1)(b) of the Act and justified and imposition on the ground that the High Court\n\nD did not say that the assessee was allowed to withhold the tax, but that on the contrary the order of the High Court showed that the assessee should have filed returns in time and according to s. 7(2) of the Act the Treasury challan of the deposit should have accompanied them. TM ruisessee's appeal to the Deputy Commissioner of Sales Tax (Appeals) was dismissed.\n\nThe Sales-tax Officer, for a subsequent period, imposed another penalty on the same grounds.\n\nThe assessee filed two writ petitions in the High Court which were allowed. In appeal E HELD: (i) There had been no breach of s. 16(l)(b) of the Act,\n\nand consequently the orders imposing the penalties could not be sustained. [809 H] Till the tax payable was ascertained by the assessing authority under s. 10, or by the assessee under s. 7(2), no tax could be said to be due withins. 16(1)(b) of the Act, for, till then there was only a liability to be assessed to tax. [810 B.(;]\n\nRule 31 of the Rajasthao Sales Tax Rules comes into the picture only when an assessment has been completed. [81 () D]\n\n(ii) Section 7(2) of the Act could not be attracted till the assessee filed the returns. [810 F] CML APPELLATE JURISDICTION: Civil Appeals Nos. 408-409 of 1964.\n\nAppeal by special leave from the judgment and order dated.\n\nFebruary 5, 1963 of the Rajasthan High Court in D.B. Civil Writ Petitions Nos. 172 and 111 of 1961.\n\nG. C. Kasliwal, Advocate-General, for the State of Ra; asthan, K. K. Jain and R. N. Sachthey, for the appellant.\n\nR. K. Garg, S. C. Agarwala, D. P. Singh and M. K. Rtul'Ur murthi, for the respondent.\n\nI I\n\nSUPREME COURT REPORTS\n\n[ 1965( 2 S.C.R.\n\nThe Judgment of the Court was delivered by\n\nSikri, J. These two appeals by special leave are directed against the judgment of the Rajasthan High Court allowing Civil Writ Petitions Nos. 111 and 172 of 1961, and quashing orders\n\nof the Sales Tax authorities imposing penalties on the respondent, Ghasilal, for delay in payment of tax due. The High Court came B to the conclusion that the penalties had been imposed in violation of Art. 20(1) of the Constitution, but it is not necessary to deal with this question because we are inclined to accept the contention raised by the learned counsel for the respondent, Mr. Garg, that the penalties have been imposed in violation of the relevant statutory provisions.\n\nC The relevant facts are these. On March 28, 1955, Rajasthan Sales Tax Rules (hereinafter referred to as the Rules) were published in the Rajasthan 'Gazette.\n\nThe Rajasthan Sales Tax Act (hereinafter referred to as the Act) came into force on April 1,\n\n1955. The respondent filed Civil Writ Petition, No. 11 of 1958, D in the High Court challenging the making of assessments on the turnover of the respondent for the year 1955-56 on the ground that the said Rules were invalid. On January 9, 1958, the High Coµrt passed an interim order that 'the petitioner will keep proper accounts and file the prescribed returns but he shall not be assessed till further orders'. While the petition was pending in the High E Court, an Ordinance (No. 5 of 1959) was promulgated on November 6, 19 5 9, validating the Rules.\n\nThereupon the respondent withdrew Writ Petition No. 11of1958. On December 17, 1959 the Rajasthan Sales Tax Validation Act (Rajasthan Act 43 of\n\n1959) replaced the Ordinance. It is common ground that the effect of the said Ordinance and the said Act was to validate the F Rules, even if any defect existed in the making of the Rules. We may mention that according to the appellant, the said Ordinance and the said Validating Act were enacted out of abundant caution.\n\nOn December 4, 1959, the Sales Tax Officer, Kotah City Circle, sent a show cause notice to the respondent in the following words: G \"Your writ No. 11 has been dismissed by the Hon'ble High Court on 23rd November,.1959. You are, therefore, requested to deposit the tax due upto date within a week, ailing which necessary action according to law will be taken.\"\n\nThis notice was served on the respondent tlle same day. The respondent filed a return for the 4th quarter ending October 22, 1957,\n\nSTATE v. OHASILAL (Sikri, /.) 807\n\nA and Rs. 11,898.31 was deposited as tax. It appears that on January 8, 1960, March 5, 1960 and March 19, 1960, he deposited Rs. 28,607 as tax in respect of the four quarters of the accounting period October 23, 1957 to November 10, 1958. It is not clear from the record whether he filed returns on these dates. On April 25, 1960, the Sales Tax Officer made an assessment in res- B pect of the accounting period November 3, 1956-to October 22, 1957, and proceeded to impose a penalty of Rs. 400 under s. 16(l)(b) of the Rajasthan Sales Tax Act. He justified the imposition of penalty thus :\n\n\"The assessee has not deposited tax of the quarters on the due date, the tax deposited for 4th quarter is very late, i.e . ., after two years the assessee was given a notice and in reply to which he referred the stay order of the Hon'ble High Court granted to him in a writ petition filed challenging the validity of sales tax rules made under the Act, the stay order of the Hon'ble High Court does not say that the assessee is allowed to withhold the tax on the contrary, it directs that the petitioner\n\n(assessee) will keep proper accounts and file prescribed returns but shall not be assessed.\n\nThis clearly shows that the assessee should have filed returns in time and according to section 7(2) the Treasury challan of the deposit should have accompanied them. This amounts to contravention of the mandatory provisions, the writ was dismissed on 23-4-58 sic (23-11-59), even the amount was not deposited till 17-12-59.\n\nThis shows that the assessee withheld the tax intentionally.\"\n\nThe respondent appealed to Deputy Commissioner Sales Tax (Appeals), Kotah, who dismissed the appeal, holding that the stay order of the High Court did not jutify the respondent in not filing the return and depositing the tax in accordance with s. 7(2) of the Rajasthan Sales Tax Act.\n\nG On December 6, 1960, the Sales Tax Officer assessed the respondent in respect of the accounting period October 23, 1957 to November 10, 1958, and imposed a penalty of Rs. 1,000 for not depositing the tax in time on the same grounds.\n\nThe respondent then filed a petition (No. 111 of 1961) under Art. 226 of the Constitution, on April 3, 1961, challenging the imposition H of penalty in respect of the period November 3, 1956 to October\n\n22, 1957, and on April 4, 1961, he filed a petition (No. 172 of\n\n1961) challenging the imposition of penalty in respect of the IASup.65-S\n\n808 SUPRBMB COUllT lU!PORTS\n\n(1965] 2 S.C.R. , .accounting period October 23, 1957 to November 10, 1958. As A we have said before, the High Court allowed the petitions.\n\nThe learned Advocate-General has raised a number of points before us and particularly invited us to hold that the High Court was in error in holding that there has been contravention of Art.\n\n.20(1) of the Constitution, and that the Rules as originally pub-· B lished on March 28, 1955, suffered from no procedural defect in the matter of their promulgation and duly came into force on April l, 1955. But we express no opinion one way or the other on these points as the appeals can be disposed of on a narrow point of the construction of the Act.\n\nThe relevant provisions qf the Act read thus :\n\n\"s. 7(1) Every dealer liable to pay tax shall furnish returns of his turnover for the prescribed periods in the prescribed form, in the prescribed manner and within the prescribed time, to the assessing authority.\n\nProvided that the assessing authority may extend the date for the submission of such returns by any dealer or class of dealers by a period not exceeding fifteen days in the aggregate.\n\n(2) Every such return shall be accompanied by a Treasury receipt or teceipt of any bank authorised to receive money on behalf of the State Government showing the deposit of the full amount of tax due on the basis of return in the Government Treasury or bank concerned.\n\n(3) H any dealer discovers any omission, error, or wrong statement in any returns furnished by him under sub-section (1), he may furnish a revised return in the prescribed manner before the time prescribed for the submission of the next return but not later.\n\n(4) Every deposit of tax made under sub-secon (2) shall be deemed to be provisional subject to necessary adjustments in pursuance of the final assessment of tax made for any year under section 10.\n\nS. 16(1)-Il any personc\n\n(a) has without reasonable cause failed to get him- H self registered as required by sub-section (1) of section 6 within the time prescribed; or\n\n'STATB v. OHASILAL (Sikri, /.) 809\n\nA {b) has without reasonable cause failed to pay the -\n\ntax due within the time allowed; or\n\n(c) has without reasonable cause failed to furnish the return of his turnover, or failed to furnish it within the time allowed; or\n\nthe assessing authority may direct that such person shall pay by way of penalty, in the case referred to in clause (a) in addition to the fee payable by him, a sum not exceeding Rs. 50 and in case referred to in clause (b ), in addition to the amount payable by him, a sum not exceeding ltal:f of that amount, and that in cases referred to in clauses (c) and (d), in addition to the tax payable by him, a sum not exceeding half the amount of tax determined; in the case referred to in clause (e), in addition to the tax payable by him a sum not exceeding double the amount of tax, if any which would have been avoided if taxable turnover as returned by sucli person had been accepted as correct turnover, and in the cases referred to in clauses (f), (ff) and (g), a sum not exceeding Rs. 100.\" Mr. Garg contends that there was no breach of s. 16(l)(b) of the Act. No tax was due till the respondent filed returns under s. 7(1) of the Act Section 7(2), which requires a deposit of the full amount due on the basis of the return was compiled with when the respondent filed the returns, on December 18, 1959, and in January to March, 1960. There cannot be non-compliance F of s. 7(2) unless a return is filed without depositing the tax due on the basis of the return, and as no return was filed earlier than pecember 18,-1959, there had been no violation of the requirements of s. 7(2). He further contends that no tax is due till assessment is made under s. 10 of the Act G The learned Advocate-General, on the other hand, urges that .,. tax becomes due because of the charging sections of the Act, i.e., s. 3 with s. 5. He further contends that a show cause notice had been given on December 4, 1959, and as there was delay in complying with the notice, there was breach of s. 16(1)(b) of the Act.\n\nH In our opinion, there has been no breach of s. 16(1)(b) of the Act, and consequently, the orders imposing the penalties cannot be sustained. According to the terms of s. 16(l)(b), there must\n\n810 SUPIU!MB OOUllT RBPOllTS\n\n(1965) 2 S.C.ll.\n\nbe a tax due and there must be a failure to pay the tax due within A the time allowed.\n\nThere was some discussion before us as to the meaning of the words 'time allowed', but we need not decide in this case whether the words 'time allowed' connote time allowed by an assessing authority or time allowed by a provision in the Rules or the Act, or all these things, as we are of th'e view that no tax was due within the terms of s. 16(1)(b) of the Act.\n\nSec- B lion 3, the charging section, read withs. 5, makes tax payable, i.e., creates a liability to pay the tax. That is the normal function of a charging section in a taxing statute. But till the tax payable is ascertained by the assessing authority under s. • 10, or by the assessee under s; 7 (2), no tax can be said to be due within C s. 16(1)(b) of the Act, for till then there is only a liability to be assessed to tax.\n\nThe contention of the learned Advocate-General that the show cause notice dated December 4, 1959, makes tax due is without any substance. He was not able to point to any rule or provision of the Act, under which the show cause notice was D issued. It may be that the assessing authority had in mind r. 31, but that rule comes into the picture only when an assessment has been completed.\n\nThe last contention of the learned Advocate-General is that the stay order passed by the High Court required the respondent E to submit returns. This, according to him, implied that he had to submit returns in accordance with law, including s. 7(2). As he had failed to submit returns and deposit the tax in accordance with the directions of the High Court, there was a breach of s. 16(1 )(b ).\n\nWe are unable to read the stay order as implying that the respondent was obliged to deposit tax for the stay order then would be :r of no utility to the assessee. Apart from that, the respondent did not file returns till December 1959, and January-March 1960, and s. 7 (2) could not be attracted till then.\n\nWe may mention that we are not concerned with the question whether there has been any breach of s. 16(1)(c).\n\nIn the result, the appeals fail and are dismissed with costs.\n\nOne set of hearing fee.\n\nAppeals dismissed.", "total_entities": 71, "entities": [{"text": "STATE OF RAJASTHAN AND OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "STATE OF RAJASTHAN AND OTHERS", "offset_not_found": false}}, {"text": "GHASILAL", "label": "RESPONDENT", "start_char": 31, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "GHASILAL", "offset_not_found": false}}, {"text": "January 21, 1965", "label": "DATE", "start_char": 41, "end_char": 57, "source": "ner", "metadata": {"in_sentence": "STATE OF RAJASTHAN AND OTHERS\n\nGHASILAL\n\nJanuary 21, 1965\n\n[K. N. WANCHOO, M. HIDAYATULLAH, J.C. S~.\n\nJ. R. MUDHOLKAR AND S. M. SIKRI JJ.]"}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 60, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, J", "label": "JUDGE", "start_char": 75, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 105, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "S. M. SIKRI JJ.", "label": "JUDGE", "start_char": 122, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Sales Tax Act, 1955", "label": "STATUTE", "start_char": 151, "end_char": 170, "source": "regex", "metadata": {}}, {"text": "ss. 7(2), 16(1)(b)", "label": "PROVISION", "start_char": 172, "end_char": 190, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act, 1955", "statute": "Sales Tax Act, 1955"}}, {"text": "On a petition of the assessee challenging the validity of Rajasthan Sales Tax Rules", "label": "STATUTE", "start_char": 239, "end_char": 322, "source": "regex", "metadata": {}}, {"text": "s. 16(1)(b)", "label": "PROVISION", "start_char": 789, "end_char": 800, "source": "regex", "metadata": {"linked_statute_text": "On a petition of the assessee challenging the validity of Rajasthan Sales Tax Rules", "statute": "On a petition of the assessee challenging the validity of Rajasthan Sales Tax Rules"}}, {"text": "s. 7(2)", "label": "PROVISION", "start_char": 1070, "end_char": 1077, "source": "regex", "metadata": {"linked_statute_text": "On a petition of the assessee challenging the validity of Rajasthan Sales Tax Rules", "statute": "On a petition of the assessee challenging the validity of Rajasthan Sales Tax Rules"}}, {"text": "s. 16(l)(b)", "label": "PROVISION", "start_char": 1463, "end_char": 1474, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 1641, "end_char": 1646, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7(2)", "label": "PROVISION", "start_char": 1673, "end_char": 1680, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7(2)", "label": "PROVISION", "start_char": 1944, "end_char": 1956, "source": "regex", "metadata": {"statute": null}}, {"text": "Rajasthan High Court", "label": "COURT", "start_char": 2185, "end_char": 2205, "source": "ner", "metadata": {"in_sentence": "February 5, 1963 of the Rajasthan High Court in D.B. Civil Writ Petitions Nos."}}, {"text": "K. K. Jain", "label": "LAWYER", "start_char": 2325, "end_char": 2335, "source": "ner", "metadata": {"in_sentence": "G. C. Kasliwal, Advocate-General, for the State of Ra; asthan, K. K. Jain and R. N. Sachthey, for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 2340, "end_char": 2354, "source": "ner", "metadata": {"in_sentence": "G. C. Kasliwal, Advocate-General, for the State of Ra; asthan, K. K. Jain and R. N. Sachthey, for the appellant."}}, {"text": "R. K. Garg", "label": "LAWYER", "start_char": 2376, "end_char": 2386, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, S. C. Agarwala, D. P. Singh and M. K. Rtul'Ur murthi, for the respondent."}}, {"text": "S. C. Agarwala", "label": "LAWYER", "start_char": 2388, "end_char": 2402, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, S. C. Agarwala, D. P. Singh and M. K. Rtul'Ur murthi, for the respondent."}}, {"text": "D. P. Singh", "label": "LAWYER", "start_char": 2404, "end_char": 2415, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, S. C. Agarwala, D. P. Singh and M. K. Rtul'Ur murthi, for the respondent."}}, {"text": "M. K. Rtul'Ur murthi", "label": "LAWYER", "start_char": 2420, "end_char": 2440, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, S. C. Agarwala, D. P. Singh and M. K. Rtul'Ur murthi, for the respondent."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 2553, "end_char": 2558, "source": "ner", "metadata": {"in_sentence": "I I\n\nSUPREME COURT REPORTS\n\n[ 1965( 2 S.C.R.\n\nThe Judgment of the Court was delivered by\n\nSikri, J. These two appeals by special leave are directed against the judgment of the Rajasthan High Court allowing Civil Writ Petitions Nos."}}, {"text": "Ghasilal", "label": "RESPONDENT", "start_char": 2804, "end_char": 2812, "source": "ner", "metadata": {"in_sentence": "111 and 172 of 1961, and quashing orders\n\nof the Sales Tax authorities imposing penalties on the respondent, Ghasilal, for delay in payment of tax due.", "canonical_name": "GHASILAL"}}, {"text": "Art. 20(1)", "label": "PROVISION", "start_char": 2939, "end_char": 2949, "source": "regex", "metadata": {"statute": null}}, {"text": "Garg", "label": "OTHER_PERSON", "start_char": 3125, "end_char": 3129, "source": "ner", "metadata": {"in_sentence": "20(1) of the Constitution, but it is not necessary to deal with this question because we are inclined to accept the contention raised by the learned counsel for the respondent, Mr. Garg, that the penalties have been imposed in violation of the relevant statutory provisions."}}, {"text": "March 28, 1955", "label": "DATE", "start_char": 3255, "end_char": 3269, "source": "ner", "metadata": {"in_sentence": "On March 28, 1955, Rajasthan Sales Tax Rules (hereinafter referred to as the Rules) were published in the Rajasthan 'Gazette."}}, {"text": "Rajasthan Sales Tax Rules", "label": "STATUTE", "start_char": 3271, "end_char": 3296, "source": "regex", "metadata": {}}, {"text": "April 1,\n\n1955", "label": "DATE", "start_char": 3463, "end_char": 3477, "source": "ner", "metadata": {"in_sentence": "The Rajasthan Sales Tax Act (hereinafter referred to as the Act) came into force on April 1,\n\n1955."}}, {"text": "January 9, 1958", "label": "DATE", "start_char": 3701, "end_char": 3716, "source": "ner", "metadata": {"in_sentence": "On January 9, 1958, the High Coµrt passed an interim order that 'the petitioner will keep proper accounts and file the prescribed returns but he shall not be assessed till further orders'."}}, {"text": "November 6, 19 5 9", "label": "DATE", "start_char": 3987, "end_char": 4005, "source": "ner", "metadata": {"in_sentence": "5 of 1959) was promulgated on November 6, 19 5 9, validating the Rules."}}, {"text": "December 17, 1959", "label": "DATE", "start_char": 4095, "end_char": 4112, "source": "ner", "metadata": {"in_sentence": "On December 17, 1959 the Rajasthan Sales Tax Validation Act (Rajasthan Act 43 of\n\n1959) replaced the Ordinance."}}, {"text": "Ordinance and the said Validating Act", "label": "STATUTE", "start_char": 4420, "end_char": 4457, "source": "regex", "metadata": {}}, {"text": "December 4, 1959", "label": "DATE", "start_char": 4500, "end_char": 4516, "source": "ner", "metadata": {"in_sentence": "On December 4, 1959, the Sales Tax Officer, Kotah City Circle, sent a show cause notice to the respondent in the following words: G \"Your writ No."}}, {"text": "Kotah City Circle", "label": "GPE", "start_char": 4541, "end_char": 4558, "source": "ner", "metadata": {"in_sentence": "On December 4, 1959, the Sales Tax Officer, Kotah City Circle, sent a show cause notice to the respondent in the following words: G \"Your writ No."}}, {"text": "23rd November,.1959.", "label": "DATE", "start_char": 4695, "end_char": 4715, "source": "ner", "metadata": {"in_sentence": "11 has been dismissed by the Hon'ble High Court on 23rd November,.1959."}}, {"text": "January 8, 1960", "label": "DATE", "start_char": 5086, "end_char": 5101, "source": "ner", "metadata": {"in_sentence": "It appears that on January 8, 1960, March 5, 1960 and March 19, 1960, he deposited Rs."}}, {"text": "October 22, 1957", "label": "DATE", "start_char": 5457, "end_char": 5473, "source": "ner", "metadata": {"in_sentence": "On April 25, 1960, the Sales Tax Officer made an assessment in res- B pect of the accounting period November 3, 1956-to October 22, 1957, and proceeded to impose a penalty of Rs."}}, {"text": "s. 16(l)(b)", "label": "PROVISION", "start_char": 5526, "end_char": 5537, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7(2)", "label": "PROVISION", "start_char": 6303, "end_char": 6315, "source": "regex", "metadata": {"linked_statute_text": "High Court granted to him in a writ petition filed challenging the validity of sales tax rules made under the Act", "statute": "High Court granted to him in a writ petition filed challenging the validity of sales tax rules made under the Act"}}, {"text": "23-4-58", "label": "DATE", "start_char": 6467, "end_char": 6474, "source": "ner", "metadata": {"in_sentence": "This amounts to contravention of the mandatory provisions, the writ was dismissed on 23-4-58 sic (23-11-59), even the amount was not deposited till 17-12-59."}}, {"text": "17-12-59", "label": "DATE", "start_char": 6530, "end_char": 6538, "source": "ner", "metadata": {"in_sentence": "This amounts to contravention of the mandatory provisions, the writ was dismissed on 23-4-58 sic (23-11-59), even the amount was not deposited till 17-12-59."}}, {"text": "s. 7(2)", "label": "PROVISION", "start_char": 6848, "end_char": 6855, "source": "regex", "metadata": {"linked_statute_text": "High Court granted to him in a writ petition filed challenging the validity of sales tax rules made under the Act", "statute": "High Court granted to him in a writ petition filed challenging the validity of sales tax rules made under the Act"}}, {"text": "December 6, 1960", "label": "DATE", "start_char": 6894, "end_char": 6910, "source": "ner", "metadata": {"in_sentence": "G On December 6, 1960, the Sales Tax Officer assessed the respondent in respect of the accounting period October 23, 1957 to November 10, 1958, and imposed a penalty of Rs."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 7186, "end_char": 7194, "source": "regex", "metadata": {"statute": null}}, {"text": "S\n\n808", "label": "PROVISION", "start_char": 7464, "end_char": 7470, "source": "regex", "metadata": {"statute": null}}, {"text": "April l, 1955", "label": "DATE", "start_char": 8023, "end_char": 8036, "source": "ner", "metadata": {"in_sentence": ".20(1) of the Constitution, and that the Rules as originally pub-· B lished on March 28, 1955, suffered from no procedural defect in the matter of their promulgation and duly came into force on April l, 1955."}}, {"text": "s. 7(1)", "label": "PROVISION", "start_char": 8235, "end_char": 8242, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 9349, "end_char": 9359, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 16(1)", "label": "PROVISION", "start_char": 9362, "end_char": 9370, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 9491, "end_char": 9500, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(l)(b)", "label": "PROVISION", "start_char": 10634, "end_char": 10645, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7(1)", "label": "PROVISION", "start_char": 10713, "end_char": 10720, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7(2)", "label": "PROVISION", "start_char": 10732, "end_char": 10744, "source": "regex", "metadata": {"statute": null}}, {"text": "December 18, 1959", "label": "DATE", "start_char": 10881, "end_char": 10898, "source": "ner", "metadata": {"in_sentence": "No tax was due till the respondent filed returns under s. 7(1) of the Act Section 7(2), which requires a deposit of the full amount due on the basis of the return was compiled with when the respondent filed the returns, on December 18, 1959, and in January to March, 1960."}}, {"text": "s. 7(2)", "label": "PROVISION", "start_char": 10967, "end_char": 10974, "source": "regex", "metadata": {"statute": null}}, {"text": "pecember 18,-1959,", "label": "DATE", "start_char": 11099, "end_char": 11117, "source": "ner", "metadata": {"in_sentence": "There cannot be non-compliance F of s. 7(2) unless a return is filed without depositing the tax due on the basis of the return, and as no return was filed earlier than pecember 18,-1959, there had been no violation of the requirements of s. 7(2)."}}, {"text": "s. 7(2)", "label": "PROVISION", "start_char": 11169, "end_char": 11176, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 11247, "end_char": 11252, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 11397, "end_char": 11401, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 11407, "end_char": 11411, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)(b)", "label": "PROVISION", "start_char": 11567, "end_char": 11578, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)(b)", "label": "PROVISION", "start_char": 11638, "end_char": 11649, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(l)(b)", "label": "PROVISION", "start_char": 11761, "end_char": 11772, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)(b)", "label": "PROVISION", "start_char": 12261, "end_char": 12272, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)(b)", "label": "PROVISION", "start_char": 12625, "end_char": 12636, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7(2)", "label": "PROVISION", "start_char": 13342, "end_char": 13349, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1 )(b )", "label": "PROVISION", "start_char": 13481, "end_char": 13494, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 13761, "end_char": 13765, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)(c)", "label": "PROVISION", "start_char": 13901, "end_char": 13912, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_2_811_822_EN", "year": 1965, "text": "SHAH CHHOTALAL LALLUBHAI AND OIBERS\n\nCHARITY COMMISSIONER, BOMBAY, AND OTHERS\n\nI anuary 22, 1965\n\n[K. SUBBA RAO, ACTING C.J., RAGHUBAR DAYAL, R. S.\n\nBACHAWAT AND V. RAMAsWAMI, JJ.]\n\nBombay Public Trusts A.ct (29 of 19SO), ss. SS and 56--DiversJon of accumulatil>n of trust funds-When permitted.\n\nA testator, who professed the Jain religion, gave directions in his will that certain amounts should be spent annually on religious and ch<dtlhlo objects specified by him, and that an annual feast sh<>uld be given to members of his caste in certain specified villages.\n\nHe died in 1916 and by 19S5 there was a large accumulation of unexpended income mainly because of discontinuing the feas~ and so, the Charity Commissioner filed an application before the District Judge, under ss. SS(l)(b) D and 56 of the Bombay Public Trusts Act, 1950 for directions for the utilization of that sum.\n\nThe District Judge directed a division of the amount between an educational institution and a hospital. The appellants, who were of the same caste as the testator and who objected before the District Judge to the diversion of the sum appealed to the High Court, but the appeal was dismissed.\n\nIn their appeal to the Supreme Court, the appellants challenged the E propriety and legality of the directions given by the District Judge and\n\nconfirmed by the High Court.\n\nHELD : The directions should be set aside, as the respondent had llOt made out a case for such diversion of trust funds, and the directions w\"a objectionable on the ground that they did not take into account the original objects of the trust. [821 H; 822 A]\n\nF On an application eithar under s. 5S(l){a) or s. 55(1){b) read with s. 56(2) the Court is bound to give direction in respect of all public trusts.\n\nSection 56(1) provides that in giving the directions, the Court ahall, so far as may be expedient, practicable, desirable, necessary\n\nor proper in the public interest, give effect to tho original intention of the author of the trust or tho object for which the trust was created.\n\nUnder tho latter part of s. 56(1), if the Court finds that tho carrying out of the original intention or object wholly or partially, is neither expedient G nor practicable nor desirable nor necessary nor proper In the public interest, the court may direct the property or income of the trust or any portion thereof to be applied cy pres to any other charitable or rdigiooa\n\nobject. One of the objects for which the trust was created in the instant case, was the annual feast to the members of the testator's caste.\n\nLooking at the interest of the community, it was certainly expedient, practicable, desirable and proper to give the feast.\n\nEven if it was not a religious act, it was a meritorious one prescribed by the scriptures of the H Jains. In the wider public interest also it was expedient, practicable, deoirable and proper to respect the sentiments and interests of that section of the Jain public and to give effect to the charity. [818 B-C, D-B, F,\n\n0-H]\n\n812 SUPllEMB COURT llEPOllTS\n\n(1965] 2 S.C:R.\n\nFurther, the overriding intention of the founder of the trust wu A that the amount set apart by him should be devoted to the objects mentioned in the will, so that those objects may be continued and carried out for ever. In accordance with the intention of the founder the surplus should be applied, as nearly as possible to the original uses and purposes of the trust.. The savings shoQld be applied suitably for carrying out the same objects in future or to increase the amounts spendable for the surviving objects of the truSt, instead of diverting them for other purposes.\n\n[820 C, F, H]\n\n[Suitable directions were given by the Court in lieu of thooe set aside, for utilising the accumulations].\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 634 of 1964.\n\nAppeal by special leave from the judgment and decree dated C January 25, 1957, of the Bombay High Court in Appeal No. 620 of 1956.\n\nGumanmal Lodha, J. S. Rastogi and J.B. Dadachanji, for the appellants.\n\nP. K. Chatterjee, B. R. G. K. Achar for R. H. Dhebar, for D respondent No. 1.\n\nThe Judgment of the Court was delivered by\n\nBachawat. J, One Jbaverchand Dahyabhai Shah died in 1916, leaving a will, dated August 6, 1915. He was a resident E of V ejalpore in the suburbs of Broach and a Ladva Shrimali Bania by caste.\n\nHe professed the Jain religion, and believed in the tenets of the Swetembar Murti Pujak sect of Jains. By cl. (7) of the will, he directed his executors to spend out of the earnings of his shop every year during the life-time of his niece, Bai Jakore, the amounts mentioned below on the following religious objects : F\n\n( 1) Rs. 100 for feeding cattle with grass, fodder, oil cakes etc., in the Broach Pinjrapole. ( 2) Rs. 100 for J iva-daya Khat a (fund for kindness to animals).\n\n( 3) Rs. 25 for offering flowers for the worship of Lord G Rikabdev in the Jain temple at Vejalpore, Broach. ( 4) Rs. 200 for providing food to Shravak pilgrims at the Shatroonjaya Hill at Palitana. ( 5) Rs. 50 for providing food to pilgrims at Mount Gimar.\n\n( 6) Rs. 50 for providing food to pilgrims at Mount Abu.\n\n(7) Rs. 250 for providing cereals, clothes etc., to Shravaks and Shravikas.\n\n( 8) Rs. 100 for providing cloth to Jain Sadhus and Sadhavies.\n\n( 9) Rs. 200 for education and food of Hindu orphans.\n\n(10) Rs. 200 for Jain Gyan Khata (fund for imparting knowledge).\n\n( 11 ) Rs. 100 for feeding Shravaks and Shravlkas who have observed fast.\n\n( 12) Rs. 300 for giving food, cloth etc., to the blind,\n\nlame and crippled members of the Hindu Community.\n\nIn addition, he also directed his executors to give a Swamivat:raJ 0 feast or meal consisting of methi-dal and ladus made of sugar to the members of his caste at 15 specified villages and towns in the Broach and Surat Districts every year on the occasion of the sacred festival of Pajusan. By cl. (15) of the will, he directed that after the death of his niece, Bai Jakore, a sum of Rs. 75,000 should be set apart by the executors, and out of the moneys so set E apart, suitable amounts should be sent to the respective Khata:r\n\n(funds) in his name, so that the religious acts mentioned in cl. (7) be continued for ever.\n\nOn the death of Bai Jakore on May 20, 1928, the estate vested in the residuary legatee, Bai Chanchal, daughter of Bai Jakore.\n\nF Mulchandbhai, husband of Bai Chanchal, set apart Rs. 75,000 on trust for the purposes mentioned in cl. ( 7) of the will, and began to manage the trust estate. Out of the trust moneys, he invested Rs. 8,000 in per cent tax-free Government Loan, 1944-45, yielding an annual income of Rs. 400, and pursuant to the directions given in cl. (15) of the will, handed over loans of the face G value of Rs. 4,000, Rs. 1,000, Rs. 1,000, and Rs. 2,000 respectively to four religious and charitable institutions in full discharge of the obligation of the trust for expending annually the sums of Rs. 200, Rs. 50, Rs. 50 and Rs. 100 on items 2, 4, 5 and 6 of the religious purposes mentioned in cl. (7) of the will. On December 8, 194 7, Bai Chanchal executed a trust deed in respect of the H investments representing the balance amount of Rs. 67,000 and an accumulation of surplus or unexpended income amounting to Rs. 25,796-6-8. The trust is registered as a public trust under the\n\n81'\n\nSUPJU!MB COURT JU!PORTS\n\n[1965) 2 S.C.R.\n\nBombay Public Trusts Act, 1950, hereinafter referred to as the A Act. The trust deed provided that the unexpended accumulation of Rs. 25, 796-6-8 should be applied for establishing, maintaining and supporting a Nivas for housing the poor and middle-class provided . that after setting apart the aforesaid sum of Ladva Shrimali Jains at low and cheap rents. The trust deed also provided that after setting apart the aforesaid sum of B Rs. 25,796-6-8 the balance funds would be held in trust for applying its income to the charities mentioned in cl. (7) of the aforesaid will other than items 2, 4, 5 and 6. Now, the trustees had no authority to divert any part of the trust fund for the purposes of the Nivas scheme. The establishment of a Nivas for housing the poor C and middle-class Ladva Shrimali J ains is not one of the original objects of the trust. As a matter of fact, the Nivas scheme was not carried into effect. The Charity Commissioner, Bombay challenged the validity of the Nivas scheme. The Courts below rightly proceeded on the footing that the Nivas scheme is invalid. Subsequent\n\nto the execution of the trust deed, there were further accumula- D tions of unexpended income. The Swamivatsal feasts were given, and the fixed annual payments to all the charities were duly met up to Samvat year 1999 corresponding to 1942-1943 A.D. During the subsequent years, the fixed annual payments to the charities were duly made, but on account of rationing restrictions, the feasts could not be given up to Samvat year 2010 corresponding to E 1953-1954 A.D. During the Samvat year 2011 corresponding to 1954-1955 A.D., the feast was not given in spite of the removal of rationing restrictions. The trustees allege that the current income of the trust fund after disbursing the fixed annual payments is not sufficient to meet the usual expenses of annual feasts. On June 3, 1955, the Charity Commissioner filed an application F before the District Judge, Broach under s. 55 ( 1 )(b) and s. 56 of the Act for suitable directions for the utilisation of the accumulations of the unexpended income of the trust for some educational purpose.\n\nThe trustees were impleaded as respondents to this application. Pursuant to a general notice issued by the Court, the appellants and four other members of the Ladva Shrimali G Shravak Bania Community in Broach and Surat Districts appeared, and intervened in the application. On their behalf, it was contended that the trust was for religious purposes and its funds could not be diverted for other purposes under ss. 55 ( l )(b) and 56 of the Act, and that the accumulations should be utilised year after year for meeting the deficit amount required for the annual Swami- H vatsal feasts.\n\nThe District Judge held that the provisions of s. 56 of the\n\nA Act did not apply to the funds of a public religious trust, and if the accumulations were held for a religious purpose, the Court could not give any directions for its utilisation under that section, that the Swamivatsal feast confers religious benefits and objects Nos. 2, 3, 4, 5, 6, 8 and 11 are also religious in character, while the remaining objects are charitable, and therefore the entire feast B was not of a religious character, but assuming that the trust was wholly religious, the accumulation was not held for religious purposes, and was subject to the directions of the Court as to its utilisation under s. 56 read with s. 55 (1) (b) of the Act. He also held that the trustees could not save any moneys in future by simply refusing to give the Swamivatsal feasts but it was not in the C public interest to provide for the expenses of the feast out of the accumulation, and the accumulation should be spent for educational and medical purposes. The District Judge passed final orders on October 25, 1956. On that date, the accumulation of unexpended income amounted to Rs. 45,019-14-0, besides another sum of D Rs. 107-2-0. The District Judge directed the trustees to hand over a sum of Rs. 22,505-15-0 to an institution known as the Sad Vidya Manda! for giving four freeships every year to deserving student~. who should preferably be Jains of Broach District and failing such deserving cases, to other Hindu students. Subject to the condition of giving freeships, the Sad Vidya Manda! would be at liberty to E spend the amount for purposes of the building of the College or its hostel or in providing other educational facilities to the students.\n\nHe also directed the trustees to pay another sum of Rs. 22,509-15-0 to the trustees of the Sevashram Hospital at Broach on condition that the amount be invested in any approved trust security and its income be utilised in providing maintenance, food and medicine F to poor and deserving patients. He directed the payment of the remaining sum of Rs. 107-2-0 towards costs.\n\nThe appellants and two other members of the Ladva Shrimali Shravak Bania Community preferred an appeal to the Bombay High Court. The High Court held that the Court could on an application under s. 5 5 of the Act deviate from the directions of G the settler, even if th':' purpose of the trust has not failed, where the Court finds that it is inexpedient, impracticable, undesirable, unnecessary or improper in the public interest to abide by his directions, but the Court could exercie this power only in respect of funds of a public trust which was not a trust for religious purposes. The High Court held that none of the purposes H mentioned in cl. (7) of the will except the one mentioned in item 3 of the clause could be regarded as religious, that the object of providing funds for annual Swamivatsal feasts was charitable and\n\nSUPRBMB COURT REPORTS\n\n[1965) 2 S.C.R.\n\nnot religious, and that the Court was, therefore, competent to A entertain the application under s. 5 5.\n\nThe High Court further held that providing a feast to the members of the caste even on the occasion of a religious festival or on days which may be regarded as , holy is not expedient, desirable, necessary or proper in the -public: interest, and the directions of the District Judge with regard to the distribution of the fund should not be interfered B with.\n\nThe High Court accordingly dismissed the appeal.\n\nThe appellants now appeal to this Court by special leave. They challenge the propriety and the legality of the directions given by the District Judge below, and repeat the submissions made on their behalf in the Courts below. The respondents contend that the aforesaid directions were rightly given under ss. 55 (1) (b) C and 56 of the Act.\n\nThe Bombay Public Trusts Act, 1950 was passed on August 14, 1950, with a view to regulate and make better provision for the administration of public religious and charitable trusts in the D State of Bombay. Soon after the Act came into force, its constitutional validity was assailed. In Ratilal Panachand Gandhi v.\n\nThe State of Bombay and Others('), this Court held that a religious sect or denomination has the right guaranteed by the Constitution to manage its own affairs in matters of religion, and this includes the right to spend the trust property or its income for E religion and for religious purposes and objects indicated by the founder of the trust or established by usage obtaining in a particular institution. To divert the trust property or funds for purposes which the Charity Commissioner or the Court considers expedient or proper,. although the original objects of the founder can still be carried out, is an unwananted encroachment on the freedom of F religious institutions in regard to the management of their religious affairs and therefore s. 55 (1 )( c), which contains the offending provision and the corresponding provision relating to the powers of the Court occurring in the latter part of s. 56(1) must be held to be void. Subsequently, Bombay Act 59 of 1954 amended s. 55(1)(c) by excluding from its purview a trust for a religious G purpose. Sections 55 and 56 of the Bombay Trusts Act, 1950, as they stand now, are as follows :\n\n\"55. (I) If upon an application made to him or otherwise the Charity Commissioner is of opinion that-\n\n( a) the original object for which the public trust H was created has failed,\n\n(1) [19541 s. c. R. toss, 1010-1012.\n\n' ;-\n\n(b) the income or any surplus balance of any public trust has not been utilized or is not likely to be utilized, ( c) in the case of a public trust other than a trust for a religious purpose, it is not in public interest expedient, practicable, desirable, necesary or proper to carry out wholly or partially the original inJention of the author of the public trust or the object for which the public trust was created and tkat the property or the income of the public trust or any portion thereof should be applied to any other charitable or religious object,\n\n( d) in any of the cases mentioned in sections 10 to 13 or in regard to the appropriation of the dharmada sums held in trust under section 54 the directions of the Court are necessary,\n\nthe Charity Commissioner shall require the trustee to apply within the prescribed time for directions to the Court within the local limits of whose jurisdiction the whole or part of the subject-matter of the trust is situate.\n\n(2) If the trustees fail to make the application as required under sub-section ( l) or if the Charity Commissioner himself is a trustee or if there is no trustee of the public trust, the Charity Commissioner shall make an application to the Court.\n\n56. ( l) On such application being made, the court after hearing the parties and making an inquiry shall decide the matter and shall give directions.\n\nIn giving the directions, the court, shall, so far as may be expedient, practicable, desirable, necessary or proper in public interest, give effect to the original intention of the author of the public trust or the object for which the public trust was created. If the court is of opinion that the carrying out of such intention or object is not desirable, necessary or proper in public interest the court may direct the property or income of the public trust or any portion thereof to be applied cy pres to any other charitable or religious object.\n\nIn doing so, it shall be lawful for the court to alter .any scheme already settled or to vary the terms of any decree or order already passed in respect of the public trust or the conditions contained in the instrument of the public trust. ( 2) Any decision or order passed by the Court under sub-section (1) shall be deemed to be a decree\n\n.. •. ~' ' . ' '~\n\n.·~· ..\n\n' \\, ; ..\n\n~ .t\n\n818 SUPllBMB COURT llBPORTS\n\n( 1965[ 2 S.C.R.\n\nof such court and an appeal shall lie therefrom to the A High Court.\" Section 2(13) of the Act provides that unless there is any thing repugnant in the subject or context, public trust means an express or constructive trust for either a public religious or charitable purpose or both. Section 55(1){c) expressly excludes B from its operation a trust for a religious purpose. But ss. 55 ( 1)\n\n(a) and 55 { 1 )(b) do not exclude religious trusts from their operation, and they apply to all public trusts for religious and charitable purposes. On an application either under s. 55 ( 1) (a) ors. 55(1)(b) read with s. 56(2), the Court is bound to give directions in respect of all public trusts. Section 56 ( 1) provides c that in giving the directions, the Court shall, so far as may be expedient, practicable, desirable, necessary or proper in the public interest, give effect to the original intention of the author of the trust or the object for which the trust was created. The conjunction \"or\" in this sentence introduces several alternatives.\n\nThe Court must give effect to the original intention or object if and so D far as it may be either expedient or practicable or desirable or proper or necessary to do so. If, for example, the Court finds that it is proper in the public interest to give effect to the original object, the Court must give effect to it, though it is not necessary to do so in the public interest. Under the latter part of s. 56( 1), if the Court finds that the carrying out of the original intention E or object wholly or partially is neither expedient nor practicable nor desirable nor necessary nor proper in public interest, the Court may direct the property or income of the trust or any portion thereof to be applied cy pres to any other charitable or religious object.\n\nThe latter part of s. 56(1) thus permits the diversion of trust funds for other objects, though the original F objects of the founder can still be carried out. But we think that the respondents have made out no case for such a diversion of trust funds. One of the objects for which the trust was created was that a Swamivatsal feast to the members of the Ladva Shrimali Bania caste should be given every year on the occasion of the holy festival of Pajusan. The Jains of Ladva Shrimali Shravak G Bania Community are the chief beneficiaries of this trust. Looking at their interest, it is certainly expedient, practicable, desirable and proper to give the feast. The . giving and taking of the Swamivatsal feast on the occasion of the holy festival of Pajusan, if not a religious act, is a meritorious act prescribed by the scriptures of Swetambar Murti Pujak Jains. The wider public interest 8\n\ndoes not require that this special charity for a section of the Jain public should be subverted and overthrown. In the wider public\n\nA interest also, it is expedient, practicable, desirable and proper to\n\nrespect the sentiments and interests of this section of the Jain public and to give effect to this charity, and we find no reason for giving directions under the latter part of s. 56(1). We, therefore, propose to give directions under the first part of s. 5 6 ( 1 ) .\n\nIn this view of the matter, it is not necessary to decide, whether B the trust is a trust for religious purposes, and if so, whether, having regard to Ratila/Panachand's case(') its income or surplus balance spendable for the purposes of the trust can be diverted for other purposes, though the original object of the trust can still be carried out.\n\nThe question whether or not the objects C mentioned in cl. (7) of the will are religious objects is not raised in the plrodings. No issues were framed and no evidence was led on this point by either party. What are religious purposes must be decided according to the tenets and religious beliefs of the Murri Pujak Swetambara sect of Jains, to which the testator belonged.\n\nIt is difficult to decide the point in the absence of\n\n0 relevant pleadings, issues and evidence. The District Judge held that the Swamivatsal feast and many other objects are religious objects.\n\nThe High Court too lightly brushed aside this finding.\n\nChapter IX of the Report of the Hindu Religious Endowments Commission (1960-62) contains an interesting discussion of Jain endowments. Paragraphs 7 to 11 of Chap. IX of the Report refer E to seven types of religious funds specifically recognised by the Jain scriptures concerning ( 1) Jeena Bimba, (2) Jeena Chaitya,\n\n(3) Gyan Fund, (4) Sadhu, (5) Sadhvi, (6) Shravak and (7) Shravika.\n\nThe Jains recognise numerous other endowments or funds for the general or specific purposes, the corpus or interest of which is to be utilised as per the donor's intentions. The question F whether the several objects of the trust including the giving of a Swamivatsal feast are religious in their character must be left open for future decision.\n\nWe must now consider what directions should be given under s. 56 on the present application. No case for applying the latter part of s. 56(1) and for refusing to give effect to the original G objects of the trust has been made out.\n\nWe should, therefore; give effect to the original intention of the founder as far as that intention can be carried out. If the method indicated by the founder cannot be carried out, the C, Ourt will substitute another method cy pres, that is to say, as nearly as possible to the method specified by the founder. The application of the cy pres principle H is explained in Story's Equity Jurisprudence, 3rd Edn., Art. 1176, p. 494 thus:\n\n(1) [19S4) s. c. R. 1055.\n\nSUPREME COURT REPORTS\n\n[1965) 2 S.C.R.\n\n\"The doctrine of cy pres as applied to charities was formerly pushed to a most extravagant length. But this sensible distinction now prevails that the Court will not decree the execution of the trust of a charity in a manner different from that intended, except so far as it is seen that the intention canriot be literally executed. In that case another mode will be adopted, consistent with the general intention, so as to execute it, although not in mode, yet in substance. If the mode should become by subsequent circumstances impossible, the general object is not to be defeated, if it can in any other way be attained.\" In the instant case, the overriding intention of the founder of the trust is that the sum of Rs. 75,000 set apart by him should be devoted to the objects mentioned in cl. ( 7) of the will, so that those objects may be continued and carried out for ever.\n\nHis intention was that fixed sums should be expended annually for\n\nthe 12 items of charity mentioned and reasonable sums should be D expended annually in giving Swamivatsal feasts to members of his caste. The sum spendable annually for the feast was necessarily of a fluctuating character. In accordance with the directions given in cl. (15) of the will, the obligations of the trust for\n\nme charities mentioned in items 2, 4, 5 and 6 of cl. (7) of the will have been fully discharged by donating Rs. 8,000 out of the E corpus of the trust. The expenses of t4e annual Swamivatsal feasts were met, and the payments to other charities were duly made out of the income of the balance funds every year up to Samvat 1999 corresponding to 1942-43 A.D., and the accumulations of the unexpended income up to that year represent a true surplus. In accordance with the intention of the founder of the trust, the F surplus should be applied as nearly as possible to the original uses and purposes of the trust. In all the circumstances of the case, the surplus should be applied to increase the amounts spendable for the surviving objects of the trust. During the subsequent years up to Samvat year 2010 corresponding to 1953- 1954 A.D., the annual feasts could not be given due to rationing G restrictions, but the expenses of the other charities were duly met. The savings of the income spendable during these years for the feasts should be applied suitably for carrying out the same object in future. The balance savings, if any, should be devoted towards increasing the amounts spendable f<ir the other objects of the trust. The savings during Samvat year 2011 corresponding H to 1954-55 A.D. were due to the fact that the annual feast was not given in spite of the absence of rationing restrictions. The\n\nA savings for this year should be devoteq towards the giving of the Swamivatsal feasts. The trustees cannot be allowed to defeat the objects of the trust by refusing to carry them out. It is said that the giving of a SwamivatsdJ feast on the scale given in the past would now cost about Rs. 3,000. But if the income at the disposal of the trustees will not permit the spending of such a large B amount, there is no reason why the trustees would not spend a smaller amount and give the feast to a smaller number of guests.\n\nIn view of the enormous rise in prices since the creation of the trust, an increase of the amounts spendable for the charities would be in accordance with the general intention of the founder. This is an additional reason for applying the unexpended fucome for C the original objects of the trust instead of diverting them for other purposes.\n\nIt is desirable that instead of spending the corpus of the accumulations, the corpus should be invested and its income should be applied towards the original objects. In the light of all these considerations, we propose to give the di.rectioo, s set out in our order.\n\nThe scheme framed by the Courts below is objectionable in several ways. In framing the scheme, the Courts below erroneously disregarded one of the main objects of the trust, viz., the giving of the annual Swamivatsal feast on the ground that it is not expe- E dient, desirable, necessary or proper in the public interest to carry out this object The scheme disregards the basic principle that the trust funds should be applied for effectuating the intention of the founder of the trust as far as possible. The direction for payment of one half of the accumulations to the Sad Vidya Manda! on the ground that its object is analogous to the object F of the 1 ain Gyan Fund mentioned in item 8 of cl. 10 of the will is objectionable on the ground that the freeships are not restricted to the 1 ains and also on the ground that subject to giving the freeships the donee is entitled to spend the corpus for other purposes. Moreover, the purposes of the Sad Vidya Manda! and its freeships are not analogous to the purposes of the 1 ain Gyan G Fund, which is a religious fund for imparting knowledge of 1 ain religion and 1 ain Shastras. The direction for payment of one half of the accumulated amount to the Sevashram Hospital is objectionable on the ground that medical treatment of the poor and deserving is not one of the objects specifically mentioned in cl. 7 of the will.\n\nBoth these directions are :ilso objectionable on the H ground that they do not take into account the original objects of the trust. For all these reasons, the directions given by the Courts below must be set aside.\n\n- '~~\n\n- . :-t _, 3. -: ,- •\n\n' <\n\n\n(1965] 2 S.C.R.\n\nIn the result, the appeal is allowed, and the judgments and A decrees passed by the Courts below are set aside. In lieu of the directions given by the Courts below, we give the following directions :\n\nOut of the accumulations of the unexpended income up to the 25th October, 1956 amounting to Rs. 45,091-14-0 the B trustees will set apart a reasonable sum not exceeding Rs. 5,000 as a working fund to meet current expenses.\n\nThe trustees will invest the balance amount in such manner as they think fit in accordance with s. 35 of the Bombay Public Trusts Act, 1950.\n\nThe trustees will spend and utilise every year one-half of the annual income from these investments for the charities mentioned C in items l, 3, 7, 8, 9, 10, 11 and 12 of cl. 7 of the will of Jhaverchand Dahyabhai Shah, dated August 6, 1915 in such proportion and in such manner as the trustees think fit and proper.\n\nT)le trustees will spend and utilise every year the balance one-half of the annual income of those investments for the annual Swamivatsal feast (caste-dinner) mentioned in cl. 7 of the afore- D said will. The disbursemnts to be made under these directions will be in addition to the payments to be made by the trustees out of the income of the investments of the original corpus of the trust funds.\n\nOut of the net income of the investments of the original corpus, the trustees will continue to make the annual payments to the charities mentioned in items t, 3, 7, 8, 9, 10, 11 E and 12 of cl. 7 of the aforesaid will and will spend the balailCe income for giving the annual Swam, ivatsal feasts.\n\nThe trustees shall give the Swamivatsal feast every year as far as possible. If for some reason the feast cannot be given in any year, the amount spendable for this object in that year should be spent for giving the feast 'in the following years.\n\nIn the circumstances of the case, we direct that the parties will pay and bear their own costs throughout in this Court as also in the Courts below, except that the trustees will pay the sum of Rs. 64-8-0 to the Charity Commissioner and the sum of Rs. 42-10-0 to opponents Nos. 6 to 13 to the application, as G originally directed by the District Judge.\n\nAppeal 11llowed.", "total_entities": 95, "entities": [{"text": "SHAH CHHOTALAL LALLUBHAI AND OIBERS", "label": "PETITIONER", "start_char": 0, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "SHAH CHHOTALAL LALLUBHAI AND OTHERS", "offset_not_found": false}}, {"text": "CHARITY COMMISSIONER, BOMBAY, AND OTHERS", "label": "RESPONDENT", "start_char": 37, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "CHARITY COMMISSIONER, BOMBAY, AND OTHERS", "offset_not_found": false}}, {"text": "anuary 22, 1965", "label": "DATE", "start_char": 81, "end_char": 96, "source": "ner", "metadata": {"in_sentence": "SHAH CHHOTALAL LALLUBHAI AND OIBERS\n\nCHARITY COMMISSIONER, BOMBAY, AND OTHERS\n\nI anuary 22, 1965\n\n[K. SUBBA RAO, ACTING C.J., RAGHUBAR DAYAL, R. S.\n\nBACHAWAT AND V. RAMAsWAMI, JJ.]"}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 99, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL", "label": "JUDGE", "start_char": 126, "end_char": 140, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "BACHAWAT", "label": "JUDGE", "start_char": 149, "end_char": 157, "source": "metadata", "metadata": {"canonical_name": "BACHAWAT", "offset_not_found": false}}, {"text": "V. RAMAsWAMI, JJ.", "label": "JUDGE", "start_char": 162, "end_char": 179, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Bombay Public Trusts Act, 1950", "label": "STATUTE", "start_char": 804, "end_char": 834, "source": "regex", "metadata": {}}, {"text": "Supreme Court", "label": "COURT", "start_char": 1200, "end_char": 1213, "source": "ner", "metadata": {"in_sentence": "In their appeal to the Supreme Court, the appellants challenged the E propriety and legality of the directions given by the District Judge and\n\nconfirmed by the High Court."}}, {"text": "s. 5S(l)", "label": "PROVISION", "start_char": 1643, "end_char": 1651, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Public Trusts Act, 1950", "statute": "the Bombay Public Trusts Act, 1950"}}, {"text": "s. 55(1)", "label": "PROVISION", "start_char": 1658, "end_char": 1666, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Public Trusts Act, 1950", "statute": "the Bombay Public Trusts Act, 1950"}}, {"text": "s. 56(2)", "label": "PROVISION", "start_char": 1680, "end_char": 1688, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Public Trusts Act, 1950", "statute": "the Bombay Public Trusts Act, 1950"}}, {"text": "Section 56(1)", "label": "PROVISION", "start_char": 1760, "end_char": 1773, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Public Trusts Act, 1950", "statute": "the Bombay Public Trusts Act, 1950"}}, {"text": "s. 56(1)", "label": "PROVISION", "start_char": 2066, "end_char": 2074, "source": "regex", "metadata": {"statute": null}}, {"text": "Gumanmal Lodha", "label": "JUDGE", "start_char": 3950, "end_char": 3964, "source": "ner", "metadata": {"in_sentence": "Gumanmal Lodha, J. S. Rastogi and J.B. Dadachanji, for the appellants."}}, {"text": "J. S. Rastogi", "label": "LAWYER", "start_char": 3966, "end_char": 3979, "source": "ner", "metadata": {"in_sentence": "Gumanmal Lodha, J. S. Rastogi and J.B. Dadachanji, for the appellants."}}, {"text": "J.B. Dadachanji", "label": "LAWYER", "start_char": 3984, "end_char": 3999, "source": "ner", "metadata": {"in_sentence": "Gumanmal Lodha, J. S. Rastogi and J.B. Dadachanji, for the appellants."}}, {"text": "P. K. Chatterjee", "label": "LAWYER", "start_char": 4022, "end_char": 4038, "source": "ner", "metadata": {"in_sentence": "P. K. Chatterjee, B. R. G. K. Achar for R. H. Dhebar, for D respondent No."}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 4040, "end_char": 4057, "source": "ner", "metadata": {"in_sentence": "P. K. Chatterjee, B. R. G. K. Achar for R. H. Dhebar, for D respondent No."}}, {"text": "R. H. Dhebar", "label": "LAWYER", "start_char": 4062, "end_char": 4074, "source": "ner", "metadata": {"in_sentence": "P. K. Chatterjee, B. R. G. K. Achar for R. H. Dhebar, for D respondent No."}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 4145, "end_char": 4153, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBachawat.", "canonical_name": "BACHAWAT"}}, {"text": "Jbaverchand Dahyabhai Shah", "label": "OTHER_PERSON", "start_char": 4162, "end_char": 4188, "source": "ner", "metadata": {"in_sentence": "J, One Jbaverchand Dahyabhai Shah died in 1916, leaving a will, dated August 6, 1915."}}, {"text": "Broach", "label": "GPE", "start_char": 4293, "end_char": 4299, "source": "ner", "metadata": {"in_sentence": "He was a resident E of V ejalpore in the suburbs of Broach and a Ladva Shrimali Bania by caste."}}, {"text": "Bai Jakore", "label": "OTHER_PERSON", "start_char": 4578, "end_char": 4588, "source": "ner", "metadata": {"in_sentence": "7) of the will, he directed his executors to spend out of the earnings of his shop every year during the life-time of his niece, Bai Jakore, the amounts mentioned below on the following religious objects : F\n\n( 1) Rs."}}, {"text": "G Rikabdev", "label": "OTHER_PERSON", "start_char": 4877, "end_char": 4887, "source": "ner", "metadata": {"in_sentence": "25 for offering flowers for the worship of Lord G Rikabdev in the Jain temple at Vejalpore, Broach. ("}}, {"text": "Palitana", "label": "GPE", "start_char": 5009, "end_char": 5017, "source": "ner", "metadata": {"in_sentence": "200 for providing food to Shravak pilgrims at the Shatroonjaya Hill at Palitana. ("}}, {"text": "Surat Districts", "label": "GPE", "start_char": 5795, "end_char": 5810, "source": "ner", "metadata": {"in_sentence": "In addition, he also directed his executors to give a Swamivat:raJ 0 feast or meal consisting of methi-dal and ladus made of sugar to the members of his caste at 15 specified villages and towns in the Broach and Surat Districts every year on the occasion of the sacred festival of Pajusan."}}, {"text": "May 20, 1928", "label": "DATE", "start_char": 6235, "end_char": 6247, "source": "ner", "metadata": {"in_sentence": "On the death of Bai Jakore on May 20, 1928, the estate vested in the residuary legatee, Bai Chanchal, daughter of Bai Jakore."}}, {"text": "Bai Chanchal", "label": "OTHER_PERSON", "start_char": 6293, "end_char": 6305, "source": "ner", "metadata": {"in_sentence": "On the death of Bai Jakore on May 20, 1928, the estate vested in the residuary legatee, Bai Chanchal, daughter of Bai Jakore."}}, {"text": "F Mulchandbhai", "label": "PETITIONER", "start_char": 6332, "end_char": 6346, "source": "ner", "metadata": {"in_sentence": "F Mulchandbhai, husband of Bai Chanchal, set apart Rs."}}, {"text": "December 8, 194", "label": "DATE", "start_char": 7040, "end_char": 7055, "source": "ner", "metadata": {"in_sentence": "On December 8, 194 7, Bai Chanchal executed a trust deed in respect of the H investments representing the balance amount of Rs."}}, {"text": "Bombay Public Trusts Act, 1950", "label": "STATUTE", "start_char": 7353, "end_char": 7383, "source": "regex", "metadata": {}}, {"text": "Ladva Shrimali", "label": "OTHER_PERSON", "start_char": 8138, "end_char": 8152, "source": "ner", "metadata": {"in_sentence": "The establishment of a Nivas for housing the poor C and middle-class Ladva Shrimali J ains is not one of the original objects of the trust."}}, {"text": "June 3, 1955", "label": "DATE", "start_char": 9224, "end_char": 9236, "source": "ner", "metadata": {"in_sentence": "On June 3, 1955, the Charity Commissioner filed an application F before the District Judge, Broach under s. 55 ( 1 )(b) and s. 56 of the Act for suitable directions for the utilisation of the accumulations of the unexpended income of the trust for some educational purpose."}}, {"text": "District Judge, Broach", "label": "COURT", "start_char": 9297, "end_char": 9319, "source": "ner", "metadata": {"in_sentence": "On June 3, 1955, the Charity Commissioner filed an application F before the District Judge, Broach under s. 55 ( 1 )(b) and s. 56 of the Act for suitable directions for the utilisation of the accumulations of the unexpended income of the trust for some educational purpose."}}, {"text": "s. 55", "label": "PROVISION", "start_char": 9326, "end_char": 9331, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 56", "label": "PROVISION", "start_char": 9345, "end_char": 9350, "source": "regex", "metadata": {"statute": null}}, {"text": "Ladva Shrimali G Shravak Bania Community", "label": "ORG", "start_char": 9655, "end_char": 9695, "source": "ner", "metadata": {"in_sentence": "Pursuant to a general notice issued by the Court, the appellants and four other members of the Ladva Shrimali G Shravak Bania Community in Broach and Surat Districts appeared, and intervened in the application."}}, {"text": "ss. 55", "label": "PROVISION", "start_char": 9908, "end_char": 9914, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 56", "label": "PROVISION", "start_char": 10132, "end_char": 10137, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 56", "label": "PROVISION", "start_char": 10766, "end_char": 10771, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 55", "label": "PROVISION", "start_char": 10782, "end_char": 10787, "source": "regex", "metadata": {"statute": null}}, {"text": "October 25, 1956", "label": "DATE", "start_char": 11148, "end_char": 11164, "source": "ner", "metadata": {"in_sentence": "The District Judge passed final orders on October 25, 1956."}}, {"text": "Broach District", "label": "GPE", "start_char": 11506, "end_char": 11521, "source": "ner", "metadata": {"in_sentence": "for giving four freeships every year to deserving student~. who should preferably be Jains of Broach District and failing such deserving cases, to other Hindu students."}}, {"text": "Sevashram Hospital at Broach", "label": "ORG", "start_char": 11902, "end_char": 11930, "source": "ner", "metadata": {"in_sentence": "22,509-15-0 to the trustees of the Sevashram Hospital at Broach on condition that the amount be invested in any approved trust security and its income be utilised in providing maintenance, food and medicine F to poor and deserving patients."}}, {"text": "Ladva Shrimali Shravak Bania", "label": "ORG", "start_char": 12228, "end_char": 12256, "source": "ner", "metadata": {"in_sentence": "The appellants and two other members of the Ladva Shrimali Shravak Bania Community preferred an appeal to the Bombay High Court."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 12294, "end_char": 12311, "source": "ner", "metadata": {"in_sentence": "The appellants and two other members of the Ladva Shrimali Shravak Bania Community preferred an appeal to the Bombay High Court."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 12378, "end_char": 12382, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPRBMB COURT REPORTS\n\n[1965) 2 S.C.R.", "label": "COURT", "start_char": 13017, "end_char": 13055, "source": "ner", "metadata": {"in_sentence": "7) of the will except the one mentioned in item 3 of the clause could be regarded as religious, that the object of providing funds for annual Swamivatsal feasts was charitable and\n\nSUPRBMB COURT REPORTS\n\n[1965) 2 S.C.R.\n\nnot religious, and that the Court was, therefore, competent to A entertain the application under s. 5 5."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 13154, "end_char": 13158, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 55", "label": "PROVISION", "start_char": 13879, "end_char": 13885, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Public Trusts Act, 1950", "label": "STATUTE", "start_char": 13920, "end_char": 13950, "source": "regex", "metadata": {}}, {"text": "August 14, 1950", "label": "DATE", "start_char": 13965, "end_char": 13980, "source": "ner", "metadata": {"in_sentence": "The Bombay Public Trusts Act, 1950 was passed on August 14, 1950, with a view to regulate and make better provision for the administration of public religious and charitable trusts in the D State of Bombay."}}, {"text": "Bombay", "label": "GPE", "start_char": 14115, "end_char": 14121, "source": "ner", "metadata": {"in_sentence": "The Bombay Public Trusts Act, 1950 was passed on August 14, 1950, with a view to regulate and make better provision for the administration of public religious and charitable trusts in the D State of Bombay."}}, {"text": "s. 55", "label": "PROVISION", "start_char": 14982, "end_char": 14987, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 56(1)", "label": "PROVISION", "start_char": 15137, "end_char": 15145, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 55(1)(c)", "label": "PROVISION", "start_char": 15215, "end_char": 15226, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 55 and 56", "label": "PROVISION", "start_char": 15292, "end_char": 15310, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Trusts Act, 1950", "label": "STATUTE", "start_char": 15318, "end_char": 15341, "source": "regex", "metadata": {}}, {"text": "sections 10 to 13", "label": "PROVISION", "start_char": 16205, "end_char": 16222, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Trusts Act, 1950", "statute": "the Bombay Trusts Act, 1950"}}, {"text": "section 54", "label": "PROVISION", "start_char": 16298, "end_char": 16308, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Trusts Act, 1950", "statute": "the Bombay Trusts Act, 1950"}}, {"text": "Section 2(13)", "label": "PROVISION", "start_char": 18034, "end_char": 18047, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 55(1)", "label": "PROVISION", "start_char": 18249, "end_char": 18262, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 55", "label": "PROVISION", "start_char": 18343, "end_char": 18349, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 55", "label": "PROVISION", "start_char": 18536, "end_char": 18541, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 56(2)", "label": "PROVISION", "start_char": 18575, "end_char": 18583, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 56", "label": "PROVISION", "start_char": 18656, "end_char": 18666, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 56( 1)", "label": "PROVISION", "start_char": 19413, "end_char": 19422, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 56(1)", "label": "PROVISION", "start_char": 19786, "end_char": 19794, "source": "regex", "metadata": {"statute": null}}, {"text": "Pajusan", "label": "OTHER_PERSON", "start_char": 20518, "end_char": 20525, "source": "ner", "metadata": {"in_sentence": "giving and taking of the Swamivatsal feast on the occasion of the holy festival of Pajusan, if not a religious act, is a meritorious act prescribed by the scriptures of Swetambar Murti Pujak Jains."}}, {"text": "Swetambar Murti Pujak Jains", "label": "OTHER_PERSON", "start_char": 20604, "end_char": 20631, "source": "ner", "metadata": {"in_sentence": "giving and taking of the Swamivatsal feast on the occasion of the holy festival of Pajusan, if not a religious act, is a meritorious act prescribed by the scriptures of Swetambar Murti Pujak Jains."}}, {"text": "s. 56(1)", "label": "PROVISION", "start_char": 21044, "end_char": 21052, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 21120, "end_char": 21124, "source": "regex", "metadata": {"statute": null}}, {"text": "Ratila", "label": "OTHER_PERSON", "start_char": 21287, "end_char": 21293, "source": "ner", "metadata": {"in_sentence": "In this view of the matter, it is not necessary to decide, whether B the trust is a trust for religious purposes, and if so, whether, having regard to Ratila/Panachand's case(') its income or surplus balance spendable for the purposes of the trust can be diverted for other purposes, though the original object of the trust can still be carried out."}}, {"text": "Panachand", "label": "OTHER_PERSON", "start_char": 21294, "end_char": 21303, "source": "ner", "metadata": {"in_sentence": "In this view of the matter, it is not necessary to decide, whether B the trust is a trust for religious purposes, and if so, whether, having regard to Ratila/Panachand's case(') its income or surplus balance spendable for the purposes of the trust can be diverted for other purposes, though the original object of the trust can still be carried out."}}, {"text": "Murri Pujak Swetambara", "label": "ORG", "start_char": 21790, "end_char": 21812, "source": "ner", "metadata": {"in_sentence": "What are religious purposes must be decided according to the tenets and religious beliefs of the Murri Pujak Swetambara sect of Jains, to which the testator belonged."}}, {"text": "Jeena Bimba", "label": "OTHER_PERSON", "start_char": 22398, "end_char": 22409, "source": "ner", "metadata": {"in_sentence": "IX of the Report refer E to seven types of religious funds specifically recognised by the Jain scriptures concerning ( 1) Jeena Bimba, (2) Jeena Chaitya,\n\n(3) Gyan Fund, (4) Sadhu, (5) Sadhvi, (6) Shravak and (7) Shravika."}}, {"text": "Jeena Chaitya", "label": "OTHER_PERSON", "start_char": 22415, "end_char": 22428, "source": "ner", "metadata": {"in_sentence": "IX of the Report refer E to seven types of religious funds specifically recognised by the Jain scriptures concerning ( 1) Jeena Bimba, (2) Jeena Chaitya,\n\n(3) Gyan Fund, (4) Sadhu, (5) Sadhvi, (6) Shravak and (7) Shravika."}}, {"text": "Sadhu", "label": "OTHER_PERSON", "start_char": 22450, "end_char": 22455, "source": "ner", "metadata": {"in_sentence": "IX of the Report refer E to seven types of religious funds specifically recognised by the Jain scriptures concerning ( 1) Jeena Bimba, (2) Jeena Chaitya,\n\n(3) Gyan Fund, (4) Sadhu, (5) Sadhvi, (6) Shravak and (7) Shravika."}}, {"text": "Sadhvi", "label": "OTHER_PERSON", "start_char": 22461, "end_char": 22467, "source": "ner", "metadata": {"in_sentence": "IX of the Report refer E to seven types of religious funds specifically recognised by the Jain scriptures concerning ( 1) Jeena Bimba, (2) Jeena Chaitya,\n\n(3) Gyan Fund, (4) Sadhu, (5) Sadhvi, (6) Shravak and (7) Shravika."}}, {"text": "Shravak", "label": "OTHER_PERSON", "start_char": 22473, "end_char": 22480, "source": "ner", "metadata": {"in_sentence": "IX of the Report refer E to seven types of religious funds specifically recognised by the Jain scriptures concerning ( 1) Jeena Bimba, (2) Jeena Chaitya,\n\n(3) Gyan Fund, (4) Sadhu, (5) Sadhvi, (6) Shravak and (7) Shravika.", "canonical_name": "Shravika"}}, {"text": "Shravika", "label": "OTHER_PERSON", "start_char": 22489, "end_char": 22497, "source": "ner", "metadata": {"in_sentence": "IX of the Report refer E to seven types of religious funds specifically recognised by the Jain scriptures concerning ( 1) Jeena Bimba, (2) Jeena Chaitya,\n\n(3) Gyan Fund, (4) Sadhu, (5) Sadhvi, (6) Shravak and (7) Shravika.", "canonical_name": "Shravika"}}, {"text": "s. 56", "label": "PROVISION", "start_char": 22906, "end_char": 22911, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 56(1)", "label": "PROVISION", "start_char": 22980, "end_char": 22988, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 1176", "label": "PROVISION", "start_char": 23491, "end_char": 23500, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 10", "label": "PROVISION", "start_char": 28092, "end_char": 28098, "source": "regex", "metadata": {"statute": null}}, {"text": "Sevashram Hospital", "label": "ORG", "start_char": 28600, "end_char": 28618, "source": "ner", "metadata": {"in_sentence": "The direction for payment of one half of the accumulated amount to the Sevashram Hospital is objectionable on the ground that medical treatment of the poor and deserving is not one of the objects specifically mentioned in cl."}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 28751, "end_char": 28756, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 35", "label": "PROVISION", "start_char": 29561, "end_char": 29566, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Public Trusts Act, 1950", "label": "STATUTE", "start_char": 29574, "end_char": 29604, "source": "regex", "metadata": {}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 29778, "end_char": 29783, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Public Trusts Act, 1950", "statute": "the Bombay Public Trusts Act, 1950"}}, {"text": "Jhaverchand Dahyabhai Shah", "label": "OTHER_PERSON", "start_char": 29799, "end_char": 29825, "source": "ner", "metadata": {"in_sentence": "7 of the will of Jhaverchand Dahyabhai Shah, dated August 6, 1915 in such proportion and in such manner as the trustees think fit and proper."}}, {"text": "August 6, 1915", "label": "DATE", "start_char": 29833, "end_char": 29847, "source": "ner", "metadata": {"in_sentence": "7 of the will of Jhaverchand Dahyabhai Shah, dated August 6, 1915 in such proportion and in such manner as the trustees think fit and proper."}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 30097, "end_char": 30102, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Public Trusts Act, 1950", "statute": "the Bombay Public Trusts Act, 1950"}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 30515, "end_char": 30520, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Public Trusts Act, 1950", "statute": "the Bombay Public Trusts Act, 1950"}}]}
{"document_id": "1965_2_823_829_EN", "year": 1965, "text": "SAHIB SINGH MEHRA v.\n\nSTATE OF UlTAR PRADESH\n\nI anuary 22, 1965\n\n[RAGHUBAR DAYAL AND J. R. MUDHOLKAR, JJ,] Indian Penal Code, 1860 (Act 45 of 1860), ss. 499 and 500--Puf>..\n\nB /Jcation of statement defom<llory of Public prosecuting stafJ at A/Jgarh-\n\nState Government giving sanction for prosecution under s. 198B(c) Code of Criminal Procedure-Whether A/igarh Prosecuting staff a 'collection of persons' within the meaning of Explanation 2, s. 499-Considered\n\nwhether remarks published for public good.\n\nThe appellant published in his paper, which had a circulation mainly in Aligarh, a statement to the effect that Public Prosecutors and Aasi!- C tant Public Prosecutors had been receiving bribes,\n\nThe Public Prosecutor and the 11 Assistant Public Prosecutors at Aligarh obtained the sanction of the State Government as required under s. 198B(c) of Code of Criminal Procedure to file a complaint nnder s. 500 Indian Penal Code in a court of Sessions against the appellant\n\nfor publishing defamatory remarks against the Assistant Public Prosecutor S, of District Aligarh and olher police prooecuting staff of the Govern- D ment in respect of their conduct in the discharge of public functions.\n\nThe Sessions Judge convicted the appellant and the High Court dismissed his appeal against the conviction.\n\nIt was contended on behalf of the appellant, inter alia, that the sanction granted under s. 198B(c) was not the sanction contemplated by law because it was a general sanction and not with respect to the defamation of any particular Public Prosecutor or Assistant Public Prosecutor; for the purpooe of an offence under s. 500 Indian Penal Code the person defamed mu.tt be E an individual or a particular group and there was no evidence that the remarks were defamatory of any particular group; that the prosecution did not lead any evidence to establi.•h that the defamed group had any reputation which could be harmed; and that in any event the remarks were for public good.\n\nHELD : (i) the sanction given by the Government was specifically with respect to the defamation of S, the Assistant Public Prosecutor, Aligarh, and the other prosecuting staJf of the Government and as such F it could not be considered a general sanction not contemplated by law. [826 HJ The sanction given could be taken to be sanction in respect of the defamation of the entire Prosecution staff in the State; there was therefore no force in the contention that the Public Prosecutor was not competent to restrict his complaint to the defamation of S, and other Public Prosecuting staff of the State Government at Aligarh.\n\nFurthermore, G although the impugned article did not contain any express reference to the prosecuting staff at Aligarh, the offending remarks could properly be taken to refer t& the prosecuting staff at Aligarh in the context of the paper being a local weekly and the other circumstances of the case. [827\n\nC.E]\n\n(ii) Explanation II to s. 499 makes it clear that there can be a defamation of an individual pe1'0n and also of a 'collection of persons'.\n\nSuch a collection of persons must be identifiable in the sense that one could H with cartainty say that the particular group had been defamed as distin~ from the rest of the community.\n\nThe prosecuting staft' of Aligarh, and even the prosecuting staff in the State of U.P. would be such an identifiable group or 'collection of persons'. [827 0-H; 828 A-CJ lASup. 65-6\n\n.. :•:-'\n\n824 SUPllBMB COURT llBPORTS\n\n[1965) 2 S.C.R.\n\n(ill) The impugned remarks were per se 'defamatory of the group A of persons referred to. The tenor of the article did not indicate that the purpose of the appellant in publishing these remarks was \"public good''.\n\nNo enquiry could have been started by that Government on such a publication implying the acceptance of bribes by the prosecuting stall'. The impugned remarks could lead readers to believe or suspect that the Public Prosecutors were corrupt and thus affected the reputation of the prosecuting staff adversely.\n\nUnless proved otherwise, the presumption ie S that every person bas a good reputation. [828 E-H]\n\nThe lower courts were therefore right in rejecting the contention that the impugned remarks were protected under Exceptions 3 and 9 to s. 499 I.P.C. and in convicting the appellant. [829 B-D) CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 47 of 1963.\n\nAppeal by special leave from the judgment and order, dated C\n\nJuary 29, 1963 of the Allahabad High Court in Criminal Appeal No. 998 of 1962.\n\nM. K. Ramamurthi, S. C. Agarwal, R. K. Garg and D. P.\n\nSingh, for the appellant.\n\nGirish Chandra and 0. P. Rana, for the respondent.\n\nD The Judgment of the Court was delivered by Kaglmbar Dayal, J.\n\nSahib Singh Mehra, appellant in this appeal by special leave, published an article in his paper 'Kaliyug' of Aligarh, dated September 12, 1960, under the heading \"Ulta Chor Kotwal Ko Dante' which means that a thief reprimanded the E kotwal, a police officer, though the right thing would be the other way. The article contained the following expressions, as translated :\n\n\"How the justice stands at a distance as a helpless spectator of the show as to the manner in which the illicit bribe money from plaintiffs and defendants enters into the pockets of public prosecutors and assistant public prosecutors and the eJttent to which it reaches and to which use it is put\"\n\nThe Public Prosecutor and the eleven Assistant Public Brosecutors at Aligarh requested the Superintendent of Police for G obtaining the sanction of the Government for filing a complaint by the District Government Counsel in the Court of the Session~ Judge under s. 500 l.P.C. The Government was duly approached through proper channel and, ultimately, the Home Secretary, U.P.\n\nGovernment, wrote to the Inspector General, U.P. on March l, 1961 :\n\n\"I am directed to convey the sanction of the State Government under section 198B(c) of the Code of\n\n.A.\n\nCriminal Procedure to the filing of a complaint under section 500 Indian Penal Code in a Court of Sessions, against the Editor and Publisher of the Newspaper 'Kaliyug' of District Aligarh which published a news item under the caption 'Ulta Chor Kotwal Ko Dante' in its issue, dated September 12, 1960 containing defama- B tory remarks against the Assistant Public Prosecutor Sri R K. Sharma of District Aligarh and other police prosecuting staff of the Government in respect of their\n\nconduct in the discharge of public functions.\"\n\nThereafter, the Public Prosecutor of Aligarh filed the complaint C in the Court of Session, Aligarh, praying for the summoning of the accused and for his trial according to law for the offence under s. 500 1.P.C.\n\nThe appellant admitted before the Sessions Judge the publication of the impugned article and stated that he never had any evil intention. He further stated that he had published the news D item for the good of the public and that he had published it in most general terms to bring bad things to the notice of the Government and the authoritit'.s for the public good.\n\nThe Sessions Judge convicted him of the offence under s. 500 l.P.C. holding that the aforesaid statements in the article were defamatory and dial the appellant was not protected by exceptions E 3 and 9 to s. 499 I.P.C. He sentenced the appellant to simple iJ[lprisonment for six months and a fine of Rs. 200. His appeal against the conviction was dismiSscd by the High Court.\n\nOf the points sought to be urged for the appellant, we did not allow one to be urged. It was that there was no proof that the F Government had sanctioned the lodging of the complaint. This point had not been taken in the Courts below and was not even\n\ntaken in the petition for special leave. What was urged in the petition for special leave was that one of the questions of law which arose in the case for consideration was whether the charge framed was the one for which sanction was granted or the requi- G site complaint was filed. This question is very much different from the question whether the Government did grant the sanction or whether the granting of the sanction by the Government had been duly proved in the case.\n\nThe other points urged are : ( 1 ) that the sanction granted was a general sanction and not with respect to the defamation H nf any particular Public Prosecutor or Assistant Public Prosecutor and that such sanction was not contemplated by law; (2) that it is not proved that the appellant had any intention to harm the\n\n}U:-; <::\n\n826 SUPJlBMlt COUil.T RBPOR TS (1965] 2 S.c.R.\n\nreputation of any particular Public Prosecutor or Assistant Public A Prosecutor; ( 3) that there was no evidence that the remarks wdefamatory of any particular group; ( 4) that the prosecution did not lead any evidence to establish that the defamed group had any reputation which could be harmed and ( 5) that the remarks were for public good.\n\nBefore dealing with the contentions raised for the appellant, B\n\nwe may refer to the provisions of law which enable a Public Prosecutor to file a complaint for an offence under s. 500 I.P.C. committed against a public servant. Section 198 Cr. P.C. provides inter alia that no Court shall take cognizance of an offence falling under Chapter XXl (which contains ss. 499 and 500 I.P.C.) c except upon complaint made by some person aggrieved by such offence. Section 198B, however, is an exception to the proYisions of s. 198 and provides that notwithstanding anything contained in the Code, when any offence falling under Chapter XXl of the Indian Penal Code other than the offence of defamation by spoken words is alleged to have been committed against any public D servant, employed in connection with the affairs of a State, in respect of his nduct in the discharge of his public functions, a Court of Session may take cognizance of such offence without the accused being committed to it for trial, upon a complaint in writing made by the Public Prosecutor. It is thus that a Public Prosecutor can file a complaint in writing in the Court of Session E directly with respect to an offence under s. 500 I.P.C. committed against a public servant in respect of his conduct in the discharge of his public functions. Sub-s. ( 3) of s. l 98B provides that na complaint under sub-s. ( l ) shall be made by the Public Prosecutor except with the previous sanction of the Government concerned for the filing of a complaint under s. 500 I.P.C. The sanction F referred to above, in this case, and conveyed by the Home Secretary to the Inspector-General of Police, was a sanction for making a complaint under s. 500 I.P.C. against the appellant with respect to the article under the heJ!ding 'Ulta Chor Kotwal Ko Dante', in the issue of 'Kaliyug', dated Septembc:r 12, 1960, containing defamatory remarks against the Assistant Public Prosecu- G tor, R. K. Sharma, of Aligarh, and other prosecuting staff of the Government in respect of their conduct in the discharge of public functions. The sanction was therefore with respect to defamation of two persons (i) R. K. Sharma, Assistant Public Prosecutor, Aligarh; and (ii) the other police prosecuting staff of Government of Uttar Pradesh, which would be the entire prosecuting staff in H the State.\n\nThere was thus nothing wrong in the form of the sanction.\n\n.A The case did not proceed with respect to the defamation of R. K. Sharma, Assistant Public Prosecutor, as such. We may, however, here indicate in brief this reference to the defamation of R. K. Sharma. The appellant published sometime in May 1960 something which was defamatory of R. K. Sharma. R. K. Sharma filed a complaint about it in September 1960.\n\nThe impugned B article had stated, prior to the remarks to which objection has\n\nbeen taken, the publication of the earlier article and the news\n\nreaching the Editor that R. K. Sharma was contemplating taking action in a Court of law and then expressed that the Editor welcomed the news and would show how the bribe money reaches the Public Prosecutors, how it is utilised and _how justice sees ail C this show from a distance. The Public Prosecutor, however, in his complaint, restricted it to the defamation of R. K. Sharma and other police prosecuting staff of the U .P. Government at Aligarh.\n\nIt is not possible to say that he was not compe<ent to do so, when the sanction by the Government could be taken to be sanction for the defamation of the entire prosecuting staff D in the State of Uttar Pradesh, there being no such express statement in the article as to restrict the imputation to the staff at Aligarh alone and when the remarks could be properly taken to be with reference to the prosecuting staff at Aligarh in the context of 'Kaliyug' being a local weekly and the desire of the Editor to make public all these matters in a Court in proceedings to be E started by R. K. Sharma in view of certain matter published about him in an earlier issue of the paper. We therefore do not coni; ider that the sanction suffered from any defect.\n\nThe next question to determine is whether it is essential for the purpose of an offence under s. 500 1.P.C. that the person F defamed must be an individual and that the prosecuting staff at Aligarh or of the State of Uttar Pradesh could not be said to be a 'person' which could be defamed.\n\nSection 499 1.P.C. defines 'defamation' 'and provides inter aliiz that whoever makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will G harm, the reputation of such person, is said, except in cases covered by the exceptions to the Section, to defame that person.\n\nExplanation 2 provides that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. It is clear therefore that there could be H defamation of an individual person and also of a collection of persons as such. The contention for the appellant then reduces itself to the question whether the prosecuting staff at Aligarh can\n\nbe considered to be such a collection of persons as is contem-\n\n828 SUP.ll!MB OOUllT REPORTS [1965] 2 S.C.ll.\n\nplated by Explanation 2. The language of Explanation 2 is general A and any collection of persons would be covered by it. Of course. that collection of persons must be identifiable in the sense that one could, with certainty, say that this group of particular people has been defamed, as distinguished from the rest of the community.\n\nThe prosecuting stall of Aligarh or, as a matter of fact, the prosecuting stall in the State of Uttar Pradesh, is certainly B such an identifiable group or collection of persons.\n\nThere is nothing indefinite about it. This group consists of all members of the prosecuting stall in the service of the Government of Uttar Pradesh. Within this general group of Public Prosecutors of U.P. there is again an identifiable group of prosecuting stall, consisting C of Public Prosecutors and Assistant Public Prosecutors, at Aligarh.\n\nThis group of persons would be covered by Explanation 2 and could therefore be the subject of defamation.\n\nWe have not been referred to any case relating to s. 499 LP.C. in support of the contention for the appellant that the Public Prosecutor and Assistant Public Prosecutors at Aligarh could not D form such a body of persons as would be covered by Explanation 2 to s. 499 I.P.C.\n\nThe impugned remarks are per se defamatory of the group f persons referred to. It is no defence-and it has not been urged as defence-that the remarks were true. The defence in the I: Courts below was that they were for public good and the appellant was protected under Exceptions 3 and 9, of s. 499 I.P.C. The tenor of the article does not indicate that the purpose of the appellant in publishing these remarks was 'public good'.\n\nAccording to the article. the appellant would have welcomed the opportunity that would be offered by the case contemplated against him by F R. K. Sharma, to make public the impugned matters. His remarks therefore could have the tendency to dissuade R. K. Sharma from instituting the proceedings for fear of giving greater currency to untrue allegations which be not favourable to him or to the prosecuting stall at Aligarh or in the State, and by themselves could not render any public good. No enquiry could have been started G by the Government on such a publication implying the passing of money from the pockets of certain set of people to the pockets of the prosecuting staff.\n\nThe impugned remarks could certainly lead the readers of the article to believe or suspect that the prosecuting staff is corrupt in the discharge of its duties as public prosecutors, and are thus bound to affect the reputation of the H prosecuting staff adversely. Unless proved otherwise, the presumption is that every person has a good reputation. In this case, the\n\n-'<S\n\nSAHIB SINGH V. STATB (Dayal, J.) 829\n\nA Public Prosecutor and Assistant Public Prosecutor had deposed\n\nthat they are not corrupt, and according to their knowledge, none at Aligarh, is corrupt in the discharge of his duty. There is no evidence to the contrary.\n\nException 3 to s. 499 I.P.C. comes into play when some defamatory remark is made in good faith. Nothing has been brought on the record to establish that those defamatory remarks were made by the appellant after due care and attention and so, in good faith.\n\nException 9 gives protection to putations made in good faith for the protection of the interest of the person making it or of any C other person or for the public good. . The appellant has not established his good faith and, as we have said above, the imputations could not have been said to have been made for the public good.\n\nWe are therefore of opinion that the appellant has been rightly D held to have committed the offence under s. 500 l.P.C. by defaming the Public Prosecutor and Assistant Public Prosecutors at Aligarh.\n\nIt is urged for the appellant that the sentence is severe. and be reduced to the period of imprisonment already undergone. We do E not see any justification for reducing the sentence. The Press has great power in impressing the minds of the people and it is essential that persons responsible for publishing anything in newspapers should take good care before publishing anything which tends to harm the reputation of a person. Reckless comments are to be avoided. When one is proved to have made defamatory comments F with an ulterior motive and without the least justification motivated by self-interest, he deserves a deterrent sentence.\n\nWe dismiss the appeal. The appellant will surrender to his bail.\n\nAppeal dismissed.", "total_entities": 72, "entities": [{"text": "SAHIB SINGH MEHRA", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "SAHIB SINGH MEHRA", "offset_not_found": false}}, {"text": "STATE OF UlTAR PRADESH", "label": "RESPONDENT", "start_char": 22, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "STATE OF UlTAR PRADESH", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL", "label": "JUDGE", "start_char": 66, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL*", "offset_not_found": false}}, {"text": "R. MUDHOLKAR, JJ", "label": "JUDGE", "start_char": 88, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "Indian Penal Code, 1860", "label": "STATUTE", "start_char": 107, "end_char": 130, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 499 and 500", "label": "PROVISION", "start_char": 149, "end_char": 164, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code, 1860", "statute": "Indian Penal Code, 1860"}}, {"text": "s. 198B(c)", "label": "PROVISION", "start_char": 306, "end_char": 316, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code, 1860", "statute": "Indian Penal Code, 1860"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 317, "end_char": 343, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 499", "label": "PROVISION", "start_char": 441, "end_char": 447, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code, 1860", "statute": "Indian Penal Code, 1860"}}, {"text": "Aligarh", "label": "GPE", "start_char": 765, "end_char": 772, "source": "ner", "metadata": {"in_sentence": "The appellant published in his paper, which had a circulation mainly in Aligarh, a statement to the effect that Public Prosecutors and Aasi!- C tant Public Prosecutors had been receiving bribes,\n\nThe Public Prosecutor and the 11 Assistant Public Prosecutors at Aligarh obtained the sanction of the State Government as required under s. 198B(c) of Code of Criminal Procedure to file a complaint nnder s. 500 Indian Penal Code in a court of Sessions against the appellant\n\nfor publishing defamatory remarks against the Assistant Public Prosecutor S, of District Aligarh and olher police prooecuting staff of the Govern- D ment in respect of their conduct in the discharge of public functions."}}, {"text": "s. 198B(c)", "label": "PROVISION", "start_char": 837, "end_char": 847, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code, 1860", "statute": "Indian Penal Code, 1860"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 851, "end_char": 877, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 500", "label": "PROVISION", "start_char": 904, "end_char": 910, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code, 1860", "statute": "Indian Penal Code, 1860"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 911, "end_char": 928, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 198B(c)", "label": "PROVISION", "start_char": 1393, "end_char": 1403, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 500", "label": "PROVISION", "start_char": 1622, "end_char": 1628, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 1629, "end_char": 1646, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 499", "label": "PROVISION", "start_char": 2941, "end_char": 2947, "source": "regex", "metadata": {"statute": null}}, {"text": "U.P.", "label": "GPE", "start_char": 3326, "end_char": 3330, "source": "ner", "metadata": {"in_sentence": "The prosecuting staft' of Aligarh, and even the prosecuting staff in the State of U.P. would be such an identifiable group or 'collection of persons'. ["}}, {"text": "s. 499", "label": "PROVISION", "start_char": 4241, "end_char": 4247, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 4248, "end_char": 4253, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 4449, "end_char": 4469, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order, dated C\n\nJuary 29, 1963 of the Allahabad High Court in Criminal Appeal No."}}, {"text": "M. K. Ramamurthi", "label": "OTHER_PERSON", "start_char": 4507, "end_char": 4523, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, S. C. Agarwal, R. K. Garg and D. P.\n\nSingh, for the appellant."}}, {"text": "S. C. Agarwal", "label": "OTHER_PERSON", "start_char": 4525, "end_char": 4538, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, S. C. Agarwal, R. K. Garg and D. P.\n\nSingh, for the appellant."}}, {"text": "R. K. Garg", "label": "OTHER_PERSON", "start_char": 4540, "end_char": 4550, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, S. C. Agarwal, R. K. Garg and D. P.\n\nSingh, for the appellant."}}, {"text": "D. P.\n\nSingh", "label": "OTHER_PERSON", "start_char": 4555, "end_char": 4567, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, S. C. Agarwal, R. K. Garg and D. P.\n\nSingh, for the appellant."}}, {"text": "Girish Chandra", "label": "OTHER_PERSON", "start_char": 4589, "end_char": 4603, "source": "ner", "metadata": {"in_sentence": "Girish Chandra and 0."}}, {"text": ". P. Rana", "label": "LAWYER", "start_char": 4609, "end_char": 4618, "source": "ner", "metadata": {"in_sentence": "Girish Chandra and 0."}}, {"text": "Kaglmbar Dayal", "label": "JUDGE", "start_char": 4686, "end_char": 4700, "source": "ner", "metadata": {"in_sentence": "D The Judgment of the Court was delivered by Kaglmbar Dayal, J.\n\nSahib Singh Mehra, appellant in this appeal by special leave, published an article in his paper 'Kaliyug' of Aligarh, dated September 12, 1960, under the heading \"Ulta Chor Kotwal Ko Dante' which means that a thief reprimanded the E kotwal, a police officer, though the right thing would be the other way."}}, {"text": "Sahib Singh Mehra", "label": "PETITIONER", "start_char": 4706, "end_char": 4723, "source": "ner", "metadata": {"in_sentence": "D The Judgment of the Court was delivered by Kaglmbar Dayal, J.\n\nSahib Singh Mehra, appellant in this appeal by special leave, published an article in his paper 'Kaliyug' of Aligarh, dated September 12, 1960, under the heading \"Ulta Chor Kotwal Ko Dante' which means that a thief reprimanded the E kotwal, a police officer, though the right thing would be the other way.", "canonical_name": "SAHIB SINGH MEHRA"}}, {"text": "s. 500", "label": "PROVISION", "start_char": 5639, "end_char": 5645, "source": "regex", "metadata": {"statute": null}}, {"text": "March l, 1961", "label": "DATE", "start_char": 5806, "end_char": 5819, "source": "ner", "metadata": {"in_sentence": "The article contained the following expressions, as translated :\n\n\"How the justice stands at a distance as a helpless spectator of the show as to the manner in which the illicit bribe money from plaintiffs and defendants enters into the pockets of public prosecutors and assistant public prosecutors and the eJttent to which it reaches and to which use it is put\"\n\nThe Public Prosecutor and the eleven Assistant Public Brosecutors at Aligarh requested the Superintendent of Police for G obtaining the sanction of the Government for filing a complaint by the District Government Counsel in the Court of the Session~ Judge under s. 500 l.P.C. The Government was duly approached through proper channel and, ultimately, the Home Secretary, U.P.\n\nGovernment, wrote to the Inspector General, U.P. on March l, 1961 :\n\n\"I am directed to convey the sanction of the State Government under section 198B(c) of the Code of\n\n.A.\n\nCriminal Procedure to the filing of a complaint under section 500 Indian Penal Code in a Court of Sessions, against the Editor and Publisher of the Newspaper 'Kaliyug' of District Aligarh which published a news item under the caption 'Ulta Chor Kotwal Ko Dante' in its issue, dated September 12, 1960 containing defama- B tory remarks against the Assistant Public Prosecutor Sri R K. Sharma of District Aligarh and other police prosecuting staff of the Government in respect of their\n\nconduct in the discharge of public functions.\""}}, {"text": "section 198B(c)", "label": "PROVISION", "start_char": 5891, "end_char": 5906, "source": "regex", "metadata": {"statute": null}}, {"text": "section 500", "label": "PROVISION", "start_char": 5982, "end_char": 5993, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 5994, "end_char": 6011, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "R K. Sharma", "label": "LAWYER", "start_char": 6307, "end_char": 6318, "source": "ner", "metadata": {"in_sentence": "The article contained the following expressions, as translated :\n\n\"How the justice stands at a distance as a helpless spectator of the show as to the manner in which the illicit bribe money from plaintiffs and defendants enters into the pockets of public prosecutors and assistant public prosecutors and the eJttent to which it reaches and to which use it is put\"\n\nThe Public Prosecutor and the eleven Assistant Public Brosecutors at Aligarh requested the Superintendent of Police for G obtaining the sanction of the Government for filing a complaint by the District Government Counsel in the Court of the Session~ Judge under s. 500 l.P.C. The Government was duly approached through proper channel and, ultimately, the Home Secretary, U.P.\n\nGovernment, wrote to the Inspector General, U.P. on March l, 1961 :\n\n\"I am directed to convey the sanction of the State Government under section 198B(c) of the Code of\n\n.A.\n\nCriminal Procedure to the filing of a complaint under section 500 Indian Penal Code in a Court of Sessions, against the Editor and Publisher of the Newspaper 'Kaliyug' of District Aligarh which published a news item under the caption 'Ulta Chor Kotwal Ko Dante' in its issue, dated September 12, 1960 containing defama- B tory remarks against the Assistant Public Prosecutor Sri R K. Sharma of District Aligarh and other police prosecuting staff of the Government in respect of their\n\nconduct in the discharge of public functions.\"", "canonical_name": "R. K. Sharma"}}, {"text": "s. 500", "label": "PROVISION", "start_char": 6660, "end_char": 6666, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 500", "label": "PROVISION", "start_char": 7097, "end_char": 7103, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 499", "label": "PROVISION", "start_char": 7248, "end_char": 7254, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7255, "end_char": 7260, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 500", "label": "PROVISION", "start_char": 9051, "end_char": 9057, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 9058, "end_char": 9063, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 198", "label": "PROVISION", "start_char": 9101, "end_char": 9112, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "ss. 499 and 500", "label": "PROVISION", "start_char": 9234, "end_char": 9249, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 9250, "end_char": 9255, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 198B", "label": "PROVISION", "start_char": 9329, "end_char": 9341, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 198", "label": "PROVISION", "start_char": 9389, "end_char": 9395, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Chapter XXl of the Indian Penal Code", "label": "STATUTE", "start_char": 9493, "end_char": 9529, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 500", "label": "PROVISION", "start_char": 10068, "end_char": 10074, "source": "regex", "metadata": {"linked_statute_text": "Chapter XXl of the Indian Penal Code", "statute": "Chapter XXl of the Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 10075, "end_char": 10080, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 500", "label": "PROVISION", "start_char": 10392, "end_char": 10398, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 10399, "end_char": 10404, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 500", "label": "PROVISION", "start_char": 10569, "end_char": 10575, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 10576, "end_char": 10581, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Septembc:r 12, 1960", "label": "DATE", "start_char": 10714, "end_char": 10733, "source": "ner", "metadata": {"in_sentence": "Sub-s. ( 3) of s. l 98B provides that na complaint under sub-s. ( l ) shall be made by the Public Prosecutor except with the previous sanction of the Government concerned for the filing of a complaint under s. 500 I.P.C. The sanction F referred to above, in this case, and conveyed by the Home Secretary to the Inspector-General of Police, was a sanction for making a complaint under s. 500 I.P.C. against the appellant with respect to the article under the heJ!ding 'Ulta Chor Kotwal Ko Dante', in the issue of 'Kaliyug', dated Septembc:r 12, 1960, containing defamatory remarks against the Assistant Public Prosecu- G tor, R. K. Sharma, of Aligarh, and other prosecuting staff of the Government in respect of their conduct in the discharge of public functions."}}, {"text": "R. K. Sharma", "label": "LAWYER", "start_char": 10810, "end_char": 10822, "source": "ner", "metadata": {"in_sentence": "Sub-s. ( 3) of s. l 98B provides that na complaint under sub-s. ( l ) shall be made by the Public Prosecutor except with the previous sanction of the Government concerned for the filing of a complaint under s. 500 I.P.C. The sanction F referred to above, in this case, and conveyed by the Home Secretary to the Inspector-General of Police, was a sanction for making a complaint under s. 500 I.P.C. against the appellant with respect to the article under the heJ!ding 'Ulta Chor Kotwal Ko Dante', in the issue of 'Kaliyug', dated Septembc:r 12, 1960, containing defamatory remarks against the Assistant Public Prosecu- G tor, R. K. Sharma, of Aligarh, and other prosecuting staff of the Government in respect of their conduct in the discharge of public functions.", "canonical_name": "R. K. Sharma"}}, {"text": "Government of Uttar Pradesh", "label": "ORG", "start_char": 11120, "end_char": 11147, "source": "ner", "metadata": {"in_sentence": "The sanction was therefore with respect to defamation of two persons (i) R. K. Sharma, Assistant Public Prosecutor, Aligarh; and (ii) the other police prosecuting staff of Government of Uttar Pradesh, which would be the entire prosecuting staff in H the State."}}, {"text": "U .P. Government", "label": "ORG", "start_char": 12193, "end_char": 12209, "source": "ner", "metadata": {"in_sentence": "The Public Prosecutor, however, in his complaint, restricted it to the defamation of R. K. Sharma and other police prosecuting staff of the U .P. Government at Aligarh."}}, {"text": "Uttar Pradesh", "label": "GPE", "start_char": 12420, "end_char": 12433, "source": "ner", "metadata": {"in_sentence": "It is not possible to say that he was not compe<ent to do so, when the sanction by the Government could be taken to be sanction for the defamation of the entire prosecuting staff D in the State of Uttar Pradesh, there being no such express statement in the article as to restrict the imputation to the staff at Aligarh alone and when the remarks could be properly taken to be with reference to the prosecuting staff at Aligarh in the context of 'Kaliyug' being a local weekly and the desire of the Editor to make public all these matters in a Court in proceedings to be E started by R. K. Sharma in view of certain matter published about him in an earlier issue of the paper."}}, {"text": "s. 500", "label": "PROVISION", "start_char": 13069, "end_char": 13075, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Uttar Pradesh", "label": "GPE", "start_char": 13183, "end_char": 13205, "source": "ner", "metadata": {"in_sentence": "The next question to determine is whether it is essential for the purpose of an offence under s. 500 1.P.C. that the person F defamed must be an individual and that the prosecuting staff at Aligarh or of the State of Uttar Pradesh could not be said to be a 'person' which could be defamed."}}, {"text": "Section 499", "label": "PROVISION", "start_char": 13266, "end_char": 13277, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 499", "label": "PROVISION", "start_char": 15134, "end_char": 15140, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 499", "label": "PROVISION", "start_char": 15345, "end_char": 15351, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 15352, "end_char": 15357, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 499", "label": "PROVISION", "start_char": 15652, "end_char": 15658, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 15659, "end_char": 15664, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "K. Sharma", "label": "OTHER_PERSON", "start_char": 15934, "end_char": 15943, "source": "ner", "metadata": {"in_sentence": "the appellant would have welcomed the opportunity that would be offered by the case contemplated against him by F R. K. Sharma, to make public the impugned matters."}}, {"text": "SAHIB SINGH V. STATB", "label": "JUDGE", "start_char": 16849, "end_char": 16869, "source": "ner", "metadata": {"in_sentence": "In this case, the\n'<S\n\nSAHIB SINGH V. STATB (Dayal, J.) 829\n\nA Public Prosecutor and Assistant Public Prosecutor had deposed\n\nthat they are not corrupt, and according to their knowledge, none at Aligarh, is corrupt in the discharge of his duty."}}, {"text": "s. 499", "label": "PROVISION", "start_char": 17125, "end_char": 17131, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 17132, "end_char": 17137, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 500", "label": "PROVISION", "start_char": 17804, "end_char": 17810, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}]}
{"document_id": "1965_2_830_836_EN", "year": 1965, "text": "UNION OF INDIA v.\n\nSREE RAM BOHRA AND OTHERS\n\nJanuary 29, 1965\n\n[RAGHUBAR DAYAL, R. S. BACHAWAT AND\n\nV. RAMASWAMY, JJ.J\n\nHindu Ltw-Suit by two persons representing joint Hindu family- Dealh of on~Appea/ against the otMr-1/ competenl-C111le of Civil ProcedlJ1'e (Act S of 1908), 0.22. r. 11.\n\nThe respondent and B filed a suit and obtained a decree for a certain SlllD against the appellant.\n\nThe appellant appealed to the High Court !Jld subsequently B died.\n\nThe High Court dismissed an applica- C lion setting aside the abatement of the appeal against B and for substitution as it was of opinion that there had been gross negligence on the part of the appellant. When the appeal came up for hearing a preliminary objection was raised by the respondent that the appeal had abated entirely which was upheld by the High Court. On appeal by certificate, the appellants contended that there could be no abatement of the appeal as the suit had been brought by the respondent and B as the Kartas of the D joint family and on the death of one of the Karta, the other Karla continued to represent the joint family, the real plaintiff-respondent.\n\nHELD : The appeal against the respondent was incompetent.\n\nWhen two representatives of a joint Hindu family sued and obtained a decree in their favour for the benefit of the joint Hindu family, and an appeal was filed against both of them as respondents representing the joint Hindu family, the other representative would not continue to repre- I: seat the joint family on the death of one of the representatives. [835\n\nB-DJ\n\nAny one of them could not represent the joint f8lD11y after the death of the other till his authority to represent the family was confirmed by\n\nthe members of the family. [835 F-G]\n\nThe State of Punjab v. Nathu Ram, [1962] 2 S.C.R. 636, relied on.\n\nF CML APPELLATE JURISDICTION: Civil Appeal No. 611 of 1962.\n\nAppeal by special leave from the judgment and decree dated February 11, 1959, of the Patna High Court in Appeal from Original Decree No. 525 of 1951.\n\nBishan Narain, D. R. Prem. B. R. G. K. Achlll' and R. N.\n\nG Sachthey, for the appellant.\n\nA. V. Viswanatha Sostri and K. K. Sinha, for respondents Nos. 1 to 5.\n\nThe Judgment of the Court was delivered by\n\nRaghubar Dayal J.\n\nBilas Rai Bohra, son of Bansidhar Bohra and Sree Ram Bohra, son of Ganpat Ram Bohra, sued the Union of India for the recovery of Rs. 13,448 from the defendant tor\n\nUNION V. RAM BORRA (Dayal, /.) 831\n\nA compensation on account of loss and damage suffered by the plaintifts owing to non-delivery of 11 bales of cloth which had been consigned on October 20, 1948 by M/s Ram Kishun Das Sagarmal of Bombay to the plaintiffs under the description of M/ s Banshidhar Ganpat Rai. It was alleged in para 1 of the plaint that the plaintiffs . carried on business in cloth and other articles in the B name and style of M/s Bansidhar Ganpat Rai which was their\n\njoint family trading firm governed by the Mitakshara School of Hindu Law of which joint family the plaintiffs were the kartas and representatives and that they sued as such.\n\nThis statement in para 1 of the plaint was not admitted in the written statement.\n\nC The trial Court decreed the suit on August 29, 1951. The decree, inter alia, said :\n\n\"It is ordered that the suit be decreed with costs defendants do pay to the plaintiffs the sum of Rs. 13,448 with interest thereon ... \"\n\nD The Union of India appealed to the High Court of Patna and prayed for the setting aside of the decree and for the dismissal of the suit with costs.\n\nThe plaintiffs-respondents were served with notice of the appeal. Subsequently Bilas Rai Bohra died on July 24, 1957. On September 5, 1958, the Union of India presented an application for substitution under 0. 22, r. 4 read with 0. 22, r. 11, E C.P.C. for setting aside the abatement and condonation of delay.\n\nIt was stated in the application that the applicant's advocate came to know of the death of Bilas Rai Bohra, plaintiff No. 1, on May 14, 1958 when the case was on the daily list with a note to that effect, that he promptly communicated the fact to the railway authorities but due to the mistake of the Attacher, proper steps P for substitution could not be taken in time. It was further stated that after a good deal of enquiry and efforts for three days the date of the death of Bilas Rai Bohra and the names and addresses of his heirs and legal representatives could be ascertained.\n\nA prayer was made for substituting the heirs of Bilas Rai Bohra, G they being his sons, a widow and a daughter. Their names were mentioned in the application. ·\n\nThis application was opposed on behalf of the heirs of Bilas Rai Bohra. It was mentioned therein that on September 27, 1957, an application for substitution of the heirs of Bilas Rai Bohra was made in another , appeal in which the Union of India was a respon- H dent and that therefore the Union of India and its Advocate were aware of the death of Bilas Rai Bohra and of the names of his heirs .\n\nSUPRBMI! COURT RBPORTS\n\n\nOn December l, 1958, the High Court dismissed the applica- A tion for the setting aside of the abatement of the appeal against Bilas Rai Bohra and for the substitution of the heirs as it was of opinion that there had been gross negligence on the part of the appellant, the Union of India, as its counsel had information about the death of Bilas Rai Bohra at least on May 16, 1958. Tho High Court did not feel satisfied on the facts of the case that any B ground had been made out for setting aside the abatement of the appeal.\n\nIt may be mentioned here that it was not urged in the High Court that there had been no abatement of the appeal against the heirs and legal representatives of Bilas Rai Bohra. It could not C have been urgM when the Union of India itself had applied for the setting aside of the abatement and the substitution of the heirs and legal representatives of Bilas Rai Bohra.\n\nThe appeal of the Union of India against the surviving respon- 0 dent, viz., Sree Ram Bohra, came up for hearing on February 11, 1959, when a prelin; linary objection was raised on behalf of the respondent to the effect that the appeal had abated entirely as it had abated against the heirs of plaintiff-respondent No. 1.\n\nIt was contended for the Union of India that the two plaintiffs, viz. ..\n\nBilas Rai Bohra, deceased, and Sree Ram Bohra, had filed the E suit as kartas of the joint family which was the owner of the firm of M / s Bansidhar Ganpat Rai and that after the death of one of the kartas the other plaintiff who was also described in the plaintiff's suit as karta was competent to represent the family and so there could be no question of abatement of the entire appeal.\n\nAgain, it was not contended that the appeal against the heirs of F Bilas Rai Bohra had not abated.\n\nThe High Court upheld the preliminary objection and held that the appeal had become incompetent and was liable to be dismissed. It was of opinion that even if it be taken that both th plaintiffs had filed the suit in their capacity as kartas of the G 'Same joint family, the joint family had gained by virtue of the appeal having abated against the heirs of Bilas Rai Bohra as the decree passed in favour of the joint family through the representation of Bilas Rai Bohra could not be set aside and in case the appeal was permitted to proceed against the joint family in the presence of the other karta Sree Ram Bohra, there might be H occasion for the coming into existence of two inconsistent decrees.\n\nThe High Court, accordingly, dismissed the appeal. It was against\n\nUNION v. RAM BOHRA (Dayal, J.) 833\n\nA this order that the Union of India obtained the certificate from the High Court under Art. 13 3 and then filed this appeal.\n\nThe sole point for decision in the appeal then is whether the appeal of the Union of India before the High Court against the respondent Sree Ram Bohra, respondent No. 2, was competent B after it had abated against respondent No. l, Bilas Rai Bohra, on\n\naccount of his heirs and legal representatives being not brought on the record. It has not been disputed for the appellant that in case it is held that the appeal had abated against the heirs and legal representatives of Bilas Rai Bohra, it became incompetent against the surviving respondent alone.\n\nThe suit was filed by c both the plaintiffs.\n\nBoth were respondents in the appeal. The decree was a joint one, without any specification regarding the shares of each of the decree-holders. The appeal must, therefore, become incompetent if it has abated against one of the respondents.\n\nD What is really urged for the appellant is that there could be no abatement of the appeal on the death of Sree Ram Bohra and the omission to bring on record his heirs and representatives, as the real plaintiff was the joint family which owned the firm Bansidhar Ganpat Rai, the consignee of the bales which were not delivered and as the suit had been brought by the two named plaintiffs as :& the kartas of the joint family. It is said that on the death of one of the kartas, the other .karta continued to represent the joint family, the real plaintiff-re5pondent, and that therefore there could not be any abatement of the appeal. We do not consider the contention sound. ·\n\nWe have not been referred to any text of Hindu Law or any F decided case in support of the proposition that a joint Hindu family can have more than one .karta. The very idea of there being two .kartas of a joint Hindu family does not appear, prima facie, consistent with the concept of a karta.\n\nTheir describing themselves as kartas of the joint Hindu family owning the firm and G their suing as such cannot make them kartas of the joint Hindu family if the Hindu Law does not contemplate the existence of two kartas.\n\nIn paragraph 236 of Mulla's Hindu Law, XII Edition, is said :\n\n\"Property belonging to a joint family is ordinarily managed by the father or other senior member for the time being of the family. The manager of a joint family is called karta.\n\n8S4 SUPl.J!MB COUllT REPORTS\n\n[1965) 2 S.C.R.\n\nThe father is in all cases naturally, and in the case of A minor sons necessarily, the manager of the joint family property.\"\n\nThe existence of two kartas cannot lead to the smooth managoment of the property of the joint Hindu family and the other affairs of the family in view of the powers which the karta of a joint 8 Hindu family possesses under the Hindu Law, powers which are not restricted to only such powers which ordinarily the manager of property of certain persons who confer authority on him to manage the property possesses.\n\nThe karta of the joint Hindu family is certainly the manager of the family property but undoubtedly possesses powers which the ordinary manager does not C possess.\n\nThe karta cannot therefore be just equated with the manager of property.\n\nReference was made to the case reported as Bhagwan Dayal\n\nv. Mst. Reoti Devi('). It was stated at p. 482:\n\n\"The legal position may be stated thus : Coparcenary is a creature of Hindu law and cannot be created by agreement of parties eitcept in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, 1ioid and dispose of family property subject to the limitations laid down by law. Ordinarily the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the limitations'Jaid down by the said law, for or on behalf of the family.\"\n\nThe fact that any other member or members other than the manager of the joint Hindu family, carry on business etc., on behalf of the family, does not mean that such members who act for the family do so as kartas of the family.\n\nIn the absence of any text of Hindu Jaw or of any previous decision that a joint Hindu family can have two kartas we are not prepared to express any definite opinion on the question whether there can be two kartas of a joint Hindu family and, if there can\n\nbe two kartas, what would be the effect of the death of one of H them on the maintainability of a suit brought by both of them.\n\n(1) 11962] 3 s.c.R. 440.\n\nUNION v. RAM BHORA (D11Yal, J.) 835\n\nA Two persons may look after the affairs of a joint Hindu family on the basis of the members of the joint Hindu family clothing them with authority to represent the family. They would be two persons entitled to represent the family and their power to represent would depend on the terms of the authority conferred on them by the members of the joint Hindu family. Their authority to act B for the family is not derived under any principle of Hindu law, but is based on the members of the joint Hindu family conferring certain authority on them. It cannot, therefore, be said that when two such representatives of a joint Hindu family sue and obtain a decree in their favour for the benefit of the joint Hindu family, and an appeal is filed against both of them as respondents repre- C senting the joint Hindu family, the other representative would continue to represent the joint family on the death of one of the representatives. He could not possibly do so when the authority given by the joint Hindu family be to the effect that both of them were to act jointly. In the absence of any knowledge about the D terms of authority of the two representatives, it is not possible to urge successfully that on the death of one of the representatives, the other representative still continued to represent the joint Hindu family. On the death of one of the representatives, the karta of • the family, in accordance with the principles of Hindu law, will automatically be the person entitled to represent the joint Hindu J: family till such time that the family again decides to confer the authority on specified members of the joint Hindu family to represent it. There is no material on the record to indicate the terms and scope of the authority conferred on the two plaintiffs by the joint Hindu family.\n\nF We, therefore, consider the matter in appeal on the basis that the suit was brought by two persons as plaintiffs.\n\nThey can at best be taken to represent the joint Hindu family which owned that firm Bansidhar Ganpat Rai. Any one of them cannot represent the joint family after the death of the other till his authority to represent the family is confirmed by the members of the G family. There is no allegation or proof about such confirmation or fresh vesting of authority in the second plaintiff, viz., Sree Ram Bohra. For the purpose of the suit, there were two plaintiffs and on the death of one of them it was necessary for the opposite party to implead his heirs and legal representatives within time. It failed to do so and therefore the appeal against those heirs and repre- H sentatives of Bilas Rai Bohra was rightly held to have abated. 1be result of such abatement makes this appeal against the other respondent incompetent as the decree against both the respon-\n\n836 SUPllBMB COURT llBPORTS\n\n[196S] 2 S.C.R.\n\ndents viz .• Bilas Rai Bohra and Sree Ram Bohra was a joint decree.\n\nA There was nothing in the decree to indicate for whose benefit it was passed or in what proportions the two decree-holders were to get the decretal amount.\n\nThe appeal against Sree Ram Bohra was therefore incompetent.\n\nThis view is supported by the decision of this Court in The B State of Punjab v. Nathu Ram('). It was held there that whe.n the decree in favour of the respondents is joint and indivisible, the appeal against the respondents other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has abated.\n\nWe are, therefore, of opinion that the High Court was right C in holding that the appeal against Sree Ram Bohra alone became incompetent.\n\nIt has been further argued for the appellant that the High Court should have allowed the appellant's application for setting aside the abatement.\n\nThe High Court exercised its discretion D judiciously, after taking into consideration the facts urged in support of the prayer that the abatement of the appeal be set aside.\n\nWe do not find any reason to consider that the discretion was not properly exercised. We, therefore, do not consider this a fit case\n\nto interfere with the discretion exercised by the High Court in this regard.\n\nWe, therefore, dismiss the appeal with costs.\n\nAppeal dimiimd.\n\n(1) [1962] 2 S.C. R. 636.", "total_entities": 43, "entities": [{"text": "UNION OF INDIA", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "SREE RAM BOHRA AND OTHERS", "label": "RESPONDENT", "start_char": 19, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "SREE RAM BOHRA AND OTHERS", "offset_not_found": false}}, {"text": "January 29, 1965", "label": "DATE", "start_char": 46, "end_char": 62, "source": "ner", "metadata": {"in_sentence": "UNION OF INDIA v.\n\nSREE RAM BOHRA AND OTHERS\n\nJanuary 29, 1965\n\n[RAGHUBAR DAYAL, R. S. BACHAWAT AND\n\nV. RAMASWAMY, JJ.J\n\nHindu Ltw-Suit by two persons representing joint Hindu family- Dealh of on~Appea/ against the otMr-1/ competenl-C111le of Civil ProcedlJ1'e (Act S of 1908), 0.22."}}, {"text": "RAGHUBAR DAYAL", "label": "JUDGE", "start_char": 65, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 81, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "[1962] 2 S.C.R. 636", "label": "CASE_CITATION", "start_char": 1782, "end_char": 1801, "source": "regex", "metadata": {}}, {"text": "February 11, 1959", "label": "DATE", "start_char": 1935, "end_char": 1952, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and decree dated February 11, 1959, of the Patna High Court in Appeal from Original Decree No."}}, {"text": "Patna High Court", "label": "COURT", "start_char": 1961, "end_char": 1977, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and decree dated February 11, 1959, of the Patna High Court in Appeal from Original Decree No."}}, {"text": "Bishan Narain", "label": "OTHER_PERSON", "start_char": 2027, "end_char": 2040, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, D. R. Prem."}}, {"text": "R. G. K. Achlll", "label": "LAWYER", "start_char": 2057, "end_char": 2072, "source": "ner", "metadata": {"in_sentence": "B. R. G. K. Achlll' and R. N.\n\nG Sachthey, for the appellant."}}, {"text": "R. N.\n\nG Sachthey", "label": "LAWYER", "start_char": 2078, "end_char": 2095, "source": "ner", "metadata": {"in_sentence": "B. R. G. K. Achlll' and R. N.\n\nG Sachthey, for the appellant."}}, {"text": "A. V. Viswanatha Sostri", "label": "LAWYER", "start_char": 2117, "end_char": 2140, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sostri and K. K. Sinha, for respondents Nos."}}, {"text": "K. K. Sinha", "label": "LAWYER", "start_char": 2145, "end_char": 2156, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sostri and K. K. Sinha, for respondents Nos."}}, {"text": "Raghubar Dayal", "label": "JUDGE", "start_char": 2232, "end_char": 2246, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRaghubar Dayal J.\n\nBilas Rai Bohra, son of Bansidhar Bohra and Sree Ram Bohra, son of Ganpat Ram Bohra, sued the Union of India for the recovery of Rs.", "canonical_name": "RAGHUBAR DAYAL"}}, {"text": "Bilas Rai Bohra", "label": "PETITIONER", "start_char": 2251, "end_char": 2266, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRaghubar Dayal J.\n\nBilas Rai Bohra, son of Bansidhar Bohra and Sree Ram Bohra, son of Ganpat Ram Bohra, sued the Union of India for the recovery of Rs.", "canonical_name": "Bilas Rai Bohra"}}, {"text": "Bansidhar Bohra", "label": "OTHER_PERSON", "start_char": 2275, "end_char": 2290, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRaghubar Dayal J.\n\nBilas Rai Bohra, son of Bansidhar Bohra and Sree Ram Bohra, son of Ganpat Ram Bohra, sued the Union of India for the recovery of Rs."}}, {"text": "Sree Ram Bohra", "label": "RESPONDENT", "start_char": 2295, "end_char": 2309, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRaghubar Dayal J.\n\nBilas Rai Bohra, son of Bansidhar Bohra and Sree Ram Bohra, son of Ganpat Ram Bohra, sued the Union of India for the recovery of Rs.", "canonical_name": "SREE RAM BOHRA AND OTHERS"}}, {"text": "Ganpat Ram Bohra", "label": "OTHER_PERSON", "start_char": 2318, "end_char": 2334, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRaghubar Dayal J.\n\nBilas Rai Bohra, son of Bansidhar Bohra and Sree Ram Bohra, son of Ganpat Ram Bohra, sued the Union of India for the recovery of Rs."}}, {"text": "Union of India", "label": "RESPONDENT", "start_char": 2345, "end_char": 2359, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRaghubar Dayal J.\n\nBilas Rai Bohra, son of Bansidhar Bohra and Sree Ram Bohra, son of Ganpat Ram Bohra, sued the Union of India for the recovery of Rs.", "canonical_name": "UNION OF INDIA"}}, {"text": "Ram Kishun Das Sagarmal", "label": "OTHER_PERSON", "start_char": 2618, "end_char": 2641, "source": "ner", "metadata": {"in_sentence": "13,448 from the defendant tor\n\nUNION V. RAM BORRA (Dayal, /.) 831\n\nA compensation on account of loss and damage suffered by the plaintifts owing to non-delivery of 11 bales of cloth which had been consigned on October 20, 1948 by M/s Ram Kishun Das Sagarmal of Bombay to the plaintiffs under the description of M/ s Banshidhar Ganpat Rai."}}, {"text": "Bombay", "label": "GPE", "start_char": 2645, "end_char": 2651, "source": "ner", "metadata": {"in_sentence": "13,448 from the defendant tor\n\nUNION V. RAM BORRA (Dayal, /.) 831\n\nA compensation on account of loss and damage suffered by the plaintifts owing to non-delivery of 11 bales of cloth which had been consigned on October 20, 1948 by M/s Ram Kishun Das Sagarmal of Bombay to the plaintiffs under the description of M/ s Banshidhar Ganpat Rai."}}, {"text": "Banshidhar Ganpat Rai", "label": "OTHER_PERSON", "start_char": 2700, "end_char": 2721, "source": "ner", "metadata": {"in_sentence": "13,448 from the defendant tor\n\nUNION V. RAM BORRA (Dayal, /.) 831\n\nA compensation on account of loss and damage suffered by the plaintifts owing to non-delivery of 11 bales of cloth which had been consigned on October 20, 1948 by M/s Ram Kishun Das Sagarmal of Bombay to the plaintiffs under the description of M/ s Banshidhar Ganpat Rai.", "canonical_name": "Banshidhar Ganpat Rai"}}, {"text": "Bansidhar Ganpat Rai", "label": "OTHER_PERSON", "start_char": 2863, "end_char": 2883, "source": "ner", "metadata": {"in_sentence": "carried on business in cloth and other articles in the B name and style of M/s Bansidhar Ganpat Rai which was their\n\njoint family trading firm governed by the Mitakshara School of Hindu Law of which joint family the plaintiffs were the kartas and representatives and that they sued as such.", "canonical_name": "Banshidhar Ganpat Rai"}}, {"text": "Mitakshara School of Hindu Law", "label": "ORG", "start_char": 2943, "end_char": 2973, "source": "ner", "metadata": {"in_sentence": "carried on business in cloth and other articles in the B name and style of M/s Bansidhar Ganpat Rai which was their\n\njoint family trading firm governed by the Mitakshara School of Hindu Law of which joint family the plaintiffs were the kartas and representatives and that they sued as such."}}, {"text": "August 29, 1951", "label": "DATE", "start_char": 3197, "end_char": 3212, "source": "ner", "metadata": {"in_sentence": "C The trial Court decreed the suit on August 29, 1951."}}, {"text": "Union of India", "label": "PETITIONER", "start_char": 3390, "end_char": 3404, "source": "ner", "metadata": {"in_sentence": "13,448 with interest thereon ... \"\n\nD The Union of India appealed to the High Court of Patna and prayed for the setting aside of the decree and for the dismissal of the suit with costs.", "canonical_name": "UNION OF INDIA"}}, {"text": "High Court of Patna", "label": "COURT", "start_char": 3421, "end_char": 3440, "source": "ner", "metadata": {"in_sentence": "13,448 with interest thereon ... \"\n\nD The Union of India appealed to the High Court of Patna and prayed for the setting aside of the decree and for the dismissal of the suit with costs."}}, {"text": "Bilas Rai Bohra", "label": "PETITIONER", "start_char": 3614, "end_char": 3629, "source": "ner", "metadata": {"in_sentence": "Subsequently Bilas Rai Bohra died on July 24, 1957.", "canonical_name": "Bilas Rai Bohra"}}, {"text": "July 24, 1957", "label": "DATE", "start_char": 3638, "end_char": 3651, "source": "ner", "metadata": {"in_sentence": "Subsequently Bilas Rai Bohra died on July 24, 1957."}}, {"text": "September 5, 1958", "label": "DATE", "start_char": 3656, "end_char": 3673, "source": "ner", "metadata": {"in_sentence": "On September 5, 1958, the Union of India presented an application for substitution under 0."}}, {"text": "Union of India", "label": "ORG", "start_char": 3679, "end_char": 3693, "source": "ner", "metadata": {"in_sentence": "On September 5, 1958, the Union of India presented an application for substitution under 0."}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 3780, "end_char": 3785, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "May 14, 1958", "label": "DATE", "start_char": 3975, "end_char": 3987, "source": "ner", "metadata": {"in_sentence": "1, on May 14, 1958 when the case was on the daily list with a note to that effect, that he promptly communicated the fact to the railway authorities but due to the mistake of the Attacher, proper steps P for substitution could not be taken in time."}}, {"text": "September 27, 1957", "label": "DATE", "start_char": 4699, "end_char": 4717, "source": "ner", "metadata": {"in_sentence": "It was mentioned therein that on September 27, 1957, an application for substitution of the heirs of Bilas Rai Bohra was made in another , appeal in which the Union of India was a respon- H dent and that therefore the Union of India and its Advocate were aware of the death of Bilas Rai Bohra and of the names of his heirs ."}}, {"text": "SUPRBMI! COURT RBPORTS", "label": "COURT", "start_char": 4992, "end_char": 5014, "source": "ner", "metadata": {"in_sentence": "SUPRBMI!"}}, {"text": "December l, 1958", "label": "DATE", "start_char": 5020, "end_char": 5036, "source": "ner", "metadata": {"in_sentence": "COURT RBPORTS\n\nOn December l, 1958, the High Court dismissed the applica- A tion for the setting aside of the abatement of the appeal against Bilas Rai Bohra and for the substitution of the heirs as it was of opinion that there had been gross negligence on the part of the appellant, the Union of India, as its counsel had information about the death of Bilas Rai Bohra at least on May 16, 1958."}}, {"text": "May 16, 1958", "label": "DATE", "start_char": 5384, "end_char": 5396, "source": "ner", "metadata": {"in_sentence": "COURT RBPORTS\n\nOn December l, 1958, the High Court dismissed the applica- A tion for the setting aside of the abatement of the appeal against Bilas Rai Bohra and for the substitution of the heirs as it was of opinion that there had been gross negligence on the part of the appellant, the Union of India, as its counsel had information about the death of Bilas Rai Bohra at least on May 16, 1958."}}, {"text": "Bilas Rai Bohra", "label": "RESPONDENT", "start_char": 6311, "end_char": 6326, "source": "ner", "metadata": {"in_sentence": "Bilas Rai Bohra, deceased, and Sree Ram Bohra, had filed the E suit as kartas of the joint family which was the owner of the firm of M / s Bansidhar Ganpat Rai and that after the death of one of the kartas the other plaintiff who was also described in the plaintiff's suit as karta was competent to represent the family and so there could be no question of abatement of the entire appeal.", "canonical_name": "Bilas Rai Bohra"}}, {"text": "F Bilas Rai Bohra", "label": "OTHER_PERSON", "start_char": 6766, "end_char": 6783, "source": "ner", "metadata": {"in_sentence": "Again, it was not contended that the appeal against the heirs of F Bilas Rai Bohra had not abated."}}, {"text": "Sree Ram Bohra", "label": "RESPONDENT", "start_char": 7403, "end_char": 7417, "source": "ner", "metadata": {"in_sentence": "It was of opinion that even if it be taken that both th plaintiffs had filed the suit in their capacity as kartas of the G 'Same joint family, the joint family had gained by virtue of the appeal having abated against the heirs of Bilas Rai Bohra as the decree passed in favour of the joint family through the representation of Bilas Rai Bohra could not be set aside and in case the appeal was permitted to proceed against the joint family in the presence of the other karta Sree Ram Bohra, there might be H occasion for the coming into existence of two inconsistent decrees.", "canonical_name": "SREE RAM BOHRA AND OTHERS"}}, {"text": "Art. 13", "label": "PROVISION", "start_char": 7696, "end_char": 7703, "source": "regex", "metadata": {"statute": null}}, {"text": "Mulla", "label": "OTHER_PERSON", "start_char": 9792, "end_char": 9797, "source": "ner", "metadata": {"in_sentence": "In paragraph 236 of Mulla's Hindu Law, XII Edition, is said :\n\n\"Property belonging to a joint family is ordinarily managed by the father or other senior member for the time being of the family."}}, {"text": "[1962] 2 S.C. R. 636", "label": "CASE_CITATION", "start_char": 16515, "end_char": 16535, "source": "regex", "metadata": {}}]}
{"document_id": "1965_2_837_844_EN", "year": 1965, "text": "BHAURAO SHANKAR LOKHANDE & ANR.\n\nSTATE OF MAHARASHTRA & ANR.\n\nFebruary 1, 1965\n\n[RAGHUBAR DAYAL, J. R. MUDHOLKAR, AND V. RAMASWAMI, JJ.)\n\nIndian Penal Code, 1860 (45 of 1860), s. 494-Whether second marriage required to be 'valid' for offence to be committed-Therefore whether essential ceremonies must be perfurmed-Hindu Marriage Act, 1955, s. 17-Marriage 'solemnised'-Meaning of-Hindu.\n\nHindu Law-'Gandharva' marriage-Whether usual essential ceremonies necessary-Modification by custom considered.\n\nAppellant No. 1 was convicted of an offenee under s. 494 I.P.C. (and\n\nallant No. 2 of abetting him) for going through a marriage which was void by reason of its taking place during the life-time of a previous wife.\n\nIt was contended on behalf of the appellants that in law it was necessary for the prosecution to establish that the alleged marriage had been duly performed in accordance with the essential religious rites applicable to the form of marriage gone through, On the other hand it was urged by the State that for the commission of an offence under s. 494, it was not necessary that the second marriage should be a valid one and a person going through any form of marriage during the life-time of the first wife would commit the ., ffettce; and that in any event, in the present case the rites necessary for a 'Gandharva' form of marriage,\n\nas modified by custom prevailing among Maharashtrians, had been duly J: observed.\n\nHELD :\n\n(i) Prima fade, the expression 'whoever-marries' in s. 494 must mean 'whoever-marries validly' or 'whoever-marries and whose marriage is a valid one'. If a marriage is not a valid one acoording to the law applicable to the parties, no question arises of its being void by reason of its taking place during the life of the husband or wife of the person marrying. [839 C-D]\n\n(ii) For a marriage between two Hindus to be void by virtue of i' 1. 17 of the Hindu Marriage Act, 1955, two conditions are required to be satisfied, I.e. (a) the marriage is solemnised after the Act; and (b) at the date of such marriage, either party has a spouse living. Unless the marriage is celebrated or performed with proper ceremonies and due form, it cannot be said to be 'solemnised' within the meaning of s. 17. Merely\n\ngoing through certain ceremonies, with the intention that the parties be taken to be married, will not make them ceremonies prescribed by law or approved by any established custom. [839 G-H; 840 A-C] G\n\n(iii) The two ceremonies essential to the validity of a Hindu marriage, I.e. invocation before the sacred fire and sapatapadi. are also a requi•ite part of a 'Gandharva' marriage unless it is shown that some modification of these ceremonies has been introduced by custom in any particular rommunity or caste.\n\nIt was not disputed that in the present case these two ceremonies were not performed when the appellant No. I H married a second time and the evidence on record did not establish that these essential ceremonies had been abrogated by custom. The prosecution had therefore failed to establish that the second marriage was performed in accordance with the customary rites applicable.\n\n[840 H: 841\n\nA-C; 843 E-GJ\n\nSUPREME COURT REPORTS\n\n(1965] 2 S.C.R.\n\nMu/Ids Hindu Law, 12th &In. pp. 605 and 615, relied upon.\n\n(iv) The facts that the two essential ceremonies may not have been performed for a period of five or seven year.s oou!d not be said to have established a custom as contemplated by s. 3(a) of the Hindu Marriage\n\nAct, 1955. [843 C-E]\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.\n\n178 of 1963.\n\nA ppe'al by special leave from the judgment and order dated AugtlsLl9, 1963, of the Bombay High Court in Criminal Revision Application No. 388 of 1963.\n\n_,/\" / , <S. G. Patwardhan and M. S. Gupta, for the appellants.\n\nW. S. Barlingay, B. R. G. K. Achar for R. H. Dhebar, for respondent No. 1.\n\nThe Judgment of the Court was delivered by\n\nRaghubar Dayal, J. Bhaurao Shankar Lokhande, appellant D No. 1, was married to the complainant Indubai in about 1956. He married Kamlabai in February 1962, during the lifetime of Indubai.\n\nDeorao Shankar Lokhande, appellant No. 2, is the brother of the first appellant.\n\nThese two appellants, together with Kam!abai and her father and accused No. 5, a barber, were tried for an offence under s. 4 94 I.P. C.\n\nThe latter three were acquitted by E the Magistrate.\n\nAppellant No. 1 was convicted under s. 494 I.P.C. and appellant No. 2 for an offence under s. 494 read with s. 114 1.P.C. Their appeal to the Sessions Judge was dismissed.\n\nTheir revision to the High Court also failed. They have preferred this appeal by special leave.\n\nThe only contention raised for the appellants is that in law it F\n\nwas necessary for the prosecution to establish that the alleged second marriage of the appellant No. 1 with Kamlabai in 1962 had been duly performed in accordance with the religious rites applicable to the form of marriage gone through. It is urged for the appellants that the essential ceremonies for a valid marriage were G not performed during the proceedings which took place when appellant No. l and Kam!abai married each other. On behalf of the State it is urged ti!at the proceedings of ihat marriage were in accordance with the custom prevalent in the community of the appellant for gandharva form of marriage and that therefore the second marriage of appellant No. 1 with Kam!abai was a valid H marriage. It is also urged for the State that it is not necessary for the commission of the offence under s. 494 I.P.C. that the second\n\nB. S. LOKHANDE v. STATE (Dayal, /.) 839\n\nA marriage be a valid one and that a person going through any form of marriage during the life-time of the first wife would commit the offence under s. ~~4 lP.C. even if the later marriage be\n\nvoid according to the law applicable to that person.\n\nSection 494 I.P.C. reads : B \"Whoever, having a husband or wife living, marries\n\nin any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished With imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.\"\n\nPrima facie, the expression 'whoever .... marries' must mean 'whoever .... marries validly' or 'whoever .... marries and whose marriage is a valid one'. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband D or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife.\n\nE Apart from these consid_erations, there is nothing in the Hindu law, as applicable to marriages till the enactment of the Hindu Marriage Act of 1955, which made a second marriage of a male Hindu, during the life-time of his previous wife, void. Section 5 of the Hindu Marriage Act provides that a marriage may be solem- F niud between any two Hindus if the conditions mentioned in that section are fulfilled and one of those conditions is that neither party has a spouse living at the time of the marriage. Section 17 provides that any marriage between two Hindus solemniud after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living, and that the provisions of G ss. 494 and 495 I.P.C. shall apply accordingly.\n\nThe marriage between two Hindus is void in view of s. 17 if two conditions are satisfied : (i) the marriage is solemnized after the commencement of the Act; (ii) at the date of such marriage, either party had a spouse living. If the marriage which took plce between the appellant and Kamlabai in February 1962 cannot be said to be 'solem- H nized', that marriage will not be void by virtue of s. 17 of the Act and s. 494 I.P .C. will not apply to such parties to the marriage as had a spouse living.\n\nL4Sup./6S-7\n\n840 SUPllEMB COUltT IU!POR.TS\n\n(1965] 2 S.C.R.\n\nThe word 'solemnize' means, in connection with a marriage, A 'to celebrate the marriage with proper ceremonies and in due form', according to the Shorter O)dord Dictionary. It follows, therefore, that unless the marriage is 'celebrated or performed with prop\" ceremonies and due form' it cannot be said to be 'solemnized'. It is therefore essential, for the purpose of s. 17 of the Act, that the marriage to which s. 494 l.P.C. applies on account of the provi- B sions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make them ceremonies prescribed by law or approved by any established custom.\n\nWe are of opinion that unless the marriage which took place between appellant no. 1 and Kamlabai in February 1962 was performed in accordance with the requirements of the law applicable.\n\nto a marriage between the parties, the marriage cannot be said to have been 'solemnized' and therefore appellant no. 1 cannot be D held to have committed the offence under s. 494 l.P.C.\n\nWe may now determine what the essential ceremonies for a valid marriage between the parties are. It is alleged for the respondent that the marriage between appellant no. 1 and Kamlabai was in 'gandharva' form, as modified by the custom prevailing E among the Maharashtrians.\n\nIt is noted in Mul/ds Hindu Law, 12th Edition, at p. 605 :\n\n\"The Gandharva marriage is the voluntary union of a youth and a damsel which springs from desire and sensual inclination. It has at times been erroneously descri- F bed as an euphemism for concubinage.\n\nThis view is based on a total misconception of the leading texts of the Smritis. It may be noted that the essential marriage ceremonies are as much a requisite part of this form of marriage as of any other unless it is shown that some modification of those ceremonies has been introduced by G custom in any particular community or caste.\"\n\nAt p. 615 is stated:\n\n\"(l) There are two ceremonies essential to the validity of a marriage, whether the marriage be in the H Brahma form or the Asura form, namely-\n\n( l) invocation before the sacred fire, and\n\nB. s. LOr; HANI)B V. STATB (Dayal. 1.) 841\n\n(2) saptapadi, that is, the taking of seven steps by the\n\nbridegroom and the bride jointly before the sacred fire.\n\n(2) A marriage may be completed by the performance of ceremonies other than those referred to in subsection (1), where it is allowed by the custom of the caste to which the parties belong.\"\n\nIt is not disputed that these two essential ceremonies were not c performed when appellant no. 1 married Kamlabai in February\n\n1962. There is no evidence on record to establish that the performance of these two essential ceremonies has been abrogated by the custom prevalent in their community. In fact, the prosecution led no evidence as to what the custom was. It led evidence of what was performed at the time of the alleged marriage. It was D the counsel for the accused in the case who questioned certain witnesses about the performance of certain ceremonies and to such questions the witnesses replied that they were not necessary for the 'gandharva' form of marriage in their community. Such a statement does not mean at the custom of the community deemed what took place at the 'marriage' of the appellant no. 1 and E Kamlabai, sufficient for a valid marriage and that the performance of the two essential ceremonies had been abrogated. There ought to have been definite evidence to establish that the custom prevalent in the community had abrogated these ceremonies for such , form of marriage.\n\nWhat took place that night when appellant no. 1 married Kamlabai, has been stated thus, by P.W. 1 :\n\n\"The marriage took place at 10 p.m. Pat-wooden sheets-were brought. A carpet was spread. Accused no. 1 then sat on the wooden sheet. On the other sheet accused no. 3 sat. She was sitting nearby accused no.\n\n1. Accused no. 4 then performed some Puja by bringing a Tambya-pitcher. Betel leaves and cocoanut was kept on the Tambya. Two_garlaJids were brought. Accused no. 2 was having one and accused no. 4 having one in his hand. Accused no. 4 gave the garland to accused no. 3 and accused no. 2 gave the garland to accused no.\n\n1. Accused nos. 1 and 3 then garlanded each other. Then they each struck each other's forehead.\"\n\n+, -\n\n842 SUPREMB COUllT RBPOR.TS\n\n[1965] 2 S.C.R.\n\nIn cross-examination this witness stated :\n\n\"It is not that Gandharva according to our custom is performed necessarily in a temple. It is also not that a , Brahmin Priest is required to perform the Gandharva\n\nmarril\\ge.\n\nNo 'Mangala Ashtakas' are required to be chanted at the time of Gandharva marriage. At the time of marriage in question, no Brahmin was called and Mangala Ashtakas were chanted. There is no custom to blow a pipe called 'Sher' in vernacular.\"\n\nSitaram, witness no. 2 for the complainant, made a similar starement about what happened at the marriage ceremony and further stated, in the examination-in-chief : C\n\n\"Surpan is the village of accused no. 3's maternal uncle and as the custom is not to perform the ceremony at the house of maternal uncle, so it was performed at another place. There is no custom requiring a Brahmin Priest at the time of Gandharva.\" D\n\nHe stated in cross-examination :\n\n\"A barber is not required and accused no. 5 was not present at the time pf marriage.\n\nThere is a custom that the father of girl should make to touch the foreheads of the girl and boy tq each other and the Gandharva is E completed by the act.\"\n\nIt is urged for the respondent that as the touching of the forehead by the bridegroom and the bride is stated to complete the act of Gandharva marriage, it must be concluded that the ceremonies which, according to this witness, had been performed, F were all the ceremonies which, by custom, were necessary for the validity of the marriage. In the absence of a statement by the witness himself that according to custom these ceremonies were the only necessary ceremonies for a valid marriage, we cannot construe the statement that the touching of the foreheads completed the gandharva form of marriage and that the ceremonies gone G through were all the ceremonies required for the validity of the marriage.\n\nBhagwan, witness no. 3 for the complainant, made no statement about the custom, but stated in cross-examination that it was not neeessary for the valid performance of gandharva marriage in their community that a Brahmin priest was required and mangala H ashtakas were to be chanted. The statement of Jeebhau, witness no. 4 for the complainant, does not show how the custom has\n\nB. S. LOKHANDB V. STATB (Dayal, /.) 843\n\nA modified the essential forms of marriage.\n\nHe stated in crossexamination :\n\n\"I had witnessed two Gandharvas before this. For the last 5 or 7 years a Brahmin Priest, a Barber and a Thakur is not required to perform the Gandharva but formerly it was essential. Formerly the Brahmin used to chant Mantras and Mangala ashtakas. It was necessary to have a maternal uncle or any other person to make touch the foreheads of the sponsors together. A Brahmin from Kasara and Dhandana comes to our village for doing rituals but I do not know their names.\"\n\nC This statement too, does not establish that the two essential ceremonies are no more necessary to be performed, for a Gandharva marriage. The mere fact that they were probably not performed in the two Gandharva marriages Jeebhau had attended, does uot establish that their performance is no more necessary according D to the custom in that community.\n\nFurther, Jeebhau has stated that about five or seven years earlier the performance of certain ceremonies which, till then, were essential for the marriage, were given up. If so, the departure from the essentials cannot be said to have become a custom, as contemplated by the Hindu Marriage Act.\n\nClause (a) of s. 3 of the Act provides that the expressions 'custom' and 'usage' signify any rule which, having been continuously and uniformly observed for a. long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family.\n\nWe are therefore of opinion that the prosecution has failed to establish that the marriage between appellant no. 1 and Kamlabai in February 1962 was performed in accordance with the customary rites as required by s. 7 of the Act. It was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu law.\n\nIt follows therefore that the marriage between appellant no. 1 and Kamlabai does not come within the expression 'solemnized marriage' occurring in s. 17 of the Act and consequently does not come within the mischief of s. 494 l.P.C. even though the first wife of appellant no. 1 was living when he married Kamlabai in H February 1962.\n\nWe have not referred to .and discussed the cases referred to in support of the contention that the 'subsequent marriage' referred\n\n844 SVP:UMJI COUllT Rl!POil.TS\n\n(196S] 2 S.C.11..\n\nto in s. 494 I.P.C. need not be a valid marriage, as it is unnecessary A. to consider whether they have been correctly decided, in view of the fact that the marriage of appellant no. 1 with Kamlabai could be a void marriage only if it came within the purview of s. 17 of the Act.\n\nThe result is that the conviction of appellant no. 1 under B s. 494 I.P.C. and of appellant no. 2 under s. 494 read with s. 114 l.P.C. cannot be sustained. We therefore allow their appeal, set aside their convictions and acquit them.\n\nThe bail bonds of appellant no. 1 will stand discharged. Fines, if paid, will be refunded. c Appeal allowed.", "total_entities": 69, "entities": [{"text": "BHAURAO SHANKAR LOKHANDE & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "BHAURAO SHANKAR LOKHANDE & ANR", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA & ANR", "label": "RESPONDENT", "start_char": 33, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA & ANR", "offset_not_found": false}}, {"text": "February 1, 1965", "label": "DATE", "start_char": 62, "end_char": 78, "source": "ner", "metadata": {"in_sentence": "February 1, 1965\n\n[RAGHUBAR DAYAL, J. R. MUDHOLKAR, AND V. RAMASWAMI, JJ.)"}}, {"text": "RAGHUBAR DAYAL, J.", "label": "JUDGE", "start_char": 81, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL, J.", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 100, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 118, "end_char": 135, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Indian Penal Code, 1860", "label": "STATUTE", "start_char": 138, "end_char": 161, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 494", "label": "PROVISION", "start_char": 176, "end_char": 182, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code, 1860", "statute": "Indian Penal Code, 1860"}}, {"text": "Therefore whether essential ceremonies must be perfurmed-Hindu Marriage Act, 1955", "label": "STATUTE", "start_char": 258, "end_char": 339, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 17", "label": "PROVISION", "start_char": 341, "end_char": 346, "source": "regex", "metadata": {"linked_statute_text": "Therefore whether essential ceremonies must be perfurmed-Hindu Marriage Act, 1955", "statute": "Therefore whether essential ceremonies must be perfurmed-Hindu Marriage Act, 1955"}}, {"text": "s. 494", "label": "PROVISION", "start_char": 550, "end_char": 556, "source": "regex", "metadata": {"linked_statute_text": "Therefore whether essential ceremonies must be perfurmed-Hindu Marriage Act, 1955", "statute": "Therefore whether essential ceremonies must be perfurmed-Hindu Marriage Act, 1955"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 557, "end_char": 562, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 494", "label": "PROVISION", "start_char": 1059, "end_char": 1065, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 494", "label": "PROVISION", "start_char": 1494, "end_char": 1500, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Hindu Marriage Act, 1955", "label": "STATUTE", "start_char": 1894, "end_char": 1918, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 17", "label": "PROVISION", "start_char": 2231, "end_char": 2236, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Marriage Act, 1955", "statute": "the Hindu Marriage Act, 1955"}}, {"text": "s. 3(a)", "label": "PROVISION", "start_char": 3448, "end_char": 3455, "source": "regex", "metadata": {"statute": null}}, {"text": "Act, 1955", "label": "STATUTE", "start_char": 3479, "end_char": 3488, "source": "regex", "metadata": {}}, {"text": "S. G. Patwardhan", "label": "LAWYER", "start_char": 3733, "end_char": 3749, "source": "ner", "metadata": {"in_sentence": "_,/\" / , <S. G. Patwardhan and M. S. Gupta, for the appellants."}}, {"text": "M. S. Gupta", "label": "LAWYER", "start_char": 3754, "end_char": 3765, "source": "ner", "metadata": {"in_sentence": "_,/\" / , <S. G. Patwardhan and M. S. Gupta, for the appellants."}}, {"text": "W. S. Barlingay", "label": "LAWYER", "start_char": 3788, "end_char": 3803, "source": "ner", "metadata": {"in_sentence": "W. S. Barlingay, B. R. G. K. Achar for R. H. Dhebar, for respondent No."}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 3805, "end_char": 3822, "source": "ner", "metadata": {"in_sentence": "W. S. Barlingay, B. R. G. K. Achar for R. H. Dhebar, for respondent No."}}, {"text": "R. H. Dhebar", "label": "LAWYER", "start_char": 3827, "end_char": 3839, "source": "ner", "metadata": {"in_sentence": "W. S. Barlingay, B. R. G. K. Achar for R. H. Dhebar, for respondent No."}}, {"text": "Raghubar Dayal", "label": "JUDGE", "start_char": 3908, "end_char": 3922, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRaghubar Dayal, J. Bhaurao Shankar Lokhande, appellant D No.", "canonical_name": "RAGHUBAR DAYAL, J."}}, {"text": "Deorao Shankar Lokhande", "label": "PETITIONER", "start_char": 4097, "end_char": 4120, "source": "ner", "metadata": {"in_sentence": "Deorao Shankar Lokhande, appellant No."}}, {"text": "Kam!abai", "label": "PETITIONER", "start_char": 4215, "end_char": 4223, "source": "ner", "metadata": {"in_sentence": "These two appellants, together with Kam!abai and her father and accused No.", "canonical_name": "E Kamlabai"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 4300, "end_char": 4304, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Marriage\n\nAct, 1955", "statute": "the Hindu Marriage\n\nAct, 1955"}}, {"text": "s. 494", "label": "PROVISION", "start_char": 4407, "end_char": 4413, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Marriage\n\nAct, 1955", "statute": "the Hindu Marriage\n\nAct, 1955"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 4414, "end_char": 4419, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 494", "label": "PROVISION", "start_char": 4462, "end_char": 4468, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 114", "label": "PROVISION", "start_char": 4479, "end_char": 4485, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Kamlabai", "label": "PETITIONER", "start_char": 4816, "end_char": 4824, "source": "ner", "metadata": {"in_sentence": "1 with Kamlabai in 1962 had been duly performed in accordance with the religious rites applicable to the form of marriage gone through.", "canonical_name": "E Kamlabai"}}, {"text": "s. 494", "label": "PROVISION", "start_char": 5518, "end_char": 5524, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 5525, "end_char": 5530, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 494", "label": "PROVISION", "start_char": 5837, "end_char": 5848, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 5849, "end_char": 5854, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Hindu Marriage Act", "label": "STATUTE", "start_char": 7002, "end_char": 7020, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 5", "label": "PROVISION", "start_char": 7125, "end_char": 7134, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindu Marriage Act", "label": "STATUTE", "start_char": 7142, "end_char": 7160, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 17", "label": "PROVISION", "start_char": 7387, "end_char": 7397, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 494 and 495", "label": "PROVISION", "start_char": 7600, "end_char": 7615, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 7616, "end_char": 7621, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 17", "label": "PROVISION", "start_char": 7700, "end_char": 7705, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Kamlabai", "label": "PETITIONER", "start_char": 7933, "end_char": 7941, "source": "ner", "metadata": {"in_sentence": "If the marriage which took plce between the appellant and Kamlabai in February 1962 cannot be said to be 'solem- H nized', that marriage will not be void by virtue of s. 17 of the Act and s. 494 I.P .C. will not apply to such parties to the marriage as had a spouse living.", "canonical_name": "E Kamlabai"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 8042, "end_char": 8047, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 494", "label": "PROVISION", "start_char": 8063, "end_char": 8069, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 8580, "end_char": 8585, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 494", "label": "PROVISION", "start_char": 8625, "end_char": 8631, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 494", "label": "PROVISION", "start_char": 9308, "end_char": 9314, "source": "regex", "metadata": {"statute": null}}, {"text": "E Kamlabai", "label": "PETITIONER", "start_char": 11588, "end_char": 11598, "source": "ner", "metadata": {"in_sentence": "1 and E Kamlabai, sufficient for a valid marriage and that the performance of the two essential ceremonies had been abrogated.", "canonical_name": "E Kamlabai"}}, {"text": "Kamlabai", "label": "WITNESS", "start_char": 11925, "end_char": 11933, "source": "ner", "metadata": {"in_sentence": "1 married Kamlabai, has been stated thus, by P.W. 1 :\n\n\"The marriage took place at 10 p.m. Pat-wooden sheets-were brought."}}, {"text": "Sitaram", "label": "WITNESS", "start_char": 13111, "end_char": 13118, "source": "ner", "metadata": {"in_sentence": "Sitaram, witness no."}}, {"text": "Bhagwan", "label": "WITNESS", "start_char": 14517, "end_char": 14524, "source": "ner", "metadata": {"in_sentence": "Bhagwan, witness no."}}, {"text": "Jeebhau", "label": "WITNESS", "start_char": 14817, "end_char": 14824, "source": "ner", "metadata": {"in_sentence": "The statement of Jeebhau, witness no."}}, {"text": "Kasara", "label": "GPE", "start_char": 15393, "end_char": 15399, "source": "ner", "metadata": {"in_sentence": "A Brahmin from Kasara and Dhandana comes to our village for doing rituals but I do not know their names.\""}}, {"text": "Dhandana", "label": "OTHER_PERSON", "start_char": 15404, "end_char": 15412, "source": "ner", "metadata": {"in_sentence": "A Brahmin from Kasara and Dhandana comes to our village for doing rituals but I do not know their names.\""}}, {"text": "Jeebhau", "label": "OTHER_PERSON", "start_char": 15708, "end_char": 15715, "source": "ner", "metadata": {"in_sentence": "The mere fact that they were probably not performed in the two Gandharva marriages Jeebhau had attended, does uot establish that their performance is no more necessary according D to the custom in that community."}}, {"text": "Hindu Marriage Act", "label": "STATUTE", "start_char": 16114, "end_char": 16132, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 16149, "end_char": 16153, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 16617, "end_char": 16621, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 16897, "end_char": 16902, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 494", "label": "PROVISION", "start_char": 16968, "end_char": 16974, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 494", "label": "PROVISION", "start_char": 17273, "end_char": 17279, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 17280, "end_char": 17285, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 17", "label": "PROVISION", "start_char": 17529, "end_char": 17534, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 494", "label": "PROVISION", "start_char": 17609, "end_char": 17615, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 17616, "end_char": 17621, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 494", "label": "PROVISION", "start_char": 17652, "end_char": 17658, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 114", "label": "PROVISION", "start_char": 17669, "end_char": 17675, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}]}
{"document_id": "1965_2_845_852_EN", "year": 1965, "text": "AJAIB SINGH\n\nSTATE OF PUNJAB\n\nFebruary 2, 1965\n\nB [K. SuBBA RAO, K. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH\n\nAND S. M. SIKRI, JJ.]\n\nJ..11fmc1 of India A.ct, 1962 (A.ct 51 of 1962), s. 3(2)(15)(i)- De/mc• of India Rule., 1962 r. 30A.-Power of Detention-Exercise-- By whom.\n\nCode of Criminal Procedure, 1898 (A.ct 5 o/ 1898), n. 10(1), C 10(2) & lldditional District Magistrate-/n¥tsted with powers under s. 10(2)-Whether District Magistrate-Officer Incharge of District Magistrate's Office-But absence of Appointment under s. 10(1)-I/ District Magistrate.\n\nThe Additional District Magistrate of Amritsar who was invested with the powers of a District Maptrate under s. 10(2) of the Code of Criminal Procedure, 1898 was under instructioo& from the State Government in charge of the office of the District Magistrate, when the D District Magistrate was transferred.\n\nNo order appointing him aa District Magistrate as required by s. 10( 1) of the Code was however passed. During the period he was in charge of the office of the District Magistrate he passed an order detaining the appellant under r. 30(1)(b) of the Defence of India Rules, 1962. In appeal by special leave from Punjab High Court, it was contended by the appellant, Iha~ in the absence of an order under a. 10(1) of the Code the Additional District Map E trate could n<>i be the District Magistrate for the purpose of passing an order of detention under Defence of India Act and the Rules, and consequently the order Qf detention passed by him was without authority and liable to be set aside.\n\nHELD : The order of detention was not in accordance with the Defence of India Act and Rules and must be set aside, as be was not then the District Magistrate, but only an Additional District Magistrate.\n\n[852 FJ\n\nThe Defence of India Act and the Rules show unmistakably that the powers of detention can only be exercised by the State Government or an officer or authority to whom it might be delegated but who shall in no case be lower in rank than a District Magistrate. An Additional Dmrict Magistrate is below the rank of a District Magistrate. (849 E-F;\n\n851 H-852 A] G Even if an Additional Di.strict Magistrate hid been appointed with all the powexs under the Code and also under any other law for the time being in force, be was still not the District Magistrate unless the Government appointed him as such under s. 10(1) of the Code of Criminal Procedure. [850 D-E) Even if an officer was exercising the powers of the District Magiatrate on there being a vacancy in the office of the District Magistrate he H was still not the District Magistrate until be was appointed as such under s. 10(1) of the Cede of Criminal Procedure._ [850 F-0]\n\nThe instructions could not take the place of a notification under s. 10(1) of the Code. (851 C-D]\n\n846 SUPllBMB COUllT llBPOR.TS\n\n[1965) 2 S.C.R.\n\nCllIMINAL APPELLATE JURISDICTION : Criminal Appeal No.\n\nA 252 of 1964.\n\nAppeal by special leave from the judgment and order dated July 30, 1964 of the Punjab High Court in Criminal Miscellaneous No. 742 of 1962.\n\nM. C. Setalvad, and Naunit Lal, for the appellant.\n\nI. N. Kaushal, Advocate-General for the State of Punjab and R. N. Sachthey, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nWanchoo J.\n\nThis appeal by special leave from the judgment C of the Punjab High Court was heard on January 20, 1965. We then pronounced a short order allowing the appeal and directing the release of the detenu and indicated that reasons would follow later. We now proceed to give the reasons.\n\nfl' The appellant was detained under r. 30 (I) (b) of the Defence D of India Rules (hereinafter referred to as the Rules) by an order passed by Shri Lall Singh on June 30, 1964.\n\nThat order was passed by Shri Lall Singh as District Magistrate of Amritsar. The only point that has been urged before us on behalf of the detenu is that Shri Lall Singh was not the District Magistrate of Amritsar on June 30, 1964 and therefore he had no power to pass the order E\n\nof detention under the Defence of India Act, No. 51 of 1962, (hereinafter referred to as the Act) and the Rules.\n\nIt is necessary to set out certain facts with respect to the position Shri Lall Singh was occupying on June 30, 1964 when the\n\norder of detention was passed. It appears that Shri P. N. Bhalla y was the District Magistrate of Amritsar in April 1964. He was ordered to be transferred to the Secretariat by an order passed on April 23, 1964. At that time Shri Lall Singh was the Additional District Magistrate of Amritsar and had been inter alia invested under s. 10 (2) of the Code of Criminal Procedure (hereinafter referred to as the Code) with all the powers of a District Magistrate G under the Code or under any other law for the time being in force by an order which had been passed on April 10, 1963. Further when the order of transfer of Shri Bhalla was made, instructions were issued that Shri Bhalla should hand over charge to Shri Lall Singh, Additional Deputy Commissioner, Amritsar who would hold the current charge of the post of Deputy Commissioner, H Amritsar, till further orders.\n\nIt appears that Shri Bhalla handed over charge of the office of the Deputy Commis-\n\nAJAIB SINGH v. STATE (Wanchoo, /.) 847\n\nA sioner to Shri Lall Singh on the afternoon of May 15, 1964 in accordance with the instructions above mentioned, and thus Shri Lall Singh was in current charge of the office of Deputy Commissioner, Amritsar from May 16, 1964. No order appointing Slui\n\nLall Singh as District Magistrate of Amritsar as required under s. 10 (1) of the Code was passed.\n\nBut as Shri Lall Singh was B already invested as an Additional District Magistrate with all the powers of the District Magistrate under the Code and under any other law for the time being in force, he carried on the duties of the office of the District Magistrate also. At the same time.it may be noted that no other officer was posted as District Magistrate C from May, 16 till June 30, 1964 when the order of detention was passed. The new District Magistrate Shri Iqbal Singh took over charge as District Magistrate, Amritsar; on July 1, 1964 and Shri Lall Singh was then appointed as District Magistrate, Hissar.\n\nOn these facts the contention on behalf of the detenu is that D Shri Lall Singh was not the District Magistrate of Amritsar on June 30, 1964, even though he signed himself as District Magistrate when he passed the order of detention. It is submitted that in the absence of an order under s. 10 (1) of the Code appointing\n\nShri Lall Singh as District Magistrate of Amritsar, he could not be the District Magistrate of Amritsar for the purpose of passing I: an order of detention under the Act and the Rules, whatever might be his powei;:s to carry on the administration of the district as an Additional District Magistrate and Additional Collector under the powers conferred on him by various notifications of April 1963.\n\nConsequently the order of detention passed by him on June 30,\n\nF 1964, was without authority and liable to be set aside.\n\nIn reply, the learned Advocate General for the State of Punjab has raised two points. In the first place he urges that the notification delegating to all District Magistrates the State Government's powers to detain persons under r. 30 of the Rules is law and relies in this connection on the decision of this Court in I ayantila/ A mrat- G lal Shodhan v. F. N. Rana(1). It is further contended that by the notification of April 1963, Shri Lall Singh was invested with all the powers of a District Magistrate under the Code and under any other law for the time being in force and would therefore have the power to detain persons under the law contained in the notification delegating the power of detention to all District H Magistrates. In the second place it is urged that as Shri Lall\n\nI, A.I.R. 1964 S. C. 648.\n\nSUPREME COURT REPORTS (1965] 2 S.C.ll.\n\nSingh was holding charge of the current duties of tile office of A the Deputy Commissioner and as no one else had been posted in Amritsar between May 16 and June 30, 1964 as District Magistrate he was in fact and in law the District Magistrate of Amritsar.\n\nWe do not think it necessary for purposes of this case to decide the first point raised by the learned Advocate General, for B we l)ave come to the conclusion that no officer other than the District Magistrate of a District can pass an order of detention under r. 30 of the Rules in view of the provisions of the Act and of the Rules to which we shall now refer.\n\nSection 3(1) of the Act gives power to the Central Government by notification in the Olli- C cial Gazette to make such rules as appear to it necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of community.\n\nSection 3 (2) then provides for the making of rules for various purposes without D prejudice to the generality of the powers conferred by s, 3 (1 ), and the 15th clause thereof provides for detention. The relevant portion of that clause necessary for our purposes reads thus :-\n\n\"(15). Notwithstanding anything in any other law for the time being in force-\n\n(i) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain {the authority empowered to detain not being lower in rank than that of a District Magistrate), suspects, on grounds appearing to that authority to be reasonable, of being of hostile origin or having acted, acting, being about to act or being likely to act in a manner prejudicial to the defence of India and civil defence, the security of the State, the public safety or interest, the maintenance of public order, India's relations with foreign States, the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military oJierations, or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner.\"\n\nIt would be seen that s. 3 (2) (I 5) (i) which is the source <if power to detain according to the Rules to be framed thereunder itself\n\n' '\n\n• AJAIB SINGH v. STATE (Wonchoo, /.) 849\n\nA Jays down that the authority empowered to detain shall not be lower in rank than that of a District Magistrate.\n\nThen we came to s. 40 (2) of the Act, which gives power to the State Government to delegate its powers to any officer or authority subordinate to it.\n\nThis power of delegation, however, B must be read harmoniously with s. 3 (2) (15) and therefore under s. 40 (2) the State Government cannot delegate its power to detain to any officer below the rank of a District Magistrate.\n\nRule 30 of the Rules then provides for detention and under that rule the power is conferred on the Central Government or the State Government to detain any person.\n\nThat power of the c State Government can however be delegated under s. 40 (2) to any officer subordinate to it. But as we have already indicated the power of delegation must be read harmoniously with s. 3(2)(15) and therefore the State Government cannot delegate the power to detain to any officer who is lower in rank than the District Magistrate.\n\nThe position is further clearly brought out D in r. 30-A which provides for review of a detention order made by an officer. It is made clear there also that the officer shall in no case be lower in rank than a District Magistrate.\n\nThe effect of these provisions thus is that the power of detention can either be exercised by the State Government or by its delegate who however can in no case be lower in rank than a District J: Magistrate. The Act and the Rules therefore show unmistakably that the power of detention can only be exercised by the State Government or an officer or authority to whom it might be delegated but who shall in no case be lower in rank than a District Magistrate.\n\nF We may in this connection contrast the language of s. 3 (2) of the Preventive Detention Act, No. 4 of 1950, which lays down that any of the following officers, namely :-\n\n(a) district magistrates,\n\n(b) additional district magistrates specially em- G powered in this behalf by the State Government,\n\n(c) ..\n\n(d) ..\n\nmay exercise the powers conferred by s. 3 (1) (a) (ii) and (iii). If the intention under the Act and the Rules was that the Additional H District Magistrate may also exercise the power of detention conferred thereunder we would have found a provision similar to that contained in the Preventive Detention Act.\n\n850 SUPIUIM'.11 COtmT REPORTS\n\n[1965) 2 S.C.R.\n\nTwo questions then arise on the view we hold that no A officer below the rank of a District Magistrate can exercise the power of detention under the Act and the Rules.\n\nThe first is whether Shri Lall Singh was the District Magistrate of Amritsar on June 30, 1964. Secondly if he was not the District Magistrate on that date, could he as Additional Disb.ict Magistrate exercise B the power of detention and that would depend upon whether an Additional District Magistrate is of the same rank as the District Magistrate or below him in rank? Nows. 10 (I) of the Code provides for the appointinent of a District Magistrate and lays down that \"in every district outside the presidency-towns, the State Government shall appoint, a Magistrate of the first class, C who shall be called the District Magistrate\". The appoinb.nent of a District Magistrate therefore has to be made under s. IO (I).\n\nSection 10(2) then gives power to the State Government to appoint any Magistrate first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a Disb.ict Magistrate under the Code or D under any other law for the time being in force as the State Government may direct. But even if an Additional District Magistrate has been appointed with all the powers under the Code and also under any other law for the time being in force, he is still not the District Magistrate unless the Government appoints him as such under s. 10 (1) of the Code. Further s. 11 of the E Code envisages the contingency of the office of the District Magistrate becoming vacant. It provides that where this contingency arises, any officer succeeding temporarily to the chief executive administration of the district shall, pending the orders of the State Government, exercise all the powers and perform all the duties respectively conferred and imposed by the Code on the District F Magistrate. But even if an officer is exercising the powers of the District Magistrate on there being a vacancy in the office of the District Magistrate he is still not the District Magistrate until he is appointed as such under s. 10(1) of the Code.\n\nWe have therefore to see whether Shri Lall Singh was appointed G as District Magistrate of Amritsar under s. IO (I) of the Code.\n\nAs to that it is admitted that there was no notification appointing Shri Lall Singh as the District Magistrate of Amritsar under s. 10(1) of the Code.\n\nAll that the Advw.., ate General can point out is the instruction issued by the Governor of the Punjab when transferring Shri Bhalla who was the District Magis- H Irate of Amritsar to the effect that Shri Bhalla should hand over charge to Shri Lall Singh who will hold the current\n\nAJAIB SINGH v. STATB (Wanchoo, /.) 851\n\nA charge of the office of the Deputy Commissioner, Amritsar. This means that there was a temporary vacancy on the transfer of Shri Bhalla and Shri Lall Singh temporarily succeeded to the chief executive administration of the district As such he would be entitled to exercise the powers of the District Magistrate under the Code under s. 11. Further as he had been empowered as B Additional District Magistrate to exercise powers of the District Magistrate under any other law for the time being in force, he would exercise those powers also by virtue of being so authorised.\n\nBut even though Shri Bhalla may have gone away after handing over charge on the afternoon of May, 15, 1964 Shri Lall Singh could not and did not become the District Magistrate of Amritsar C in the absence of a notification under s. l 0 { l ) of the Code by the State Government.\n\nThe instructions to which we have already referred cannot in our opinion take the place of a notification under s. IO (l) of the Code. Therefore though Shri Lall Singh may be exercising all the powers of the District Magistrate D by virtue of his being an Additional District Magistrate under the notification issued in Apnl 1963 and also by virtue of s. 11 of the Code he was not the District Magistrate of Amritsar in Jaw on June 30, 1964.\n\nIt is true that when passing the order he showed his designation as District Magistrate and that may be because Shri Bhalla who was the District Magistrate had gone E away and no other officer had replaced him till June 30, 1964.\n\nThe transfer of Shri Bhalla would not automatically make Shri Lall Singh, the District Magistrate of Amritsar, in the absence of a notification under s. l 0 (I) of the Code. When we say this we should not be understood to mean that a notification appointing a District Magistrate must necessarily recite in terms that it was F being made under s. 10 of the Code; all that we mean is that there must be an order of the State Government appointing an officer as District Magistrate of the district.\n\nIn the absence of such an order no officer can claim to be the District Magistrate of the district. The instructions which were issued in this case however do not say that Shri Lall Singh was being appointed the G District Magistrate of the district in place of Shri Bhalla. If that were so, we would have found a proper notification to that effect, published in the Gazette. We, therefore, hold that Shri Lall Singh was not the District Magistrate of Amritsar when he made the order on June 30, 1964.\n\nH The next question is whether an Additional District Magistnte can be said to be of the same rank as the District Magistr-.i..e.\n\nWe are clearly of the opinion that an Additional District Magis-\n\n852 SUPIUIMB COURT llEPOllTS\n\n[196S) 2 S.C.R.\n\ntrate is below the rank of a District Magistrate and cannot be A said to be of the same rank as the District Magistrate. We may in this connection refer to s. 10(2) of the Code which shows that an Additional Distdct Magistrate need not necessarily be conferred with all the P9Wers of the District Magistrate under the Code or .any other law for the time being in force. He can be an Additional District Magistrate though he may be exercising B only some of the powers of the District Magistrate.\n\nClearly, thereforel an Additional District Magistrate must be an officer below the rank of the District Magistrate. Further sub-s. (3) of s. 10 bears this out. That sub-section says that for certain purposes, the Additional District Magistrate shall be deemed to be subordinate to the District Magistrate.\n\nTherefore even if the c Additional District Magistrate is invested with all the powers of a District Magistrate under the Code or under any other law for the time being in force he is still below the District Magistrate for certain purposes mentioned in s. 10(3) of the Code. Besides - there is only one District Magistrate in a district and all other 0 magistrates whether they be Magistrates first class or even Additional District Magistrates must obviously be belw him in rank.\n\nAs s. 3 (2) ( 15) of the Act provides that the power of detention cannot be exercised by any officer below the rank of the District Magistrate, such power cannot be exercised by an Additional District Magistrate who is in our opinion an officer below the rank E of a District Magistrate. The order of the detention passed by Shri Lall Singh on June 30, 1964 when he was not the District Magistrate of Amritsar but only an Additional District Magistrate is not in accordance with the Act and the Rules and must be set aside.\n\nF Appeal alluwed.", "total_entities": 79, "entities": [{"text": "AJAIB SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "AJAIB SINGH", "offset_not_found": false}}, {"text": "STATE OF PUNJAB", "label": "RESPONDENT", "start_char": 13, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB", "offset_not_found": false}}, {"text": "February 2, 1965", "label": "DATE", "start_char": 30, "end_char": 46, "source": "ner", "metadata": {"in_sentence": "AJAIB SINGH\n\nSTATE OF PUNJAB\n\nFebruary 2, 1965\n\nB [K. SuBBA RAO, K. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH\n\nAND S. M. SIKRI, JJ.]"}}, {"text": "K. SuBBA RAO", "label": "JUDGE", "start_char": 51, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 65, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, J", "label": "JUDGE", "start_char": 80, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 99, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. M. SIKRI, JJ.", "label": "JUDGE", "start_char": 112, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "s. 3(2)(15)(i)", "label": "PROVISION", "start_char": 180, "end_char": 194, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 272, "end_char": 304, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 402, "end_char": 410, "source": "regex", "metadata": {"linked_statute_text": "Code of Criminal Procedure, 1898", "statute": "Code of Criminal Procedure, 1898"}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 521, "end_char": 529, "source": "regex", "metadata": {"linked_statute_text": "Code of Criminal Procedure, 1898", "statute": "Code of Criminal Procedure, 1898"}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 664, "end_char": 672, "source": "regex", "metadata": {"linked_statute_text": "Code of Criminal Procedure, 1898", "statute": "Code of Criminal Procedure, 1898"}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 680, "end_char": 712, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10( 1)", "label": "PROVISION", "start_char": 925, "end_char": 934, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "Defence of India Rules, 1962", "label": "STATUTE", "start_char": 1111, "end_char": 1139, "source": "regex", "metadata": {}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 1173, "end_char": 1190, "source": "ner", "metadata": {"in_sentence": "In appeal by special leave from Punjab High Court, it was contended by the appellant, Iha~ in the absence of an order under a. 10(1) of the Code the Additional District Map E trate could n<>i be the District Magistrate for the purpose of passing an order of detention under Defence of India Act and the Rules, and consequently the order Qf detention passed by him was without authority and liable to be set aside."}}, {"text": "Defence of India Act and the Rules", "label": "STATUTE", "start_char": 1773, "end_char": 1807, "source": "regex", "metadata": {}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 2376, "end_char": 2384, "source": "regex", "metadata": {"linked_statute_text": "FJ\n\nThe Defence of India Act and the Rules", "statute": "FJ\n\nThe Defence of India Act and the Rules"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 2392, "end_char": 2418, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 2648, "end_char": 2656, "source": "regex", "metadata": {"linked_statute_text": "FJ\n\nThe Defence of India Act and the Rules", "statute": "FJ\n\nThe Defence of India Act and the Rules"}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 2770, "end_char": 2778, "source": "regex", "metadata": {"linked_statute_text": "FJ\n\nThe Defence of India Act and the Rules", "statute": "FJ\n\nThe Defence of India Act and the Rules"}}, {"text": "M. C. Setalvad", "label": "LAWYER", "start_char": 3064, "end_char": 3078, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, and Naunit Lal, for the appellant."}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 3084, "end_char": 3094, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, and Naunit Lal, for the appellant."}}, {"text": "I. N. Kaushal", "label": "LAWYER", "start_char": 3116, "end_char": 3129, "source": "ner", "metadata": {"in_sentence": "I. N. Kaushal, Advocate-General for the State of Punjab and R. N. Sachthey, for the respondents."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3176, "end_char": 3190, "source": "ner", "metadata": {"in_sentence": "I. N. Kaushal, Advocate-General for the State of Punjab and R. N. Sachthey, for the respondents."}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 3258, "end_char": 3265, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nWanchoo J.\n\nThis appeal by special leave from the judgment C of the Punjab High Court was heard on January 20, 1965."}}, {"text": "Lall Singh", "label": "JUDGE", "start_char": 3701, "end_char": 3711, "source": "ner", "metadata": {"in_sentence": "fl' The appellant was detained under r. 30 (I) (b) of the Defence D of India Rules (hereinafter referred to as the Rules) by an order passed by Shri Lall Singh on June 30, 1964.", "canonical_name": "Lall Singh"}}, {"text": "Lall Singh", "label": "JUDGE", "start_char": 3761, "end_char": 3771, "source": "ner", "metadata": {"in_sentence": "That order was passed by Shri Lall Singh as District Magistrate of Amritsar.", "canonical_name": "Lall Singh"}}, {"text": "Amritsar", "label": "GPE", "start_char": 3798, "end_char": 3806, "source": "ner", "metadata": {"in_sentence": "That order was passed by Shri Lall Singh as District Magistrate of Amritsar."}}, {"text": "June 30, 1964", "label": "DATE", "start_char": 4230, "end_char": 4243, "source": "ner", "metadata": {"in_sentence": "It is necessary to set out certain facts with respect to the position Shri Lall Singh was occupying on June 30, 1964 when the\n\norder of detention was passed."}}, {"text": "P. N. Bhalla", "label": "JUDGE", "start_char": 4306, "end_char": 4318, "source": "ner", "metadata": {"in_sentence": "It appears that Shri P. N. Bhalla y was the District Magistrate of Amritsar in April 1964."}}, {"text": "April 23, 1964", "label": "DATE", "start_char": 4450, "end_char": 4464, "source": "ner", "metadata": {"in_sentence": "He was ordered to be transferred to the Secretariat by an order passed on April 23, 1964."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 4585, "end_char": 4590, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 4602, "end_char": 4628, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "District Magistrate G under the Code", "label": "STATUTE", "start_char": 4692, "end_char": 4728, "source": "regex", "metadata": {}}, {"text": "April 10, 1963", "label": "DATE", "start_char": 4817, "end_char": 4831, "source": "ner", "metadata": {"in_sentence": "At that time Shri Lall Singh was the Additional District Magistrate of Amritsar and had been inter alia invested under s. 10 (2) of the Code of Criminal Procedure (hereinafter referred to as the Code) with all the powers of a District Magistrate G under the Code or under any other law for the time being in force by an order which had been passed on April 10, 1963."}}, {"text": "Bhalla", "label": "OTHER_PERSON", "start_char": 4876, "end_char": 4882, "source": "ner", "metadata": {"in_sentence": "Further when the order of transfer of Shri Bhalla was made, instructions were issued that Shri Bhalla should hand over charge to Shri Lall Singh, Additional Deputy Commissioner, Amritsar who would hold the current charge of the post of Deputy Commissioner, H Amritsar, till further orders."}}, {"text": "May 15, 1964", "label": "DATE", "start_char": 5296, "end_char": 5308, "source": "ner", "metadata": {"in_sentence": "It appears that Shri Bhalla handed over charge of the office of the Deputy Commis-\n\nAJAIB SINGH v. STATE (Wanchoo, /.) 847\n\nA sioner to Shri Lall Singh on the afternoon of May 15, 1964 in accordance with the instructions above mentioned, and thus Shri Lall Singh was in current charge of the office of Deputy Commissioner, Amritsar from May 16, 1964."}}, {"text": "Slui\n\nLall Singh", "label": "OTHER_PERSON", "start_char": 5495, "end_char": 5511, "source": "ner", "metadata": {"in_sentence": "No order appointing Slui\n\nLall Singh as District Magistrate of Amritsar as required under s. 10 (1) of the Code was passed."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 5565, "end_char": 5570, "source": "regex", "metadata": {"linked_statute_text": "District Magistrate G under the Code", "statute": "District Magistrate G under the Code"}}, {"text": "May, 16 till June 30, 1964", "label": "DATE", "start_char": 5966, "end_char": 5992, "source": "ner", "metadata": {"in_sentence": "At the same time.it may be noted that no other officer was posted as District Magistrate C from May, 16 till June 30, 1964 when the order of detention was passed."}}, {"text": "Iqbal Singh", "label": "JUDGE", "start_char": 6066, "end_char": 6077, "source": "ner", "metadata": {"in_sentence": "The new District Magistrate Shri Iqbal Singh took over charge as District Magistrate, Amritsar; on July 1, 1964 and Shri Lall Singh was then appointed as District Magistrate, Hissar."}}, {"text": "July 1, 1964", "label": "DATE", "start_char": 6132, "end_char": 6144, "source": "ner", "metadata": {"in_sentence": "The new District Magistrate Shri Iqbal Singh took over charge as District Magistrate, Amritsar; on July 1, 1964 and Shri Lall Singh was then appointed as District Magistrate, Hissar."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 6505, "end_char": 6510, "source": "regex", "metadata": {"linked_statute_text": "But as Shri Lall Singh was B already invested as an Additional District Magistrate with all the powers of the District Magistrate under the Code", "statute": "But as Shri Lall Singh was B already invested as an Additional District Magistrate with all the powers of the District Magistrate under the Code"}}, {"text": "June 30,\n\nF 1964", "label": "DATE", "start_char": 6992, "end_char": 7008, "source": "ner", "metadata": {"in_sentence": "Consequently the order of detention passed by him on June 30,\n\nF 1964, was without authority and liable to be set aside."}}, {"text": "State of Punjab", "label": "ORG", "start_char": 7108, "end_char": 7123, "source": "ner", "metadata": {"in_sentence": "In reply, the learned Advocate General for the State of Punjab has raised two points."}}, {"text": "Shri Lall Singh was invested with all the powers of a District Magistrate under the Code", "label": "STATUTE", "start_char": 7495, "end_char": 7583, "source": "regex", "metadata": {}}, {"text": "Lall", "label": "JUDGE", "start_char": 7843, "end_char": 7847, "source": "ner", "metadata": {"in_sentence": "In the second place it is urged that as Shri Lall\n\nI, A.I.R. 1964 S. C. 648."}}, {"text": "SUPREME COURT REPORTS (1965] 2 S.C.ll.", "label": "COURT", "start_char": 7876, "end_char": 7914, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS (1965] 2 S.C.ll."}}, {"text": "Singh", "label": "PETITIONER", "start_char": 7916, "end_char": 7921, "source": "ner", "metadata": {"in_sentence": "Singh was holding charge of the current duties of tile office of A the Deputy Commissioner and as no one else had been posted in Amritsar between May 16 and June 30, 1964 as District Magistrate he was in fact and in law the District Magistrate of Amritsar."}}, {"text": "May 16 and June 30, 1964", "label": "DATE", "start_char": 8062, "end_char": 8086, "source": "ner", "metadata": {"in_sentence": "Singh was holding charge of the current duties of tile office of A the Deputy Commissioner and as no one else had been posted in Amritsar between May 16 and June 30, 1964 as District Magistrate he was in fact and in law the District Magistrate of Amritsar."}}, {"text": "Section 3(1)", "label": "PROVISION", "start_char": 8538, "end_char": 8550, "source": "regex", "metadata": {"linked_statute_text": "Shri Lall Singh was invested with all the powers of a District Magistrate under the Code", "statute": "Shri Lall Singh was invested with all the powers of a District Magistrate under the Code"}}, {"text": "Central Government", "label": "ORG", "start_char": 8581, "end_char": 8599, "source": "ner", "metadata": {"in_sentence": "Section 3(1) of the Act gives power to the Central Government by notification in the Olli- C cial Gazette to make such rules as appear to it necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of community."}}, {"text": "India", "label": "GPE", "start_char": 8730, "end_char": 8735, "source": "ner", "metadata": {"in_sentence": "Section 3(1) of the Act gives power to the Central Government by notification in the Olli- C cial Gazette to make such rules as appear to it necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of community."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 8933, "end_char": 8942, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 10192, "end_char": 10196, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 10484, "end_char": 10489, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 10687, "end_char": 10691, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 10721, "end_char": 10726, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 11078, "end_char": 11083, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(2)(15)", "label": "PROVISION", "start_char": 11210, "end_char": 11221, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 12106, "end_char": 12110, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 12407, "end_char": 12411, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10(2)", "label": "PROVISION", "start_char": 13619, "end_char": 13632, "source": "regex", "metadata": {"statute": null}}, {"text": "even if an Additional District Magistrate has been appointed with all the powers under the Code", "label": "STATUTE", "start_char": 13961, "end_char": 14056, "source": "regex", "metadata": {}}, {"text": "s. 10", "label": "PROVISION", "start_char": 14204, "end_char": 14209, "source": "regex", "metadata": {"linked_statute_text": "But even if an Additional District Magistrate has been appointed with all the powers under the Code", "statute": "But even if an Additional District Magistrate has been appointed with all the powers under the Code"}}, {"text": "s. 11", "label": "PROVISION", "start_char": 14235, "end_char": 14240, "source": "regex", "metadata": {"linked_statute_text": "But even if an Additional District Magistrate has been appointed with all the powers under the Code", "statute": "But even if an Additional District Magistrate has been appointed with all the powers under the Code"}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 14872, "end_char": 14880, "source": "regex", "metadata": {"linked_statute_text": "But even if an Additional District Magistrate has been appointed with all the powers under the Code", "statute": "But even if an Additional District Magistrate has been appointed with all the powers under the Code"}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 15154, "end_char": 15162, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 15833, "end_char": 15838, "source": "regex", "metadata": {"statute": null}}, {"text": "May, 15, 1964", "label": "DATE", "start_char": 16168, "end_char": 16181, "source": "ner", "metadata": {"in_sentence": "But even though Shri Bhalla may have gone away after handing over charge on the afternoon of May, 15, 1964 Shri Lall Singh could not and did not become the District Magistrate of Amritsar C in the absence of a notification under s. l 0 { l ) of the Code by the State Government."}}, {"text": "s. 11", "label": "PROVISION", "start_char": 16707, "end_char": 16712, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 17373, "end_char": 17378, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 18430, "end_char": 18438, "source": "regex", "metadata": {"statute": null}}, {"text": "Wers of the District Magistrate under the Code", "label": "STATUTE", "start_char": 18550, "end_char": 18596, "source": "regex", "metadata": {}}, {"text": "s. 10", "label": "PROVISION", "start_char": 18909, "end_char": 18914, "source": "regex", "metadata": {"linked_statute_text": "Wers of the District Magistrate under the Code", "statute": "Wers of the District Magistrate under the Code"}}, {"text": "s. 10(3)", "label": "PROVISION", "start_char": 19332, "end_char": 19340, "source": "regex", "metadata": {"linked_statute_text": "Therefore even if the c Additional District Magistrate is invested with all the powers of a District Magistrate under the Code", "statute": "Therefore even if the c Additional District Magistrate is invested with all the powers of a District Magistrate under the Code"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 19564, "end_char": 19568, "source": "regex", "metadata": {"linked_statute_text": "Therefore even if the c Additional District Magistrate is invested with all the powers of a District Magistrate under the Code", "statute": "Therefore even if the c Additional District Magistrate is invested with all the powers of a District Magistrate under the Code"}}]}
{"document_id": "1965_2_853_857_EN", "year": 1965, "text": ".POORAN SINGH AND ANOTIIER\n\nSTATE OF MADHYA PRADESH\n\nFebruary 3, 1965\n\n[P. B. GAJENDRAGADKAR, C.J., M. Hll>AYATULLAH, I. c. SHAH\n\nANDS. M. SIKRI, JI.]\n\nMotor Vehicles Act, 1939 (4 of 1939), •· 130(1}-Endorsement on •ummo-Failure-Whether vitiates.\n\nFor offences under ss. 112 and 124 of the Motor Vehicles Act, the C Magistrate issued process against the appellants for their appearance in llDllrt by pleader, but did not make any endorsement thereon in terms of s. 130(1 )(b) of the Act. The appellants submitted that the SUllllllDDS\n\nserved on them were not according to law and the failure to make this endorsement had deprived them of their right conferred by the Act to intimate without appearing in Court their plea of guilty and remitting an amount not exceeding Rs. 25 as may be specified. The trial Magis- D Irate rejected this plea, but on being moved by the appellants, the Sessions Judge made a reference to the High Court recommending that the order passed by the Magistrate be set aside. The High Court declined to accept tho reference. In appeal by certificate :\n\nHELD : The Magistrate was not obliged in offences not specified in Part A of the Fifth Schedule to make an endorsement in terms of s. 130( I )(b) of the Act. (857 D]\n\nE The Magistrate taking cognizance of an offence was bound to issue summons of the nature prescribed by sub-<;. (I) of s. 130. But there is nothing in that sub-<; ection which indicates that he must endorse the summons in terms of both els. (a) & (b) : to hold that he was commanded would be to convert the conjunotion \"or\" into \"and\". (855 H-856 A]\n\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.\n\nF 215 of 1963.\n\nAppeal from the judgment and order dated April 30, 1963 of the Madhya Pradesh High Court in Criminal Revision No. 24 of 1963.\n\nRavinder Narain, 0.C. Mathur and J. B. Dadachanji, for the appellants.\n\nI. N. Shroff, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nShah, J. Station House Officer, Gharsiwa filed an information in the Court of the Magistrate, First Class, Raipur against the H two appellants complaining that they had on March 10, 1962 allowed three passengers to occupy the font seat in a public carrier and had loaded goods in excess of the sanctioned weight, and had\n\n854 SUPllBMB COUllT RBPORTS\n\n[1965] 2 S.C.R.\n\nthereby committed offences punishable under ss. 124 and 112 of A the Motor Vehicles Act 4 of 1939. The Magistrate issued process against the appellants for their appearance in Court by pleader, but did not make any endorsement thereon in terms of s. 130( I )(b) of the Act. The appellants submitted that the summonses served upon them were not according to law and the Magistrate by failing B to make an endorsement on the summonses as required by cl. (b) of sub-s. (1) of s. 130 of the Act had deprived them of the right conferred by the Act to intimate without appearing in Court their plea of guilty and remitting an amount not exceeding Rs. 25/- as may be specified. The Magistrate rejected this plea and directed that the case against the appellants be \"proceeded further accord- C ing to law\".\n\nThe Sessions Judge, Raipur in a petition moved by the appellants made a reference to the High Court of Madhya Pradesh recommending that the order passed by the Magistrate be set aside, for in his view the Trial Magistrate having failed to D comply with the mandatory terms of s. 130( 1) (b) the proceeding against the appellants was unlawful. The High Court of Madhya Pradesh declined to accept the reference.\n\nAgainst that order, with certificate granted by the High Court, the appellants have preferred this appeal.\n\nSection 130 of the Motor Vehicles Act which occurs in Ch. E IX which relates to \"Offences, penalties and procedure\" provides:\n\n\" ( 1 ) A Court taking cognizance of an offence under this Act shall, unless the offence is an offence specified in Part A of the Fifth Schedule, state upon the summons to be served on the accused person that he-\n\n(a) may appear by pleader and not in person, or\n\n(b) may by a specified date prior to the hearing of the charge plead guilty to the charge by registered letter and remit to the Court such sum not exceeding twenty-five rupees as the Court may specify.\n\n(2) Where the offence dealt with in accordance with sub-section (I ) is an offence specified in Part B of the Fifth Schedule, the accused person shall, if he pleads guilty of the charge, forward his licence fo the\n\nPOORAN SINGH V. STATE (Shah, /.) 855\n\nCourt with the letter containing his plea in order that the conviction may be endorsed on the licence. ( 3) Where an accused person pleads guilty and remits the sum specified and has complied with the provisions of sub-section ( 2) , no further proceedings in respect of the offence shall be taken against him, nor shall he be liable to be disqualified for holding or obtaining a licence by reason of his having pleaded guilty.\" Offences under ss. 112 & 124 of the Act with which the appellants were charged are not included in the first part of the C Fifth Schedule to the Act, and the Magistrate was therefore bound to comply with the tenns of s. 130 ( 1 ) . There can be no doubt on the plain tenns of s. 130(1) that the provision is mandatory.\n\nBut there was difference of opinion about the nature of the duty imposed by sub-s. (1) upon the Court taking cognizance of the complaint.\n\nThe Sessions Judge held that a D Magistrate taking cognizance of an offence of the nature specified had, by virtue of s. 130 ( 1 ) , to make an endorsement on the summons in terms of els. (a) & (b) and thereby to give an option to the person charged either to appear by pleader or to plead guilty to the charge by registered letter and remitting therewith the sum specified in the summons, and if the Magistrate failed E to give that option, the proceedings initiated would be liable to be set aside as infringing the mandatory provision of the Act.\n\nThe High Court was of the view that sub-s. (I) of s. 130 left an option to the Magistrate exercisable on a consideration of the materials placed before him when taking cognizance of an offence F to issue a summons without requiring the accused to appear by pleader to call upon him to plead guilty to the charge by registered letter and to remit the fine specified in the summons. According to the High Court therefore the Magistrate had the option to issue a summons with an endorsement in tenns of sub-s. (1 )(a) or of sub-s. (I) (b) and only if a summons was issued with the endorse- (; ment specified by sub-s. (l)(b) it was open to the accused to avail himself of the option to plead guilty and to claim the privilege mentioned in sub-s. ( 3) .\n\nIn our judgment the High Court was right in the view it has taken. The Magistrate taking cognizance of an offence is bound to issue summons of the nature prescribed by sub-s. (I) of s. 130. But H there is nothing in that sub-section which indicates that he must endorse the summons in tenns of both the clauses (a) & (b): to hold that he is so commanded would be to convert the conjunc- IASup./65-S\n\n856 SUPllBMB COURT REPORTS\n\n[1965) 2 S.C.R ·\n\ntion \"or\" into \"and\". There is nothing in the words used by the A Legislature which justifies such a conversion, and there are strong reasons which render such an interpretation wholly inconsistent with the scheme of the Act.\n\nThe procedure in sub-s. (1) of s. 130 applies to cases in which the offence charged is not one of the offences specified in B Part A of the Fifth Schedule, but. applies to the other offences under the Act.\n\nThe maximum penalty which is liable to be imposed in respect of these offences defined by the Act is in no case Rs. 25 /- or Jess. It could not have been the intention of the Legislature that the offender, even if the case was serious enough to warrant the imposition of the maximum penalty which is permis- C sible under the section to which the provision is applicable, to avoid imposition of a higher penalty than Rs. 25 /- by merely pleading guilty. Section 130, it appears, was enacted with a view to protect from harassment a person guilty of a minor infraction of the Motor Vehicles Act or the Rules framed thereunder by 0 dispensing with his presence before the Magistrate and in appropriate cases giving him an option to plead guilty to the charge and to remit the amount which can in no case exceed Rs. 25 /-.\n\nH the view which prevailed with the Sessions Judge were true, a person guilty of a serious offence meriting the maximum punishment prescribed for the offence may by pleading guilty under E sub-s. ( 1 )(b) escape by paying an amount which cannot exceed Rs. 25 /-. Again the Magistrate is authorised under s. 17 of the Act in convicting an offender of ari -offence under the Act, or of an offence in the commission of which a motor vehicle was used, in addition to imposing any. other punishment to pass an order declaring the offender unfit for holding a driving licence generally, F or for holding a driving licence for a particular class or description of vehicle. Such an order may be passed if it appears to the Court, having regard to the gravity of the offence, inaptitude shown by the offender or for other reasons, that he is unfit to obtain or hold a driving licence. But if the offender avails himself of the option given to him by the Magistrate of pleading G guilty, no further proceeding in respect of the offence can in view of sub-s. ( 3) of s. 130 be taken against him, and he will not be liable to be disqualified for holding or obtaining a licence, though he may otherwise eminently deserve to be disqualified for holding a licence.\n\nIt is true that to an offence punishable with imprisonment in the commission of which a motor vehicle was used s. 130(1)\n\nRAM DIAL v. STATE (Wanchoo, /,) 8 57\n\nA does not apply: s~ Sch. Five Part A Item 9. But there arc offences under the Motor Vehicles Act which do not fall within that description and also do not fall under other items, which arc punishable with imprisonment e.g. s. 113(2). There are also certain offe_nces which, if repeated but not otherwise, are liable to be punished with imprisonment e.g. certain offences under B ss. ll8A and under s. 123 of the Act. It would be difficult to hold that the Legislature could have intended that irrespective of the seriousness or gravity of the offence committeed, the offender wouldbe entitled to compound the offence by paying the amount specified in the sunimons, which the Magistrate would be bound C to accept, if the contention raised by the appellants is correct.\n\nHaving regard to the phraseology used by the Legislature which prima facie gives a discretion to the Magistrate exercisable at the. time of issuing the summons, and having regard also to the scheme of the Act, we are of the view that the High Court was right in holding that the Magistrate is not obliged in offences not D specified in Part A of the Fifth Schedule to make an endorsement in terms of cl. (b) of sub-s. (1) of s. 130 of the Act. We are of the opinion that the view to the contrary expressed by the High Court of Allahabad in State of U.P. v. Mangal Singh(') and the High Court of Assam in State of Assam v. Suleman Khan(') on E which the Sessions Judge relied is not correct.\n\nThe appeal therefore fails and is dismissed.\n\n(1) (1962) I Cr.LI. 684.\n\n(2) (1961) 2 Cr.LI. 869.\n\nAppeal dismissed.", "total_entities": 50, "entities": [{"text": "POORAN SINGH AND ANOTIIER", "label": "PETITIONER", "start_char": 1, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "POORAN SINGH AND ANOTHER", "offset_not_found": false}}, {"text": "STATE OF MADHYA PRADESH", "label": "RESPONDENT", "start_char": 28, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADHYA PRADESH", "offset_not_found": false}}, {"text": "February 3, 1965", "label": "DATE", "start_char": 53, "end_char": 69, "source": "ner", "metadata": {"in_sentence": ".POORAN SINGH AND ANOTIIER\n\nSTATE OF MADHYA PRADESH\n\nFebruary 3, 1965\n\n[P. B. GAJENDRAGADKAR, C.J., M. Hll>AYATULLAH, I. c. SHAH\n\nANDS."}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 72, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "I. c. SHAH", "label": "JUDGE", "start_char": 118, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "ANDS. M. SIKRI", "label": "JUDGE", "start_char": 130, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Motor Vehicles Act, 1939", "label": "STATUTE", "start_char": 152, "end_char": 176, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 112 and 124", "label": "PROVISION", "start_char": 267, "end_char": 282, "source": "regex", "metadata": {"linked_statute_text": "Motor Vehicles Act, 1939", "statute": "Motor Vehicles Act, 1939"}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 290, "end_char": 308, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 130(1 )(b)", "label": "PROVISION", "start_char": 462, "end_char": 475, "source": "regex", "metadata": {"linked_statute_text": "Motor Vehicles Act, 1939", "statute": "Motor Vehicles Act, 1939"}}, {"text": "Fifth Schedule", "label": "PROVISION", "start_char": 1159, "end_char": 1173, "source": "regex", "metadata": {"linked_statute_text": "Motor Vehicles Act, 1939", "statute": "Motor Vehicles Act, 1939"}}, {"text": "s. 130( I )(b)", "label": "PROVISION", "start_char": 1209, "end_char": 1223, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130", "label": "PROVISION", "start_char": 1364, "end_char": 1370, "source": "regex", "metadata": {"statute": null}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 1793, "end_char": 1808, "source": "ner", "metadata": {"in_sentence": "Ravinder Narain, 0.C. Mathur and J. B. Dadachanji, for the appellants."}}, {"text": "J. B. Dadachanji", "label": "LAWYER", "start_char": 1826, "end_char": 1842, "source": "ner", "metadata": {"in_sentence": "Ravinder Narain, 0.C. Mathur and J. B. Dadachanji, for the appellants."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 1865, "end_char": 1877, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff, for the respondent."}}, {"text": "Shah", "label": "JUDGE", "start_char": 1944, "end_char": 1948, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. Station House Officer, Gharsiwa filed an information in the Court of the Magistrate, First Class, Raipur against the H two appellants complaining that they had on March 10, 1962 allowed three passengers to occupy the font seat in a public carrier and had loaded goods in excess of the sanctioned weight, and had\n\n854 SUPllBMB COUllT RBPORTS\n\n[1965] 2 S.C.R.\n\nthereby committed offences punishable under ss."}}, {"text": "ss. 124 and 112", "label": "PROVISION", "start_char": 2356, "end_char": 2371, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 2381, "end_char": 2399, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 130( I )(b)", "label": "PROVISION", "start_char": 2559, "end_char": 2573, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130", "label": "PROVISION", "start_char": 2785, "end_char": 2791, "source": "regex", "metadata": {"statute": null}}, {"text": "Sessions Judge, Raipur", "label": "COURT", "start_char": 3117, "end_char": 3139, "source": "ner", "metadata": {"in_sentence": "The Sessions Judge, Raipur in a petition moved by the appellants made a reference to the High Court of Madhya Pradesh recommending that the order passed by the Magistrate be set aside, for in his view the Trial Magistrate having failed to D comply with the mandatory terms of s. 130( 1) (b) the proceeding against the appellants was unlawful."}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 3202, "end_char": 3230, "source": "ner", "metadata": {"in_sentence": "The Sessions Judge, Raipur in a petition moved by the appellants made a reference to the High Court of Madhya Pradesh recommending that the order passed by the Magistrate be set aside, for in his view the Trial Magistrate having failed to D comply with the mandatory terms of s. 130( 1) (b) the proceeding against the appellants was unlawful."}}, {"text": "s. 130( 1)", "label": "PROVISION", "start_char": 3389, "end_char": 3399, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 130", "label": "PROVISION", "start_char": 3632, "end_char": 3643, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 3651, "end_char": 3669, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Fifth Schedule", "label": "PROVISION", "start_char": 3889, "end_char": 3903, "source": "regex", "metadata": {"statute": null}}, {"text": "Fifth Schedule", "label": "PROVISION", "start_char": 4335, "end_char": 4349, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 112 & 124", "label": "PROVISION", "start_char": 4922, "end_char": 4935, "source": "regex", "metadata": {"statute": null}}, {"text": "Fifth Schedule", "label": "PROVISION", "start_char": 5030, "end_char": 5044, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130", "label": "PROVISION", "start_char": 5124, "end_char": 5130, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130(1)", "label": "PROVISION", "start_char": 5183, "end_char": 5192, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130", "label": "PROVISION", "start_char": 5484, "end_char": 5490, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130", "label": "PROVISION", "start_char": 5967, "end_char": 5973, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130", "label": "PROVISION", "start_char": 6850, "end_char": 6856, "source": "regex", "metadata": {"statute": null}}, {"text": "S\n\n856", "label": "PROVISION", "start_char": 7065, "end_char": 7071, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130", "label": "PROVISION", "start_char": 7372, "end_char": 7378, "source": "regex", "metadata": {"statute": null}}, {"text": "Fifth Schedule", "label": "PROVISION", "start_char": 7481, "end_char": 7495, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 130", "label": "PROVISION", "start_char": 8002, "end_char": 8013, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 8123, "end_char": 8141, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 17", "label": "PROVISION", "start_char": 8673, "end_char": 8678, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130", "label": "PROVISION", "start_char": 9425, "end_char": 9431, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130(1)", "label": "PROVISION", "start_char": 9731, "end_char": 9740, "source": "regex", "metadata": {"statute": null}}, {"text": "arc offences under the Motor Vehicles Act", "label": "STATUTE", "start_char": 9836, "end_char": 9877, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 113(2)", "label": "PROVISION", "start_char": 10004, "end_char": 10013, "source": "regex", "metadata": {"linked_statute_text": "But there arc offences under the Motor Vehicles Act", "statute": "But there arc offences under the Motor Vehicles Act"}}, {"text": "s. 123", "label": "PROVISION", "start_char": 10179, "end_char": 10185, "source": "regex", "metadata": {"linked_statute_text": "But there arc offences under the Motor Vehicles Act", "statute": "But there arc offences under the Motor Vehicles Act"}}, {"text": "Fifth Schedule", "label": "PROVISION", "start_char": 10901, "end_char": 10915, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 130", "label": "PROVISION", "start_char": 10976, "end_char": 10982, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 11064, "end_char": 11087, "source": "ner", "metadata": {"in_sentence": "We are of the opinion that the view to the contrary expressed by the High Court of Allahabad in State of U.P. v. Mangal Singh(') and the High Court of Assam in State of Assam v. Suleman Khan(') on E which the Sessions Judge relied is not correct."}}, {"text": "High Court of Assam", "label": "COURT", "start_char": 11132, "end_char": 11151, "source": "ner", "metadata": {"in_sentence": "We are of the opinion that the view to the contrary expressed by the High Court of Allahabad in State of U.P. v. Mangal Singh(') and the High Court of Assam in State of Assam v. Suleman Khan(') on E which the Sessions Judge relied is not correct."}}]}
{"document_id": "1965_2_858_867_EN", "year": 1965, "text": "RAM DIAL AND OTHERS v.\n\nTHE STATE OF PUNJAB\n\nWith connected Writ Petition\n\nFebruary 3, 1965\n\n[K. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH,\n\nJ. R. MUDHOLKAR AND S. M. S!KRI, JJ.]\n\nPunjab Municipalities Act (Ill of 1911), s. 14(e)-Power l>f. Government to remove member in public interest_;_No provision for haring-- Similar power under •· 16(1) subject to hearing-Whether •· 14(e) C violative of Art. 14-.r. 14 giving power to Government to determine what\n\nit deemed to be in 'public interest'-Power whether unconstitutionaL\n\nThe appellants, who bad been elected members of the Mnnidpal Committee, Batala, challenged the Notification issued under s. 14(e) <A the Punjab Municipalities Act (III of 1911) directing their -ai and\n\ndisqualifying them from election for '3 period of one year. It was contended on their behalf that there were two provisions in the Act, I.e. L 14(e) D and s. 16(1) clauses (a) to (g) under which a member could be removed in the public interest; and whereas action could only be taken under s. 16(1) after notice and an opponunity for a bearing to the member concerned there was no such requirement in the case of s. 14(e). This section was therefore hit by Article 14 and consequently the Notillcaliom were invalid.\n\nHELD: (per Wanchoo, Hidayatullab, Shah and Sikri, JJ.) H the E State Government intended to remove a person for any of the reasons given under s. 16(1) cuases (a) to (g)-it could take action under s. 14(e) and thus circumvent the provision ins. 16(1) for a bearing. The\n\nrelevant pan of s. 14(e) entirely covered s. 16(1) but was more drastic.\n\nIt was therefore obviously discriminatory and violative of Art 14 of the\n\nConstitution. [863 C-E]\n\nShri Radeshayam Khare v. The State of Madhya Pradesh [1959] S.C.R. 1440, distinguished.\n\nF No assistance could be derived by the respondent State from the~ that under the proviso to s. 24(3), the State Government bad power to\n\nrefuse to notify the election of a person elected ou any of the grounds mentioned in s. 16( I) and there was no provision in this connection for notice and hearing of the person elected. Apan from the question of the constitutionality of this provision, there wa~ no connection between the viso to s. 24(3) and the provision contained in s. 14(e). The proviso to G s. 24(3) was complete in itself and dealt with a situation where the State Government refused to notify the election of a person who bad been\n\nelected. Section 14(e) on the other hand provided for the vacation of the seat of a member after he bad taken the oath of office. Therefore the\n\nconstitutionality or otherwise of s. 14 ( e) would depend upon its 'contrast with s. 16( l) which also provided for the removal of a member. [864\n\nA-CJ\n\nPer Mudholkar, J.-The power conferred by s. 14 upon the State H Government to require that the seat of any member shall be. vacated \"f\" any reason which it may. deem to affect the public interest\" is wli1 ... tional. The expression 'public interest' Is of wide import and what would\n\nA be a matter which is in the public interest would necessarily depend upon the time and place and ci::cum tances with reterence to which the consideration of the question arises. But it is not a vague or indefinite ground_\n\nThere is no guidance in the Act for determining \\vhat matters, though not in public inte:est may yet be capable of being deemed to affect the public interest. [866 E-G; 867 A-CJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 300- B 302 of 1964.\n\nAppeals from the judgment and order dated March 16, 1962, of the Punjab High Court in Civil Writ Nos. 1194 to 1198 of 1961.\n\nWITH\n\nC Writ Petition No. 126 of 1964.\n\nUnder Art. 32 of the Constitution of India for enforcement of the fundamental rights.\n\nN. C. Chatterjee, V. S. Sawhney, S. S. Khanduja, S. K. Manchanda, B. R. Kohli and Ganpat Rai, for the appellants (in all D the appeals) the petitioner (in the Writ Petition). /. N. Kaushal, Advocate-General for the State of Punjab, B. K. Khanna and R. N. Sachthey, for the respondent (in all the appeal> and the writ petition).\n\nThe Judgment of WANCHOO, HIDAYATULLAH, SHAH and SIKRI E JJ. was de1ivered by WANCHOO, J. MUDHOLKAR J. gave an independent judgment.\n\nWanchoo, J.\n\nThese three appeals are against the judgment of the Punjab High Court on certificates granted by that Court.\n\nThe writ petition has been filed by Uma Shankar appellant in this F Court and raises the same question as in the ap\"eals, namely, whether s. 14(e) of the Punjab Municipalities Act, No. III of 1911 (hereinafter referred to as the Act) i0• unconstitutional inasmuch as it violates Art. 14 of the Constitution. The appeals and the writ petition will therefore be dealt with together.\n\nWe may add that we are not concerned in these appeals with s 14 (a) and G\n\n(b) and that part of s. 14 (e) which provides for recall at the request of the majority of the electors, and express no opinion in that behalf.\n\nThe question arises in this way. The appellants were elected to the l\\1unicipal Committee, Batala in elections held on January H\n\n22. 1961. The result of the elections was notified in the Punjab Goverrunent Gazette on February 27, 1961. The new members took oath on March 16, 1961 and ''egan functioning from that date.\n\nOn August 4, 1961, notifications dated July 26, 1961\n\nSUPREME COURT REPORTS\n\n[1965] 2 S.C.R.\n\nwere issued in which it was stated that the Governor of Punjab for A reasons of public interest was pleased to direct that the seats of the three appellants shall be vacated from the date of the publication of the notifications in the State Gazette and to direct further that under sub-s. ( 3) of s. 16 of the Act, the three appellants mall be disqualified for election for a period of one :'ear from the date specified.\n\nNo notice was issued to the appeilants to B show cause why their seats be not vacated and no hearing was given to them before the action in question was taken by the Governor of Punjab.\n\nThe appellants' case was that after the notifications vacating their seats and disqualifying them had been issued, theY. came to know that these notifications had been issued C on the basis of a resolution passed by the out-going municipal committee on March 13, 1961 to the effect that the appellants had taken part in a demonstration on March 10, 1961 and had broken some glass panes of the municipal building. The appellants' further case was that the outgoing municipal committee had been dominated by members belonging to the Congress Party; D but these members had mostly been defeated in the fresh elections held on January 22, 1961 and it was in consequence that the resolution was passed mala fide by these persons in order to harm the appellants. A number of grounds were taken in the petitions filed before the High Court challenging the order of the Governor of Punjab. Now however we are only concerned with one ground, E namely, that the provision contained in s. 14(e) was discriminatory and hit by Art. 14 of the Constitution. It appears however that this ground was not urged before the High Court and that is why the writ petition has been filed in this Court specifically raising this point again, and thus in the present appeals and the writ petition we are only concerned with the question whether F s. 14 ( e) of the Act is bad as it violates Art. 14 of the Constitution.\n\nWe are of opinion that the appeals must succeed on this point.\n\nIt is necessarv in this connection to refer to s. 14(e), s. 16 and s. 24 ( 3) of the Act.\n\nThe relevant part of section 14 ( e) with G which we are concerned provides that notwithstanding anything in the foregoing sections of Chapter III, which deals with constitution of committees, appointment and election of members, term of office of members of municipal committees, the State Government may, at any time, for any reason which it may deem to affect the public interest, by notification, direct that the seat, of H any specified member, whether electd or appointed, shall be vacated on a given date, and in such case, such seat shall be\n\nA vacated accordingly, notwithstanding anything in the Act or in the rules made thereunder. Further sub-s. ( 3) of s. 16 provides that \"~ person whose seat has been vacated under the provisions of secon 14 ( e) may be disqualified for election for a period not exceedmg five years.\" There is no provision for giving notice to B a member against whom action is taken under s. 14 ( e) and he is\n\nnot entitled to any hearing before action is taken against him.\n\nFurther action can be taken against a member for any reason which the State Government may deem to affect the public interest.\n\nSection 16 is another provision which gives power to the C State Government to remove any member of a municipal committee. This power is exercised for reasons given in cl. (a) to\n\ncl. (g) of s. 16 (1). The proviso to s. 16 (1) lays down that \"before the State Government notifies the removal of a member under this section, the reasons for his proposed removal shall be D communicated to the member concerned, and he shall be given an opportunity of tendering an explanation in writing.\" The proviso therefore requires a hearing before the State Government takes action under s. 16 (l). Sub-section (2) of s. 16 provides for disqualification and says inter alia that any person removed under s. 16 (l) shall be disqualified for election for a E period not exceeding five years. There is a slight difference here inasmuch as under this provision there must be disqualification for some period not exceeding five years, though if a member's seat is vacated under s. 14 ( e) the disqualification is entirely in the discretion of the State Government and is not imperative.\n\nThat however has no effect on. the question whether the relevant F part of s. 14 (e) is unconstitutional as it is hit by Art. 14.\n\nReference may now be made to s. 24 on which reliance has been placed en behalf of tl1e State.\n\nSection 24 ( 1) inter alia prescribes the oath before a member can begin to function.\n\nSection 24 ( 2) lays down inter aiia that if a person omits or G refuses to take the oath as provided in sub-s. ( 1) within. three\n\nmonilis of the date of the notification of his election or within such further period as the State Government may consider reasonable, his election becomes invalid.\n\nSub-section ( 3) of\n\n11. 24 provides inter alia that where the election becomes invalid under sub-s. (2), a fresh election shall be held.\n\nThe proviso to H sub-s. (3) on which stress has been laid on behalf of the State 1ays down inter alia that the State Government may refuse to notify the election as member of any person who could be\n\n162 SUPJlBMB COURT RBPORTS\n\n(1965] 2 S.C.R\n\nremoved from office by the State Government under any of the A provisions of s. 16 or of any person whom the State Government for any reason which it may deem to affect the public interests may consider to be unfitted to be a member of the committee, and upon such refusal the election of such person shall be void.\n\nThe argument on behalf of the appellants is that s. 16 which B gives power to the State Government to remove a member provides that before that power can be exercised, reasons for the removal have to be communicated to the member concerned and he is to be given an opportunity of tendering his explanation in . writing. So it is urged that before action can be taken to remove a member under s. 16, the proviso thereof requires that the memc ber concerned is to be given a hearing as provided therein: The argument proceeds that the relevant part of s. 14 ( e) also provides in effect for the removal of a member though it actually says that the seat shall be vacated and that this removal has to be for any reason which in the opinion of the State Government affects the public interest. It is urged that whens. 16( I) provides D for removal for reasons given in els. (a) to (g), that removal also is in the public intere•t.\n\nTherefore there are two provisions in the Act for removal of a member in the pub!icinterest, one contained in s. 14( e) and the other in s. 16. Where the Stnte Government takes action under s. 16 ( 1), it has to give a hearing in terms of the proviso thereof to the member concerned, but if for exactly the same reason the State Government chooses to take action under s. 14(e) it need not give any opportunity to the member to show cause why he <hould not be removed. Further\n\nit is submitted that though s. 14 ( e) may be said to be wider inasmuch as els. (a) to ( g) may in a conceivable case not com- F pletely cover all that may be included in the term \"public interests\", the removal for reasons given in els. (a) to (g) in s. 16(1) is in public interest and therefore what is contained in s. 16 (I ) is certainly all covered by s. 14 ( e). In consequence there are two provisions in the Act for removing a member, one contained in s. 16 where the State Government cannot remove the member 'without giving him a hearing in the manner provided in the proviso, and the other in s. 14 ( e) where no hearing is to be given and the member is not even called upon to show cause.\n\nFinally it is urged that it depends entirely on the State Government to use its powers either under s. 14(e) or under s. 16(1), where the two overlap and therefore there is clear discrimination, as the provision in s. 14 ( e) is more drastic and does not even 'provide for hearing the member concerned.\n\nllAM DIAL v. STATE (WlilllChOO, /,) 863'\n\nA We arc of opinion that these contentions on behalf of the appellants are correct. There is no doubt that the removal contemplated in s. 16(1) for reasons in els. (a) to (g) thereof, as their content shows, is in the public interest and the proviso to s. 16 ( 1 ) provides for a hearing in the manner indicated therein.\n\nOn the other hand s. 14 ( e) which also provides for removal in B the public interest makes no provision for hearing the member to\n\nbe removed. . Even if s. 14 ( e) is wider than ~. 16 (1 ) , there is no doubt that all the reasons given in els. (a) to (g) are in the public interest and therefore even if the State Government intends to remove a person for any reasons given in els. (a) to (g) it can C take action under s. 14 ( e) and thus circumvent the provisions contained 4' the proviso to s. 16 ( 1) for hearing. Thus there is llP doubt thats. 14(e) which entirely covers s. 16(1) is more drastic than s. 16(1) and unlikes. 16(1) makes no provision for even calling upon the member concerned to explain.\n\nIn this view of the matter it is clear that for the same reasons the State D Government may take action under s. 16 (1) in which case it\n\nwill have to give notice to the member concerned and take his explanation as provided in the proviso to s. 16 (I ) ; on the other hand it may choose to take action under s. 14 ( e) in which case it need not give any notice to the member and ask for an explanation from him.\n\nThis is obviously discriminatory and therefore :S this part of s. 14(e) must be struck down as it is hit by Art. 14 of the Constitution.\n\nReliance in this connection is placed on behalf of the State on the proviso to s. 24(3). Section 24(1) to (3) inter alia provides for what happens where a member omits or refuses to I' take oath as provided therein. Then comes the proviso to s. 24 (3), which gives power to the State Government to refuse to notify the election of a person elected on any of the grounds mentioned in s. 16(1). It is not necessary for us to decide whether the State Government can take action under this proviso read with s. 16 (I) without giving notice as provided in the G proviso to s. 16 (1). That question may have to be decided in a case where the State Government takes action under this part of the proviso to s. 24(3) without giving notice to the person concerned under the proviso to s. 16 (1) and without giving him any opportunity of hearing as provided therein. The provi\"o to s. 24 ( 3) further provides that the State Government may refuse H to notify the name of any person elected if in its opinion he is unfit to be a member of a municipal committee on ground ot public interest. It is urged that there.is no provision in this cori-\n\n864 SUPll.B'MB COURT 11.BPORTS\n\n(1965] 2 S.C.11.\n\nnection for notice and hearing of the person elected.\n\nThat A seems to be so, but again the question may arise in a proper case whether this provision would be constitutional. We see no connection between the proviso to s. 24 ( 3) and the provision contained in s. 14(e). The proviso to s. 24(3) is completll in itself and deals with a situation where the State Govemme11.t refuses to notify the election of a person who has been elected.\n\nB Section 14(e) on the other hand provides for vacation of the seat of a member after he has taken the oath of office. Therefore the constitutionality or otherwise of s. 14 ( e) will depend upon its contrast with s. 16 ( 1) which also provides for removal of a ruember.\n\nAs we have already indicated on comparing the two C provisions both of which provide for removal of a member in public interest we find that the provision contained in s. 14(e)\n\nas compared to the provision in s. 16(1) is more drastic and arbitrary and denies the member concerned an opportunity being heard as provided in s. 16(1) by the proviso thereof. Consequently we are of opinion that this part of s. 14(e) is discrimina D tory and must be struck down as unconstitutional under Art. 14 of the Constitution.\n\nIn this connection our attention is drawn to Shri Radeshyam Khare v. The State of Madhya Pradesh(') on which reliance is\n\nplaced on behalf of the State. In that case this Court was con E cemed with ss. 53A and 57 of the C.P. and Berar Municipalities Act which to a certain extent were held to overlap. The argument under Art. 14 did not really arise in that case because the two provisions dealt with two different situations. Under s. 57 the State Government had the power to dissolve a committee after giving it a reasonable opportunity to furnish its explanation. r . Under s. 53A the committee was not dissolved, but the State\n\nGovernment had the power to appoint an executive officer and confer upon him such powers of the committee, its president, vice-president or secretary as it thought fit, though the reason for taking action under s. 53A (I) apparently overlapped the reasons for di•solving a committee under s. 57 (1).\n\nBecause of this G difference in the scope of the two provisions contained in ss. 53A and 57, there could be no question of application of Art. 14 to that case.\n\nIn the present case, however, s. 16(1) which deals with removal of a member for reasons given in els. (a) to (g) is com- H pletely covered by s. 14(e) which deals with vacationof a SC!lt\n\n(!) (1959] s. c. 11. 1440.\n\nA in the public interest, and it is open to the State Government either to proceed under one provision or the other for exactly the same reasons.\n\nOne of the provisions provides for notice and hearing while the other does not and is therefore more drastic and arbitrary. In these circumstances there is in our opinion a clear discrimination in view of Art. 14 and the State Government can- B not take advantage of the decision in Shri Radeshyam Khare's\n\ncase(').\n\nWe therefore allow the appeals as well as the writ petition and declaring s. 14{ e) insofar as it gives power to the State Government to vacate a seat on the ground of public interest to C be unconstitutional, set aside the notifications vacating the seats of the appellants.\n\nThe direction as to disqualification therefore also fails.\n\nThe appellants will get their costs from the State throughout. One set of hearing fee. No costs in the writ petition.\n\nMudholkar, 1. I have read the judgment prepared by my D brother Wanchoo and while I agree with him that the appeals\n\nmust be allowed 1 would prefer to give my own reasons for that conclusion.\n\nThe appellants in these three appeals were elected to the Municipal Committee, Batala in the elections held on January 22, E\n\n1961. On August 4, 1961, that is, after these persons started functioning as members of the Municipal Committee the Government of Punjab issued a notification under s. 14, cl. ( e) of the Punjab Municipalities Act, 1911 in which it was stated that the Governor of Punjab for reasons of public interest was pleased to direct that the seats of these appellants shall be vacated from the F date of publication of the notification and further stated that they would be disqualified for election for a period of one year from the date specified.\n\nThis notification is challenged by the appellants on the ground that the provisions contained in s. 14 ( e) of the Act under which it was issued being discriminatory were G rendered void by Art. 14 of the Constitution\n\nSection 14 of the Act as it now stands runs thus :\n\n\"Notwithstanding anything in the foregoing sections of this chapter, the State Government may at any time for any reaSOI\\ which it may deem to affect the public H intere1ts, or at the request of a majority of the electors, by notification, direct-\n\n(!) [19S9J S. C. R. 1440.\n\n\n(a) that the number of seats on any committee shall A be increased or reduced;\n\n(b) that any places on a committee which are required to be filled by election shall be filled by appointment, if a sufficient number of members has not been elected; B\n\n(e) that the seat, of any specified member, whether elected or appointed, shall be vacated on a given date, and in such case, such seat shall be vacated accordingly, notwithstanding anything in C this Act or in the rules made thereunder.\"\n\nIt would be clear from a perusal of the above provision that powers conferred by s. 14 can be exercised by the State Government (i) for any reason which it may deem fit to affect the public interest or (ii) at the request of the majority of the electors. We D are not concerned in this case with the second circumstance and, therefore, it is unnecessary to consider whether that part of s. 14 which enables the State Government to take action at the request • of a majority of electors is valid or not.\n\nSimilarly we are not concerned in these appeals with t!J.e powers exercisable by the State Government under els. (a) and (b). All that arises for E consideration before us is whether the conferral of power upon the State Government to require that the seat of any specified member of the Committee shall be vacated \"for any reason which it may deem to affect the public interest\" is valid. The expression \"public interest\" is of wide import and what would be a matter F which is in the public interest would necessarily depend upon the time and place and circumstances with reference to which the consideration of the question arises. But it is not a vague or indefinite ground, though the Act does not define what matters would be regarded as being in the public interest. It would 0eem\n\nthat all grounds set out in s. 16, which confers upon the State G Government the power to remove any member of a Committee and sets out a number of grounds uoon which this could b~ done, would be in the public interest. Section 14, however, apart from the fact that the power it confers upon the State Government is not limited to matters set out under s. 16. confrs u,., on the Government the power to determine not merely what is in the nublic H interest but also what \"for any reason which it may deem to affect th.e public interest.\" This would suggest that the power so\n\nA conferred would extend to matters which may not be in the public interest. For, that would be the effect of introducing the fiction created by the words \"for any reason which it may deem\". There is no guidance in the Act for determining what matters, though not in public interest, may yet be capable of being deemed to be in the public interest by the State Government. In the circum- B stances it must be held that the power which conferred upon the\n\nState Government being unguided is unconstitutional.\n\nFor this reason I hold that s. 14 in so far as it confers power on the State Government to require a seat of a member of a committee to be vacated for any reason which it may deem to affect public interest c as violative of Art. 14 of the Constitution and, therefore, unconstitutional. In the result each of the appeals is allowed with costs and I accordingly do so.\n\nAppeals allowed.", "total_entities": 163, "entities": [{"text": "RAM DIAL AND OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "RAM DIAL AND OTHERS", "offset_not_found": false}}, {"text": "THE STATE OF PUNJAB", "label": "RESPONDENT", "start_char": 24, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF PUNJAB", "offset_not_found": false}}, {"text": "February 3, 1965", "label": "DATE", "start_char": 75, "end_char": 91, "source": "ner", "metadata": {"in_sentence": "RAM DIAL AND OTHERS v.\n\nTHE STATE OF PUNJAB\n\nWith connected Writ Petition\n\nFebruary 3, 1965\n\n[K. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH,\n\nJ. R. MUDHOLKAR AND S. M. S!KRI, JJ.]"}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 94, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "K.N. 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Kohli", "label": "LAWYER", "start_char": 3795, "end_char": 3806, "source": "ner", "metadata": {"in_sentence": "N. C. Chatterjee, V. S. Sawhney, S. S. Khanduja, S. K. Manchanda, B. R. Kohli and Ganpat Rai, for the appellants (in all D the appeals) the petitioner (in the Writ Petition). /."}}, {"text": "Ganpat Rai", "label": "LAWYER", "start_char": 3811, "end_char": 3821, "source": "ner", "metadata": {"in_sentence": "N. C. Chatterjee, V. S. Sawhney, S. S. Khanduja, S. K. Manchanda, B. R. Kohli and Ganpat Rai, for the appellants (in all D the appeals) the petitioner (in the Writ Petition). /."}}, {"text": "N. Kaushal", "label": "LAWYER", "start_char": 3907, "end_char": 3917, "source": "ner", "metadata": {"in_sentence": "N. Kaushal, Advocate-General for the State of Punjab, B. K. Khanna and R. N. Sachthey, for the respondent (in all the appeal> and the writ petition)."}}, {"text": "B. K. Khanna", "label": "LAWYER", "start_char": 3961, "end_char": 3973, "source": "ner", "metadata": {"in_sentence": "N. Kaushal, Advocate-General for the State of Punjab, B. K. Khanna and R. N. Sachthey, for the respondent (in all the appeal> and the writ petition)."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3978, "end_char": 3992, "source": "ner", "metadata": {"in_sentence": "N. Kaushal, Advocate-General for the State of Punjab, B. K. Khanna and R. N. Sachthey, for the respondent (in all the appeal> and the writ petition)."}}, {"text": "WANCHOO", "label": "JUDGE", "start_char": 4074, "end_char": 4081, "source": "ner", "metadata": {"in_sentence": "The Judgment of WANCHOO, HIDAYATULLAH, SHAH and SIKRI E JJ.", "canonical_name": "WANCHOO"}}, {"text": "HIDAYATULLAH", "label": "JUDGE", "start_char": 4083, "end_char": 4095, "source": "ner", "metadata": {"in_sentence": "The Judgment of WANCHOO, HIDAYATULLAH, SHAH and SIKRI E JJ."}}, {"text": "SHAH", "label": "JUDGE", "start_char": 4097, "end_char": 4101, "source": "ner", "metadata": {"in_sentence": "The Judgment of WANCHOO, HIDAYATULLAH, SHAH and SIKRI E JJ."}}, {"text": "SIKRI", "label": "JUDGE", "start_char": 4106, "end_char": 4111, "source": "ner", "metadata": {"in_sentence": "The Judgment of WANCHOO, HIDAYATULLAH, SHAH and SIKRI E JJ.", "canonical_name": "Sikri, JJ."}}, {"text": "MUDHOLKAR", "label": "JUDGE", "start_char": 4147, "end_char": 4156, "source": "ner", "metadata": {"in_sentence": "was de1ivered by WANCHOO, J. MUDHOLKAR J. gave an independent judgment.", "canonical_name": "R. MUDHOLKAR"}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 4256, "end_char": 4273, "source": "ner", "metadata": {"in_sentence": "Wanchoo, J.\n\nThese three appeals are against the judgment of the Punjab High Court on certificates granted by that Court."}}, {"text": "Uma Shankar", "label": "OTHER_PERSON", "start_char": 4350, "end_char": 4361, "source": "ner", "metadata": {"in_sentence": "The writ petition has been filed by Uma Shankar appellant in this F Court and raises the same question as in the ap\"eals, namely, whether s. 14(e) of the Punjab Municipalities Act, No."}}, {"text": "s. 14(e)", "label": "PROVISION", "start_char": 4452, "end_char": 4460, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 4593, "end_char": 4600, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s 14", "label": "PROVISION", "start_char": 4755, "end_char": 4759, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 4792, "end_char": 4797, "source": "regex", "metadata": {"statute": null}}, {"text": "l\\1unicipal Committee, Batala", "label": "ORG", "start_char": 4984, "end_char": 5013, "source": "ner", "metadata": {"in_sentence": "The appellants were elected to the l\\1unicipal Committee, Batala in elections held on January H\n\n22."}}, {"text": "January H\n\n22. 1961", "label": "DATE", "start_char": 5035, "end_char": 5054, "source": "ner", "metadata": {"in_sentence": "The appellants were elected to the l\\1unicipal Committee, Batala in elections held on January H\n\n22."}}, {"text": "August 4, 1961", "label": "DATE", "start_char": 5240, "end_char": 5254, "source": "ner", "metadata": {"in_sentence": "On August 4, 1961, notifications dated July 26, 1961\n\nSUPREME COURT REPORTS\n\n[1965] 2 S.C.R.\n\nwere issued in which it was stated that the Governor of Punjab for A reasons of public interest was pleased to direct that the seats of the three appellants shall be vacated from the date of the publication of the notifications in the State Gazette and to direct further that under sub-s. ( 3) of s. 16 of the Act, the three appellants mall be disqualified for election for a period of one :'ear from the date specified."}}, {"text": "SUPREME COURT REPORTS\n\n[1965] 2 S.C.R.", "label": "COURT", "start_char": 5291, "end_char": 5329, "source": "ner", "metadata": {"in_sentence": "On August 4, 1961, notifications dated July 26, 1961\n\nSUPREME COURT REPORTS\n\n[1965] 2 S.C.R.\n\nwere issued in which it was stated that the Governor of Punjab for A reasons of public interest was pleased to direct that the seats of the three appellants shall be vacated from the date of the publication of the notifications in the State Gazette and to direct further that under sub-s. ( 3) of s. 16 of the Act, the three appellants mall be disqualified for election for a period of one :'ear from the date specified."}}, {"text": "Punjab", "label": "GPE", "start_char": 5387, "end_char": 5393, "source": "ner", "metadata": {"in_sentence": "On August 4, 1961, notifications dated July 26, 1961\n\nSUPREME COURT REPORTS\n\n[1965] 2 S.C.R.\n\nwere issued in which it was stated that the Governor of Punjab for A reasons of public interest was pleased to direct that the seats of the three appellants shall be vacated from the date of the publication of the notifications in the State Gazette and to direct further that under sub-s. ( 3) of s. 16 of the Act, the three appellants mall be disqualified for election for a period of one :'ear from the date specified."}}, {"text": "s. 16", "label": "PROVISION", "start_char": 5628, "end_char": 5633, "source": "regex", "metadata": {"statute": null}}, {"text": "March 13, 1961", "label": "DATE", "start_char": 6193, "end_char": 6207, "source": "ner", "metadata": {"in_sentence": "The appellants' case was that after the notifications vacating their seats and disqualifying them had been issued, theY. came to know that these notifications had been issued C on the basis of a resolution passed by the out-going municipal committee on March 13, 1961 to the effect that the appellants had taken part in a demonstration on March 10, 1961 and had broken some glass panes of the municipal building."}}, {"text": "March 10, 1961", "label": "DATE", "start_char": 6279, "end_char": 6293, "source": "ner", "metadata": {"in_sentence": "The appellants' case was that after the notifications vacating their seats and disqualifying them had been issued, theY. came to know that these notifications had been issued C on the basis of a resolution passed by the out-going municipal committee on March 13, 1961 to the effect that the appellants had taken part in a demonstration on March 10, 1961 and had broken some glass panes of the municipal building."}}, {"text": "January 22, 1961", "label": "DATE", "start_char": 6563, "end_char": 6579, "source": "ner", "metadata": {"in_sentence": "The appellants' further case was that the outgoing municipal committee had been dominated by members belonging to the Congress Party; D but these members had mostly been defeated in the fresh elections held on January 22, 1961 and it was in consequence that the resolution was passed mala fide by these persons in order to harm the appellants."}}, {"text": "s. 14(e)", "label": "PROVISION", "start_char": 6915, "end_char": 6923, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 6954, "end_char": 6961, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 7261, "end_char": 7266, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 7305, "end_char": 7312, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 14(e)", "label": "PROVISION", "start_char": 7446, "end_char": 7454, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 7456, "end_char": 7461, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 7466, "end_char": 7471, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 7511, "end_char": 7521, "source": 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{"text": "s. 16(1)", "label": "PROVISION", "start_char": 14363, "end_char": 14371, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 14393, "end_char": 14401, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 14606, "end_char": 14611, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 14738, "end_char": 14743, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 14804, "end_char": 14809, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(e)", "label": "PROVISION", "start_char": 14972, "end_char": 14980, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 15017, "end_char": 15024, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 24(3)", "label": "PROVISION", "start_char": 15126, "end_char": 15134, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 24(1)", "label": "PROVISION", "start_char": 15136, "end_char": 15149, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 15289, "end_char": 15294, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 15430, "end_char": 15438, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 15551, "end_char": 15556, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 15615, "end_char": 15620, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(3)", "label": "PROVISION", "start_char": 15747, "end_char": 15755, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 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null}}, {"text": "s. 14(e)", "label": "PROVISION", "start_char": 17110, "end_char": 17118, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 17152, "end_char": 17160, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 17265, "end_char": 17273, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(e)", "label": "PROVISION", "start_char": 17347, "end_char": 17355, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 17427, "end_char": 17434, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "ss. 53A and 57", "label": "PROVISION", "start_char": 17655, "end_char": 17669, "source": "regex", "metadata": {"statute": null}}, {"text": "Berar Municipalities Act", "label": "STATUTE", "start_char": 17686, "end_char": 17710, "source": "regex", "metadata": {}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 17778, "end_char": 17785, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipalities Act", "statute": "Berar Municipalities Act"}}, {"text": "s. 57", "label": "PROVISION", "start_char": 17890, "end_char": 17895, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipalities Act", "statute": "Berar Municipalities Act"}}, {"text": "s. 53A", "label": "PROVISION", "start_char": 18034, "end_char": 18040, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipalities Act", "statute": "Berar Municipalities Act"}}, {"text": "s. 53A", "label": "PROVISION", "start_char": 18300, "end_char": 18306, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipalities Act", "statute": "Berar Municipalities Act"}}, {"text": "s. 57", "label": "PROVISION", "start_char": 18378, "end_char": 18383, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipalities Act", "statute": "Berar Municipalities Act"}}, {"text": "ss. 53A and 57", "label": "PROVISION", "start_char": 18467, "end_char": 18481, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipalities Act", "statute": "Berar Municipalities Act"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 18528, "end_char": 18535, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipalities Act", "statute": "Berar Municipalities Act"}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 18581, "end_char": 18589, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipalities Act", "statute": "Berar Municipalities Act"}}, {"text": "s. 14(e)", "label": "PROVISION", "start_char": 18693, "end_char": 18701, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipalities Act", "statute": "Berar Municipalities Act"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 19119, "end_char": 19126, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Radeshyam Khare", "label": "OTHER_PERSON", "start_char": 19202, "end_char": 19217, "source": "ner", "metadata": {"in_sentence": "14 and the State Government can- B not take advantage of the decision in Shri Radeshyam Khare's\n\ncase(')."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 19305, "end_char": 19310, "source": "regex", "metadata": {"statute": null}}, {"text": "Mudholkar", "label": "WITNESS", "start_char": 19687, "end_char": 19696, "source": "ner", "metadata": {"in_sentence": "Mudholkar, 1."}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 19751, "end_char": 19758, "source": "ner", "metadata": {"in_sentence": "I have read the judgment prepared by my D brother Wanchoo and while I agree with him that the appeals\n\nmust be allowed 1 would prefer to give my own reasons for that conclusion.", "canonical_name": "WANCHOO"}}, {"text": "January 22, E\n\n1961", "label": "DATE", "start_char": 19991, "end_char": 20010, "source": "ner", "metadata": {"in_sentence": "The appellants in these three appeals were elected to the Municipal Committee, Batala in the elections held on January 22, E\n\n1961."}}, {"text": "Government of Punjab", "label": "ORG", "start_char": 20122, "end_char": 20142, "source": "ner", "metadata": {"in_sentence": "On August 4, 1961, that is, after these persons started functioning as members of the Municipal Committee the Government of Punjab issued a notification under s. 14, cl. ("}}, {"text": "s. 14", "label": "PROVISION", "start_char": 20171, "end_char": 20176, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab Municipalities Act, 1911", "label": "STATUTE", "start_char": 20194, "end_char": 20225, "source": "regex", "metadata": {}}, {"text": "s. 14", "label": "PROVISION", "start_char": 20645, "end_char": 20650, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Municipalities Act, 1911", "statute": "the Punjab Municipalities Act, 1911"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 20738, "end_char": 20745, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Municipalities Act, 1911", "statute": "the Punjab Municipalities Act, 1911"}}, {"text": "Section 14", "label": "PROVISION", "start_char": 20767, "end_char": 20777, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Municipalities Act, 1911", "statute": "the Punjab Municipalities Act, 1911"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 21667, "end_char": 21672, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 21973, "end_char": 21978, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 22907, "end_char": 22912, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 23099, "end_char": 23109, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 23232, "end_char": 23237, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 23992, "end_char": 23997, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 24188, "end_char": 24195, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}]}
{"document_id": "1965_2_868_876_EN", "year": 1965, "text": "JOSEPH POTHEN\n\nSTATE OF KERALA\n\nFebruary 3, 1965\n\n[K. SUBBA RAO, K. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH AND s. M. Snw, JJ.]\n\nTravancore Ancient Monuments Preservation Regulation (1 of 1112/ M.E~1936-31)-Whether impUed repealed by extension of Central Act VII of 1904 to Statt>-<>r by the Central Acts LXXI of 1951 and XXIV of 1958-State issuing Notification under the Regulation declaring Fort wall as a monument-Whether valid.\n\nConstitution of India-Entry 61 (List 1)-Entry 12 (List II) Entry 40 (List lll)-Scope of.\n\nBy a Notification under the Travancore Ancient Monuments Preaer- , vation Regulation (1 of 1112/M.E.-1936-37 A.D.), the State Government declared a fort wall, which was within certain property purchased by the petitioner, to be protected monu1ne11t for the purposes of the Regulation.\n\nD The petitioner challenged the Notification as infringing hio fundamental\n\nright under Art. 19(1) (f).\n\nIt was contended on behalf of the petitioner that the impugned Notification had no legal force as Reguiation 1 of 1112/M.E., though validly made when it was passed, was impliedly repealed by the extension to the State in 1951 of the Ancient Monuments Preservation Act, 1904 (Central Act Vll of 1904) as that Act covered the same field occupied by the State Government, and in any event there was an implied repeal of the Regulation by the Central Acts LXXI of 1951 and XXIV of 1958. It was also contended that the disputed wall was not an ancient 'monument' but fell within the term 'archaeological sites or remains' and as the latter subject was in the Concurrent List, upon the extension of the Central Act VII of 1904 .in 1951 to the State, the Central Act occupied practically the entire field covered by the State Act and thereby impliedly repealed the State Act.\n\nHELD: By virtue of Entry 67 of the Union List, Parliament could make a law in respect of ancient and historical monuments declared by or under a law made by it to be of national importance. but the Central Act of 1904 did not embody the requisite declaration. Therefore the Regulation, which fell under Entry 12 of the State List, continued ID hold the field despite the extension cf the Central Att ro the State. [873 F-0]\n\nSimilarly. the Central Acts I.XX! of 1951 and XXIV of 1953 applied C only to ancient or historical monuments specifi'd in P•rt I of the Schedule ID the 1951 Act or expressly notified by the Central Government under s. 4 of the 1958 Act. As neither of these Acts covered-the monument in question, the State RsuJation continued ID be applicable in respect of it; it therefore followed lhat the Notification issued under the State Act was valid. [873 H; 874 A-El\n\n1 The . contention based on the argument that the disputed wall was not H a monument but an archaeological site or remain could not be ad!:epted. because it was clear from the evidence before the court that the Fort wall was not an archaeological site for exp!Oration and study but that it wa>\n\nA an aisling structure surviving from a former period and, as 811Ch, a monument. The State Government was therefore within its rights in issuing the impugned notification unders. 3 of Regulation 1of1112/M.E. (875 H; 876 A-Bl ORIGINAL JURISDICTION: Writ Petition No. 95 of 1964.\n\nPetition under Art. 32 of the Constitution for enforcement of B fundamental rights.\n\nT. N. Subramonia Iyer, Arun B. Saharaya and Sardar Bahardur for the petitioner.\n\nV. P. Gopa/a Nambiar, Advocate-General for the State of Kera/a and V. A. Seyid Muhammad, for the respondent.\n\nC The Judgment of the Court was delivered by Sobba Rao, J.\n\nThis is a petition under Art. 32 of the Constitution for issuing an appropriate writ to quash the order and notification dated October 3, 1963, issued by the respondent and to restrain it from interfering with the petitioner's right in the pro- D perty compi, ised in survey Nos. 646 to 650 in Trivendrum City.\n\nKizhakke Kottaram (i.e., Eastern Palace), 2 acres and 57 cents. in extent, comprised in survey Nos. 646 to 650 and consisting of land, trees, buildings, out-houses, the surrounding well on all sides, gates and all appurtenants, in the City of Trivendrum originally belonged to His Highness the Maharaja of Travancore.\n\nE Under a sale deed dated January 7, 1959, the Maharaja sold the same to the petitioner. The petitioner's case is that the eastern wall now in dispute is a portion of the Palace wall and is situate in survey Nos. 646 to 650 and that since the purchase he has been in possession of the same.\n\nOn October 3, 1963, tl1e Government of Kerala passed an order, G.O. (MS) No. 661/63/Edn., F purporting to be under the provisions of the Travancore Ancient Monuments Preservation Regulation 1 of 1112/M.E. (-1936-\n\n37 A.O.) Under that order the Government considered the Fort walls around the Sree Padmanabhaswamy Temple as of archaeological importance and that they should be preserved as a protected JllOnument.\n\nUnder that order the said WBlls are G described as being situated. among others, in the aforesaid survey numbers also. Pursuant to that order the State Government issued a notification dated October 3, 1963, declaring the said walls to be a protected monument for the purpose of the said Regulation.\n\nThe petitioner, alleging that the part of the said walls situate in the said survey numbers belonged to him and he was in possession H thereof and that the said notification infringed his fundamental right under Art. 19(1) (f) of the Constitution, filed the present writ petition.\n\nSUPREME COURT REPORTS\n\n[1965] 2 S.C.R.\n\nThe State filed a counter-affidavit in which it admitted that A the Kizhakke Kottaram was purchased by the petitioner from the Maharaja of Travancore, but contended that the wall which bounded the Kizhakke Kottaram on the east was part of the fort wall which had always remained and continued to remain to be the property of the Travancore-Cochin, and later on Kerala, Govermnent. It was further alleged that though the said wall B was part of the historic fort wall, the petitioner deliberately \"intermeddled\" with it.\n\nIn short, the respondent claimed that the said wall was part of the historic fort wall and, therefore, the said notification was validly issued in order to preserve the same and that the petitioner had illegally encroached upon it.\n\nIt is not necessary to state the different contentions of the parties at this stage, as we shall deal with them separately.\n\nThe learned Advocate-General of Kerala raised a preliminary objection to the maintainability of the application on the ground D that the petition is barred by the principle of res ; udicata in that a petition for the same relief was filed before the High Court of Kerala and was dismissed.\n\nThe petitioner filed O.P. No. 1502 of 1960 in the High Court of Kerala at Ernakulam for a relief similar to that now sought in this petition.\n\nThe said petition came up before Vaidialingam, J., who dismissed that petition on E the ground that it sought for the declaration of title to the property in question, that the said relief was foreign to the scope of the proceedings under Art. 226 of the Constitution and that claims based on title or possession could be more appropriately investigated in a civil suit. When an appeal was filed against that order a Division Bench of the High Court, consisting of Raman Nair F and Raghavan, JJ., dismissed the same, accepting the view of Vaidialingam, J., that the proper forum for the said relief was a civil Court. It is, therefore, clear that the Kerala High Court did not go into the merits of the petitioner's contentions, but dismissed the petition for the reason that the petitioner had an effective G remedy by way of a suit. Every citizen whose fundamental right is infringed by the State has a fundamental right to approach this Court for enforcing his right. If by a final decision of a competent Court his title to property has been negatived, he ceases to have the fundamental right in respect of that property and, therefore, he can no longer enforce it. In that context the doctrine of res\n\njudicata may be invoked. But where there is no such decision H at all, there is no scope to call in its aid. We, therefore, reject this contention.\n\nA The next question is whether the petitioner has any fundamental right in respect of the wall in dispute within the meaning of Art. 19(1)(f) of the Constitution. The sale deed under which the petitioner has purchased the Eastern Palace from the Maharaja is filed along with the petition as Annexure A-2. Under the said sale deed, dated January 7, 1959, the Maharaja sold the Eastern B Palace situate in survey Nos. 646 to 650, 2 acres and 57 cents, in extent, to the petitioner.\n\nThe outer compound walls of the said Palace building were also expressly conveyed under the sale deed.\n\nIn the schedule of properties annexed to the sale deed the eastern boundary is given as a road. Prima facie, therefore, the sale deed establishes that the Maharaja conveyed the eastern wall of the C building abutting the road to the petitioner. In the counter-affidavit the State, while admitting the title of the Maharaja to the Eastern Palace and the execution of the sale deed by him conveying the said Palace to the petitioner, asserted that the disputed wall is part of the historic Fort wall. According to the State, Sree Padmanabhaswamy Temple is surrounded by the historic Fort D wall and the disputed wall is a part of it. In support of this contention, the State has given extracts from the Travancore State Manual, the list of forts furnished to the Government by the Chief Engineer in 1886, the history of Travancore by Sri K. P. Sankunni Menon, the Memoir of the Survey of Travancore and Cochin E States by Lieutenants Ward and Conner, and the Trivendrum District Gazetteer published in 1962. The said extracts describe the history of the Fort wall. It is not possible, without further evidence, on the basis of the affidavits filed by the petitioner and the State to come to a definite conclusion whether the disputed part of the wall is a part of the historic Fort wall.\n\nWe are, therefore.\n\nF withholding, our final decision on this point, as we are satisfied that the petitioner has purchased the disputed wall from the Maharaja and is in physical possession thereof.\n\nIndeed, the fact that he is in possession has been admitted by the State in its counter-affidavit. It is stated therein that the petitioner has \"intermeddled\" with the wall. The petitioner has possessory title G in the wall and is, therefore entitled to be protected against interference with that right without the sanction of law.\n\nThe next question is whether the Travancore Ancient Monuments.\n\nPreservation Regulation (Regulation 1 of 1112/M.E.) ceased to be law in the State of Kerala and, therefore, the said notification issued thereunder had no legal force.\n\nIt was con- H tended that Regulation 1 of 1112 M.E. was impliedly repealed by the extension of the Central Act, i.e., the Ancient Monuments Preservation Act, 1904, in the year 1951 to Kerala, as the -said USup./65-9\n\n872 SUPREME COUllT REPORTS\n\n(1965] 2 S.C. R.\n\nAct covered th1~ same field occupied by the State Act, or at any rate the said Regulation was impliedly repealed by the Ancient and Historical Monuments and Archaeological Sites and Remains\n\n(Declaration of National Importance) Act, 195 l (Act LXXI of\n\n1951) and the Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1958 (Act XXIV of 1958). To appreciate this contention it would be convenient at the outset to notice the relevant legislative fields allotted to the Central and State Legislatures by the entries in the three Lists of the Seventh Schedule to the Constitution.\n\nThe following are the relevant entries in the said Schedule :\n\nEntry 67 of List I (Union List) : Ancient and historical monuments and records, and archaeological sites and remains, declared by or under law made by Parliament to be of national importance.\n\nEntry 12 of List II (State List) Libraries, museums and other similar institutions controlled or financed by the State; ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance.\n\nEntry 40 of List III (Concurrent Lr'st) : Archaeological sites and remains other than those declared by or under law made by Parliament to be of national importance.\n\nft will be noticed that by reason of the said entries Parliament could only make Jaw with respect to ancient and historical monu- F lnents and archaeological sites and remains declared\" by PHrliament to be of natio!'al importance. Where the Parliament h~'\n\nnot declared them to be of any national importance, the State Legislature has exclusive power to make law in respect of ancient and historical monuments and records and both Parliament and the State Legislature can make kws subject to the other constitu- G tional provisions in respect of archaeological sites and remains'.\n\nRegulation 1 of 1112 M.E. is of the year 1936 A.D. It was a State law and it is not disputed that it was validly made at the time it was passed.\n\nAfter the Travancore-Cochin State was formed, under the Travancore-Cochin Administration and Appli- H cation of Law Act. 1125 M.E. (Act VI of 1125 M.E.) (1949 A.D), the existing laws of Travancore were extended to that part of the area of the new State which before the appointed day\n\nA formed the territory of the State of Travancore.\n\nThe result was that the said Regulation continued to be in force in the Travancore area of the new State. The Part B States (Laws) Act, 1951 (Act No. III of 1951) was made by Parliament: and thereunder the Ancient Monuments Preservation Act, 1904, was extended to the new State of Travancore-Cochin. A comparative study of the B two Acts, i.e., the Ancient Monuments Preservation Act, 1904,\n\nand the Travancore Ancient Monuments Preservation Regulation 1 of 1112 M.E., shows that they practically covered the same field.\n\nIf there was nothing more, it may be c; intended that the State Act was impliedly repealed by the Central Act.\n\nBut s. 3 of the Part B States (Laws) Act, 1951, made the application of the C Central Act to the State subject to an important condition. The said s. 3 reads :\n\n\"The Acts and Ordinances specified in the Schedule shall be amended in the manner and to the extent therein specified, and the territorial extent of each of the said D Acts and Ordinances shall, as from the appointed day, and in so far as any of the said Acts or Ordinances or any of the provisions contained therein relates to matters with respect to which Parliament has power to make laws, be as stated in the extent clause thereof as so\n\nE amended.\"\n\nThe condition is that the said Act shall relate to matters with respect to which Parliament has power to make laws. The question, therefore, is whether Parliament can make a law in respect of ancient monuments with respect whereof the State had made the impugned Regulation. As we have pointed out earlier, the F Parliament can make a law in respect of ancient and historical monuments and records declared by or under law made by it to be of national importance, but the Central Act of 1904 did not embody any declaration to that effect.\n\nTherefore, the Central Act could not enter the field occupied by the State Legislature under List II. If so, it follows that the State Act held the field G notwithstanding the fact that the Central Act was extended to the\n\nState area.\n\nNor can the learned counsel for the petitioner call in aid the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Import'!nce) Act, 1951 (Act H LXXI of 1951), to sustain his argument. That Act applied to ancient and historical monuments referred to or specified in Part I of the Schedule thereto which had been declared to be of nation.al importance.\n\nIn Part I of the Schedule to the said Act\n\n874 SUPllBMB COUllT llBPOllTS [1965] 2 S.C.ll •.\n\ncertain monuments in the District of Trichur in the Travancore- A Cochin State were specified.\n\nThe monument in question was not included in the said Schedule.\n\nThe result is that the State Act did not in any way come into conflict with the Central Act LXXI of 1951.\n\nThe State Act, therefore, survived even after the passing of the said Central Act.\n\nThe next Central Act is the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (Act XXN of 1958). It repealed the Central Act LXXI of 195 I. Under s. 3 thereof all ancient and historical monuments declared by Central Act No. LXXI of 1951 to be of national importance should be deemed\n\nto be ancient and historical monuments and remained declared C to be of national importance for the purpose of the said Act.\n\nSection 4 thereof enabled the Central Government to issue a notice of its intention to declare any other monument to be of national importance which did not come under s. 3 of the said Act. But the Central Government did not give any notice of its intention to declare the monument in question as one of national D importance. If so, that Act also did not replace the State Act in regard to the monument in question.\n\nFor the aforesaid reasons it must be held that notwithstanding the extension of the Central Act VIl of 1904 to the Travancore area and the passing of Central Acts LXXI of 1951 and XXIV of E 1958, the State Act continued to hold the field in respect of the monument in question. It follows that the notification issued under the State Act was valid.\n\nThe next argument of the learned counsel may be briefly stated thus : The disputed wall is not an ancient !llonument, but an archaeological site or remains; the said matter is covered by entry F 40 of the Concurrent List (List III) of the Seventh Schedule to the Constitution; when. Act VIl of 1904 was extended by Part B States (Laws) Act ill of 1951 to the Travancore area, it occupied practically tlte entire field covered by the State Act and, therefore, the latter Act was impliedly repealed by the former Act.\n\nAssuming that that is the legal position, we find it not possible to hold that the Fort wall is not an andent monument but only an archaeological site or remains.\n\nThe argument of the learned counsel is built upon the definition of \"ancient monument\" in\n\nthe State Act (Regulation 1 of 1112 M.E.) and that in the Ccn- H tral Act of 1904. It is not necessary to express our opinion on the question whether the definition is comprehensive enough to take in an archaeological site or remains, and whether the Acts\n\n\\. '\n\nA apply to both ancient monuments strictly so called and to archaeological site or remains. If the definition was wide enough to cover both--0n which we do not express any opinion-that State Act may be liable to attack on the ground that it, in so far as it deals with archaeological site or remains, was displaced by the Central Act.\n\nBut the State Government only purported to notify B the Fort wall as an ancient monument and, therefore, if the State Act, in so far as it dealt with monument is good, as we have held it to be, the impugned notification was validly issued thereunder.\n\nThe Constitution itself, as we have noticed earlier, maintains a clear distinction between ancient monuments are archaeological C site or remains; the former is put in the State List and the latter, in the Concurrent List.\n\nThe dictionary meaning of the two expressions also brings out the distinction between the two concepts. \"Monument\" is derived from monere, which means to remind, to warn. \"Monu- D ment\" means, among others, \"a structure surviving from a former period\"; whereas \"archaeology\" is the scientific study of the life and culture of ancient peoples.\n\nArchaeological site or remains, therefore, is a site or remains which could be explored in order to study the life and culture of the ancient peoples.\n\nThe two expressions, therefore, bear different meanings.\n\nThough the E demarcating line may be thin in a rare case, the distinction is clear.\n\nThe entire record placed before us discloses that the State proceeded on the basis that the Fort wall was a monument; the notification dated October 3, 1963, issued by the State Govem- F ment described the wall as a protected monument.\n\nThe petitioner questioned the notification on the ground that it was not a monument but a part of the boundary wall of his property.\n\nHe did not make any allegation in the petition filed in the High Court that it wa'. ill archaeological site or remains and, therefore, the Central Act displaced the State Act.\n\nNor did he argue before the High G Court to that effect.\n\nIn the petition filed in this Court he cpiestioned the constitutional validity of the State Act onlv on the\n\nound that the Ancient Monuments Preservation Act, 1904, impliedly repealed the State Act relating to monuments. He did not allege that the Fort wall was an archaeological site or remains and, therefore, the State Act as well as the notification were in- H valid.\n\nThe present argument is only an afterthought.\n\nThe extracts given in the counter-affidavit filed by the State from the relevant Manuals and other books and documents show\n\nSUPUMI OOU1T REPORTS\n\n(1965) 2 s.c.R.\n\nthat the Fort wall was a historical monument and was treated as A such, being the wall built around the famous Sree Padmanabhaswami Temple. It is not an archaeological site for exploration and study, but an existing structure surviving from a former period.\n\nFor the aforesaid reasons we hold that th.: Fort wall is a monument and the State Government was within its rights to issue the impugned notification under s. 3 of the State Regulation B I of 1112 M.E. We are not deciding in this case whether the wall in dispute is part of the Fort wall.\n\nSuch and other objections may be raised under the provisions of the Act in the manner pre1cribed thereunder.\n\nIn this view, it is not necessary to express our opinion on the c question whether Art. 363 of the Constitution is a bar to the maintainability of the petition.\n\nIn the result, the petition fails and is dismissed with costs.\n\nPetition dismissed.", "total_entities": 65, "entities": [{"text": "JOSEPH POTHEN", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "JOSEPH POTHEN", "offset_not_found": false}}, {"text": "STATE OF KERALA", "label": "RESPONDENT", "start_char": 15, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "STATE OF KERALA", "offset_not_found": false}}, {"text": "February 3, 1965", "label": "DATE", "start_char": 32, "end_char": 48, "source": "ner", "metadata": {"in_sentence": "JOSEPH POTHEN\n\nSTATE OF KERALA\n\nFebruary 3, 1965\n\n[K. 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N. Subramonia Iyer", "label": "LAWYER", "start_char": 3328, "end_char": 3349, "source": "ner", "metadata": {"in_sentence": "T. N. Subramonia Iyer, Arun B. Saharaya and Sardar Bahardur for the petitioner."}}, {"text": "Arun B. Saharaya", "label": "LAWYER", "start_char": 3351, "end_char": 3367, "source": "ner", "metadata": {"in_sentence": "T. N. Subramonia Iyer, Arun B. Saharaya and Sardar Bahardur for the petitioner."}}, {"text": "Sardar Bahardur", "label": "LAWYER", "start_char": 3372, "end_char": 3387, "source": "ner", "metadata": {"in_sentence": "T. N. Subramonia Iyer, Arun B. Saharaya and Sardar Bahardur for the petitioner."}}, {"text": "V. P. Gopa", "label": "LAWYER", "start_char": 3409, "end_char": 3419, "source": "ner", "metadata": {"in_sentence": "V. P. Gopa/a Nambiar, Advocate-General for the State of Kera/a and V. A. 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Seyid Muhammad, for the respondent."}}, {"text": "Sobba Rao", "label": "JUDGE", "start_char": 3564, "end_char": 3573, "source": "ner", "metadata": {"in_sentence": "C The Judgment of the Court was delivered by Sobba Rao, J.\n\nThis is a petition under Art."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 3604, "end_char": 3611, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Trivendrum City", "label": "GPE", "start_char": 3873, "end_char": 3888, "source": "ner", "metadata": {"in_sentence": "646 to 650 in Trivendrum City."}}, {"text": "Trivendrum", "label": "GPE", "start_char": 4134, "end_char": 4144, "source": "ner", "metadata": {"in_sentence": "646 to 650 and consisting of land, trees, buildings, out-houses, the surrounding well on all sides, gates and all appurtenants, in the City of Trivendrum originally belonged to His Highness the Maharaja of Travancore."}}, {"text": "Travancore", "label": "GPE", "start_char": 4197, "end_char": 4207, "source": "ner", "metadata": {"in_sentence": "646 to 650 and consisting of land, trees, buildings, out-houses, the surrounding well on all sides, gates and all appurtenants, in the City of Trivendrum originally belonged to His Highness the Maharaja of Travancore."}}, {"text": "January 7, 1959", "label": "DATE", "start_char": 4236, "end_char": 4251, "source": "ner", "metadata": {"in_sentence": "E Under a sale deed dated January 7, 1959, the Maharaja sold the same to the petitioner."}}, {"text": "October 3, 1963", "label": "DATE", "start_char": 4505, "end_char": 4520, "source": "ner", "metadata": {"in_sentence": "On October 3, 1963, tl1e Government of Kerala passed an order, G.O. (MS) No."}}, {"text": "Government of Kerala", "label": "ORG", "start_char": 4527, "end_char": 4547, "source": "ner", "metadata": {"in_sentence": "On October 3, 1963, tl1e Government of Kerala passed an order, G.O. (MS) No."}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 5429, "end_char": 5439, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Kerala", "label": "GPE", "start_char": 5900, "end_char": 5906, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\n[1965] 2 S.C.R.\n\nThe State filed a counter-affidavit in which it admitted that A the Kizhakke Kottaram was purchased by the petitioner from the Maharaja of Travancore, but contended that the wall which bounded the Kizhakke Kottaram on the east was part of the fort wall which had always remained and continued to remain to be the property of the Travancore-Cochin, and later on Kerala, Govermnent."}}, {"text": "High Court of Kerala", "label": "COURT", "start_char": 6668, "end_char": 6688, "source": "ner", "metadata": {"in_sentence": "The learned Advocate-General of Kerala raised a preliminary objection to the maintainability of the application on the ground D that the petition is barred by the principle of res ; udicata in that a petition for the same relief was filed before the High Court of Kerala and was dismissed."}}, {"text": "High Court of Kerala at Ernakulam", "label": "COURT", "start_char": 6759, "end_char": 6792, "source": "ner", "metadata": {"in_sentence": "1502 of 1960 in the High Court of Kerala at Ernakulam for a relief similar to that now sought in this petition."}}, {"text": "Vaidialingam", "label": "JUDGE", "start_char": 6885, "end_char": 6897, "source": "ner", "metadata": {"in_sentence": "The said petition came up before Vaidialingam, J., who dismissed that petition on E the ground that it sought for the declaration of title to the property in question, that the said relief was foreign to the scope of the proceedings under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 7091, "end_char": 7099, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Raman Nair F", "label": "JUDGE", "start_char": 7317, "end_char": 7329, "source": "ner", "metadata": {"in_sentence": "When an appeal was filed against that order a Division Bench of the High Court, consisting of Raman Nair F and Raghavan, JJ.,"}}, {"text": "Raghavan", "label": "JUDGE", "start_char": 7334, "end_char": 7342, "source": "ner", "metadata": {"in_sentence": "When an appeal was filed against that order a Division Bench of the High Court, consisting of Raman Nair F and Raghavan, JJ.,"}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 7503, "end_char": 7520, "source": "ner", "metadata": {"in_sentence": "It is, therefore, clear that the Kerala High Court did not go into the merits of the petitioner's contentions, but dismissed the petition for the reason that the petitioner had an effective G remedy by way of a suit."}}, {"text": "Art. 19(1)(f)", "label": "PROVISION", "start_char": 8336, "end_char": 8349, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "K. P. Sankunni Menon", "label": "OTHER_PERSON", "start_char": 9629, "end_char": 9649, "source": "ner", "metadata": {"in_sentence": "In support of this contention, the State has given extracts from the Travancore State Manual, the list of forts furnished to the Government by the Chief Engineer in 1886, the history of Travancore by Sri K. P. Sankunni Menon, the Memoir of the Survey of Travancore and Cochin E States by Lieutenants Ward and Conner, and the Trivendrum District Gazetteer published in 1962."}}, {"text": "Ancient Monuments Preservation Act, 1904", "label": "STATUTE", "start_char": 10968, "end_char": 11008, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1958", "label": "STATUTE", "start_char": 11376, "end_char": 11455, "source": "regex", "metadata": {}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 11673, "end_char": 11689, "source": "regex", "metadata": {"linked_statute_text": "the Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1958", "statute": "the Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1958"}}, {"text": "PHrliament", "label": "ORG", "start_char": 12581, "end_char": 12591, "source": "ner", "metadata": {"in_sentence": "ft will be noticed that by reason of the said entries Parliament could only make Jaw with respect to ancient and historical monu- F lnents and archaeological sites and remains declared\" by PHrliament to be of natio!'al importance."}}, {"text": "Ancient Monuments Preservation Act, 1904", "label": "STATUTE", "start_char": 13663, "end_char": 13703, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Travancore-Cochin", "label": "GPE", "start_char": 13738, "end_char": 13755, "source": "ner", "metadata": {"in_sentence": "III of 1951) was made by Parliament: and thereunder the Ancient Monuments Preservation Act, 1904, was extended to the new State of Travancore-Cochin."}}, {"text": "Ancient Monuments Preservation Act, 1904", "label": "STATUTE", "start_char": 13806, "end_char": 13846, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 3", "label": "PROVISION", "start_char": 14095, "end_char": 14099, "source": "regex", "metadata": {"linked_statute_text": "the Ancient Monuments Preservation Act, 1904", "statute": "the Ancient Monuments Preservation Act, 1904"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 14238, "end_char": 14242, "source": "regex", "metadata": {"linked_statute_text": "the Ancient Monuments Preservation Act, 1904", "statute": "the Ancient Monuments Preservation Act, 1904"}}, {"text": "Trichur", "label": "GPE", "start_char": 16009, "end_char": 16016, "source": "ner", "metadata": {"in_sentence": "In Part I of the Schedule to the said Act\n\n874 SUPllBMB COUllT llBPOllTS [1965] 2 S.C.ll •.\n\ncertain monuments in the District of Trichur in the Travancore- A Cochin State were specified."}}, {"text": "Travancore- A Cochin", "label": "GPE", "start_char": 16024, "end_char": 16044, "source": "ner", "metadata": {"in_sentence": "In Part I of the Schedule to the said Act\n\n874 SUPllBMB COUllT llBPOllTS [1965] 2 S.C.ll •.\n\ncertain monuments in the District of Trichur in the Travancore- A Cochin State were specified."}}, {"text": "Central Act LXXI of 1951", "label": "STATUTE", "start_char": 16213, "end_char": 16237, "source": "regex", "metadata": {}}, {"text": "next Central Act is the Ancient Monuments and Archaeological Sites and Remains Act, 1958", "label": "STATUTE", "start_char": 16328, "end_char": 16416, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 3", "label": "PROVISION", "start_char": 16485, "end_char": 16489, "source": "regex", "metadata": {"linked_statute_text": "The next Central Act is the Ancient Monuments and Archaeological Sites and Remains Act, 1958", "statute": "The next Central Act is the Ancient Monuments and Archaeological Sites and Remains Act, 1958"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 16749, "end_char": 16758, "source": "regex", "metadata": {"linked_statute_text": "The next Central Act is the Ancient Monuments and Archaeological Sites and Remains Act, 1958", "statute": "The next Central Act is the Ancient Monuments and Archaeological Sites and Remains Act, 1958"}}, {"text": "Central Government", "label": "ORG", "start_char": 16779, "end_char": 16797, "source": "ner", "metadata": {"in_sentence": "Section 4 thereof enabled the Central Government to issue a notice of its intention to declare any other monument to be of national importance which did not come under s. 3 of the said Act."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 16917, "end_char": 16921, "source": "regex", "metadata": {"linked_statute_text": "The next Central Act is the Ancient Monuments and Archaeological Sites and Remains Act, 1958", "statute": "The next Central Act is the Ancient Monuments and Archaeological Sites and Remains Act, 1958"}}, {"text": "Act also did not replace the State Act", "label": "STATUTE", "start_char": 17088, "end_char": 17126, "source": "regex", "metadata": {}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 17756, "end_char": 17772, "source": "regex", "metadata": {"linked_statute_text": "Act also did not replace the State Act", "statute": "Act also did not replace the State Act"}}, {"text": "Ancient Monuments Preservation Act, 1904", "label": "STATUTE", "start_char": 20732, "end_char": 20772, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 21608, "end_char": 21612, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 363", "label": "PROVISION", "start_char": 21935, "end_char": 21943, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]}
{"document_id": "1965_2_877_883_EN", "year": 1965, "text": "BHAIYALAL v.\n\nHAROOSHAN SINGH AND OTHERS\n\nFebnllhy 5, 1965\n\n[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,\n\nM. HIDAYATULLAH, J.C. SHAH AND s. M. SIKRI, JI.]\n\nConstitution of India, Art. 341-Presldtnt of lnd/4-Spocifimtion of Scheduled caste in relation Jo parts of State-Validity o/-Chamar, If inc/wled In Dohtu caste.\n\nThe appellant's election was challenged inter a/la, on the ground that bo belonged to the Dohar caste which was not recognised as a Scheduled\n\nCaste for the district in question and so his declaration that he belonged to the Chamar caste which was a Schedule Caste was improperly and illeplly accepted by the Returning Olli=. The Election Tribunal declared\n\nthe election invalid.\n\nThe finding was confirmed on appeal by the High Court. In appeal to the Supreme Court.\n\nHELD: (i) The plea that though the appellant ia not a Chamar u auch, he can claim the same status by reason of the fa& that he belonged to Dohar Caste which is a sulxaste of the Chamar caste cannot be\n\nacx:epled. An enquiry of thia kind would not be permissible having rep.rd to the provisions contained in Art. 341 of the Constitution. [881 F-0]\n\nBa.ravalingappa v. D. Munlcliinnappa, [1965] 1 S.C.R. 316, refened E to.\n\n(ii) In specifying castes, races or tribes under Art. 341 of the Conatitution, the President bas been expressly authorised to limit the notiftcation to parts of or groups within the castes, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to the parts of the State where be ia F wisfied that the examination of the social and educational backwardneos of the race, caste or tribe justifies such specification. [882 H-883 CJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 765 of 1964.\n\nAppeal by special leave from the judgment and order, dated G April 23, 1963, of the Madhya Pradesh High Court in First Appeal No. 24 of 1963.\n\nN. C. Chatterjee, V. S. Sawhney, S. S. Kanjuja and Ganpat Rai, for the appellant.\n\nG. S. Pathak and Dipak Datta Chaudhry, for respondent No. 1.\n\nH The Judgment of the Court was delivered by Gajendragadkar, C.J. This appeal by special leave arises out of an Election petition filed by respondent No. 1, Harikishan\n\nSUPIU!MB COURT REPORTS\n\n[1965] 2 S. C.R.\n\nSingh, challenging the validity of the election of the appellant, A '\" Bhaiyalal, in a reserved seat in the Berasia Constituency in the district of Sehore in Madhya Pradesh. The election in question was held in February, 1962; at this election the appellant, respondent No. 1, and three others offered themselves as candidates. The awellant was declared duly elected on the 26th February, 1962 since he had polled the highest number of votes. His next rival B was respondent No. 1. By this petition, respondent No. 1 challenged the validity of the appellant's election on the ground that the appellant belonged. to the Dohar caste and was not a Chamar.\n\nThe appellant had filed his nomination.paper on the 19th January, l 962 before the Returning Officer at Sehore and had declared that C he was a member of the Chamar scheduled caste of the State of Madhya Pradesh in relation to Sehore district. This declaration was accepted by the Returning Officer. Respondent No. 1 contended that Dohar caste was not recognised as the scheduled caste for the district of Sehore and Raisen, and so, the Returning Officer had improperly and illegally. accepted the declaration of the appel- D !ant as one belonging to tile Chamar scheduled caste. Since the appellant did not belong to the scheduled caste in question, he was not entitled to stand for election for the reserved seat in respect of the said Constituency. This is the basis on which the validity of the appellant's election was challenged by respondent No. 1. On the other hand, the appellant urged that the election E petition filed by respondent No. 1 was not maintainable inasmuch as he had not deposited the security of Rs. 2,000 in the manner preecribed by the statutory rules.\n\nOn these pleadings, the Election Tribunal framed appropriate issues. The first four issues covered the principal contention raised 1 by respondent No. 1 against the validity of the appellant's nomination as a member belonging to the Chamar scheduled caste, whereas the fifth issue related to the appellant's contention about\n\nthe incompetence of the election petition filed by respondent No, 1.\n\nBoth parties led evidence in support of their pleas oi; i the principal point of dispute between them. The Election Tribunal con- G sidered the oral evidence adduced by the parties, examined the documents on which they respectively relied, and found in favour of respondent No. 1. In regard to the plea raised by the aopel\\ant against the competence of the election petition, the Tribunal found against him. In the result. the election petition was allowed and the appellant's election declared invalid.\n\nAgainst this decision of the Election Tribunal, the appellant preferred an appeal to the Madhya Pradesh High Court. Before\n\nA the High Court, the same two points were urged. The High Court has confirmed the finding of the Election Tribunal on both the points. It has held that the election petition filed by respondent No. 1 was valid and the security deposit was made by him in accordance with the statutory requirements. On the merits of the\n\ncontroversy as to whether the appellant was a Chamar by caste and as such was entitled to be elected for the reserved seat in the Constituency in question, 'the High Court, in substance, has agreed with the conclusion of the Election Tribunal. In consequence, the appeal preferred by the appellant was dismissed on the 23rd April, 1963. It is .against this decision that the appellant has come to this Court by special leave.\n\n, On behalf of the appellant Mr. Chatterjee has contended that the High Court was in error in cQnfirming tho finding of the Election Tribunal in regard to the caste to which the appellant belonged. It appears that the appellant's case was that he was a Dohar Chamar which according to him is a sub-caste of the Qiamar scheduled caste. He urged that the said sub-caste was also called 'Mochi'. In support of this plea, the appellant examined witnesses and produced documen!S, and as we have just indicated, respondent No. 1 also produced witnesses and examined documents to show that the Dohar caste was distinct from and independent of the Chamar caste and Dohars could not, therefore, claim E to be Chamars within the meaning of the Presidential Order.\n\nThus, the question which arose between the parties for decision in the present proceedings is a question of fact and on this question . both the Tribunal and the High Court have made concurrent findings against the appellant. It is true that in reaching their conclusion on this point, the Tribunal as well as the High Court had to F consider oral as well as documentary evidence; but in cases of this\n\nkind where the Tribunal and the High Court make concurrent findings on questions of fact, this Court does not usually interfere; and after hearing Mr. Chatterjee we see no reason to depart from our usual practice in this matter.\n\nRespondent No. 1 examined 13 witnesses belonging to the G caste of the appellant. All of them asserted that they did not belong to the Chamar caste.\n\nAccording to their evidence, the Dohar caste was different from the Chamar caste.\n\nThere was no intercaste marriage nor even inter-caste dinners between the members of the said two castes. This evidence shows that Chamars and Mochis of Schore district lived in mohallas different from the H mohallas in which the Dohars lived.\n\nAmongst the witnesses examined by respondent No. l, the High Court has attched considerable significance to the evidence of Kishanlal, P. W. 4.\n\nSUPREME COUAT\n\nR~PORTS\n\n\nHe was the Secretary of the Dohar Samaj started by the appellant A himself.\n\nThe appellant was then the Sirpanch of that Samaj.\n\nIt is true that the Samaj did not function for long; but the documents produced by respondent No. 1 to show the constitution of the Smaj clearly indicate that the appellant had taken a prominent pai::t .m that matter. Kishanlal's evidence is absolutely clear and unambiguous.\n\nHe has stated on oath that the Dohar and the B Chamar castes are entirely different. The Chamars, according to him, take off skins from dead animals, prepare shoes and do leather work; the Dohar, said the witness, is not the sub-caste of Chamar caste; there is no relationship of inter-dining and intermarriage between the two. He denied that the Dohars are called Mochis.\n\nMr. Chatterjee has not been able to show any reason C why the evidence of this witness should not have been believed by the High Court.\n\nThe witness belongs to the same caste as the appellant and there is no motive shown why he should take a false oath in respect of a matter which to persons of his statua has great significance. It is not likely that a person like Kishanlal D would make false statement about his own caste.\n\nIn support of his oral evidence, respondent No. 1 produced certain documents, Exts. P. 2, P. 3, P. 4 and P. 5. These are all signed by the appellant and they relate to the year 1956. In these documents, the appellant has described himself as Dohar; in none of them has he mentioned his caste as.Chamar. Similar is the effect E of other documents on which respondent No. 1 relied; they are P. 8, P. 10, P. 11, P. 6, P. 7, P. 9, P. 14, P. 15, P. 17, P. 19, to\n\nP. 27.\n\nIn rebuttal the appellant examined himself and his witnesses.\n\nThis oriil evidence was intended to show that the Dohar caste is F the same as Mochi caste and it is a sub-caste of the Chamar caste.\n\nIn addition to the oral evidence, the appellant produced 22 documents.\n\nIt is true that some of these documents which had been discarded by the Election Tribunal as unworthy of credence -0r as irrelevant, have been accepted by the High Court as relevant and genuine. Even so, the High Court has come to the conclusion G that these documents do not show satisfactorily that the Dohar caste is a sub-caste of the Chamar caste. In that connection, the High Court has pointed out that the documents relied upon by the appellant do not support his case that the Dohar caste is a sub-caste of the Chamar caste, and in that sense, they are not consistent with the plea made by the appellant in the present pro- H ceedings.\n\nWe allowed Mr. Chatterjee to take us through the material evidence;' and on conSidering the said evidence in the\n\nBHAIYALAL v. HARJKISHAN (Gajendragadkar, C.J.) 881\n\nA light of the criticism made by Mr. Chatterjee, we are satisfied that\n\nthere is no reason to interfere with the concurrent finding recorded by the Tribunal and the High Court on the main question of fact.\n\nW c must, accordingly, hold that the appellant does not belong to the Chamar caste and as such was not qualified to contest the reserved scat for the scheduled caste of Chamars in the Con- B stituency in question.\n\nIncidentally, we may point out that the plea that the Dohar caste is a sub-caste of the Chamar caste cannot be entertained in the present proceedings in view of the Constitution (Scheduled Castes) Order, 1950. This Order has been issued by the President c under Article 341 of the Constitution. Article 341 (1) provides that the President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races, or tribes which shall for the purposes of this Constitution be deemed to be Scheduled D Castes in relation to that State or Union territory, as the case may be. Sub-Article (2) lays down that Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as afore5aid a notification issued under the said clause shall not be E varied by any subsequent notification.\n\nIt is thus clear that in order to determine whether or not a particular caste is a scheduled caste within the meaning of Art. 341, one has to look at the public notification issued by the President in that behalf. In the present case, the notification refers to Chamar, Jatav or Mochi, and so, in dealing with the question in dispute between the parties, F the enquiry which the Election Tribunal can hold fa whether or not tb-: appellant is a Chamar, Jatav or Mochi. The plea that though the appellant is not a Chamar as such, he can claim the same status by reason of the fact that he belongs to the Dohar caste which is a sub-caste of the Chamar caste, cannot be accepted.\n\nIt appears to us that an enquiry of this kind would G not be permissible having regard to the provisions contained in Art. 341. In the case of B. Basavalingappa v. D. Munichinnappa\n\n&: Others,(') this Court had occasion to consider a similar question. The question which arose for decision in that case was whether respondent No. 1, though Voddar by caste, belonged to the scheduled caste of Bhovi mentioned in the Order, and while H holding that an enquiry into the said question was permissible, the Court has elaborately referred to the special and unusual\n\n(I) [196Sj I S.C.R. 316.\n\n882 SUPRBMB COURT RBPOllTS\n\n\ncircumstances which justified the High Court in holding that A V oddar caste was the same as the Bhovi caste within the meaning of the Order; otherwise the normal rule would be : \"it may be accepted that it is not open to make any modification in the Order by producing evidence to show, for example, that though caste A alone is mentioned in the Order, caste B is also a part of caste A and, therefore, must be deemed to be included in caste A.\" That is another reason why the plea made by the appellant that the Dohar caste is a sub-caste of the Chamar caste and as such must be deemed to be included in the Order, cannot be accepted.\n\nWhilst we are referring to this aspect of the matter, we may point out that the Order has taken good care to specify different C castes under the same heading where enquiry showed that the same caste bore different names, or it had sub-castes which were entitled to be treated as scheduled castes for the purposes of the Order. In the district of Datia, for instance, entry 3 refers to Chamar, Ahirwar, Chamar Mangan, Mochi or Raidas. Similarly, in respect of Maharashtra, Item 1, entries 3 and 4 refer to the D same castes by different names which shows either that the said castes are known differently or consist of different sub-castes.\n\n- Likewise, item 2, entry 4 in the said list refers to Cha mar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami, Surjyabanshi or Surjyaramnami.\n\nIt is also remarkable that in Maharashtra in certain districts Chambhar and Dhor are included in the list E separately. Therefore, we do not think that Mr. Chatterjee can seriously quarrel with the conclusion of the High Court that the appellant has not shown that he belongs to the Chamar caste which has been shown in the Order as a scheduled caste in respect of the Constituency in question.\n\nF Mr. Chatterjee attempted to argue that it was not competent to the President to specify the lists of Scheduled Castes by reference to different districts or sub-areas of the States.\n\nHis argument was that what the President can do under Art. 341 (1) is to specify the castes, races or tribes or parts thereof, but tbt must be done in relation to the entire State or the Union territory, G as the case may be.\n\nIn other words, says Mr. Chatterjee, the President cannot divide the State into different districts or subareas and specify the castes, races or tribes for the purpose of Art. 341 (1). In our opinion, there is no substance in this argument. The object of Art. 341 (1) plainly is to provide additional protection to the members of the Scheduled Castes having regard H to the economic and educational backwardness from which they suffer.\n\nIt is obvious that in specifying castes, races or tribes,\n\nA the President has been expressly authorised to limit the notification tO parts of or groups within the castes, races or tribes, and that must mean that after examining the educational and social back- of a caste, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified.\n\nSimilarly, the B President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examination of the social and education are backwardness of the race, caste or tribe justifies such specification. In fact, it is well-known that before a notification is issued under Art. 341 (1 ), an elaborate enquiry is made and it C is as a result of this enquiry that social justice is sought to be done to the. castes, races or tribes as may appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State.\n\nEducational and social backwardness in regard to these castes, D race& or tribes may not be uniform or of the same intensity in the whole of the State; it may vary in degree or in kind in di11erent\n\nareas and that may justify the division of the State into convenient and suitable areas for the purpose of issuing the public notification in quastion.\n\nTherefor~ Mr. Chatterjee is in error when he E contends that the notification issued by the President by reference to the different areas is outside his authority under Art. 341 (1).\n\nThe result is, the appeal fails and is dismissed with costs.\n\nAppeal dismised.", "total_entities": 64, "entities": [{"text": "BHAIYALAL", "label": "PETITIONER", "start_char": 0, "end_char": 9, "source": "metadata", "metadata": {"canonical_name": "BHAIYALAL", "offset_not_found": false}}, {"text": "v.\n\nHAROOSHAN SINGH AND OTHERS", "label": "RESPONDENT", "start_char": 10, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "HARIKISHAN SINGH AND OTHERS", "offset_not_found": false}}, {"text": "Febnllhy 5, 1965", "label": "DATE", "start_char": 42, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "BHAIYALAL v.\n\nHAROOSHAN SINGH AND OTHERS\n\nFebnllhy 5, 1965\n\n[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,\n\nM. HIDAYATULLAH, J.C. SHAH AND s. M. SIKRI, JI.]"}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 61, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 89, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, J", "label": "JUDGE", "start_char": 105, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 124, "end_char": 131, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "s. M. SIKRI", "label": "JUDGE", "start_char": 136, "end_char": 147, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 155, "end_char": 176, "source": "regex", "metadata": {}}, {"text": "Art. 341", "label": "PROVISION", "start_char": 178, "end_char": 186, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Schedule C", "label": "PROVISION", "start_char": 567, "end_char": 577, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 770, "end_char": 783, "source": "ner", "metadata": {"in_sentence": "In appeal to the Supreme Court."}}, {"text": "Art. 341", "label": "PROVISION", "start_char": 1093, "end_char": 1101, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "[1965] 1 S.C.R. 316", "label": "CASE_CITATION", "start_char": 1172, "end_char": 1191, "source": "regex", "metadata": {}}, {"text": "Art. 341", "label": "PROVISION", "start_char": 1257, "end_char": 1265, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 1875, "end_char": 1903, "source": "ner", "metadata": {"in_sentence": "882 H-883 CJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No."}}, {"text": "N. C. Chatterjee", "label": "OTHER_PERSON", "start_char": 2079, "end_char": 2095, "source": "ner", "metadata": {"in_sentence": "N. C. Chatterjee, V. S. Sawhney, S. S. Kanjuja and Ganpat Rai, for the appellant."}}, {"text": "V. S. Sawhney", "label": "OTHER_PERSON", "start_char": 2097, "end_char": 2110, "source": "ner", "metadata": {"in_sentence": "N. C. Chatterjee, V. S. Sawhney, S. S. Kanjuja and Ganpat Rai, for the appellant."}}, {"text": "S. S. Kanjuja", "label": "OTHER_PERSON", "start_char": 2112, "end_char": 2125, "source": "ner", "metadata": {"in_sentence": "N. C. Chatterjee, V. S. Sawhney, S. S. Kanjuja and Ganpat Rai, for the appellant."}}, {"text": "Ganpat Rai", "label": "OTHER_PERSON", "start_char": 2130, "end_char": 2140, "source": "ner", "metadata": {"in_sentence": "N. C. Chatterjee, V. S. Sawhney, S. S. Kanjuja and Ganpat Rai, for the appellant."}}, {"text": "G. S. Pathak", "label": "LAWYER", "start_char": 2162, "end_char": 2174, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak and Dipak Datta Chaudhry, for respondent No."}}, {"text": "Dipak Datta Chaudhry", "label": "LAWYER", "start_char": 2179, "end_char": 2199, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak and Dipak Datta Chaudhry, for respondent No."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 2269, "end_char": 2283, "source": "ner", "metadata": {"in_sentence": "H The Judgment of the Court was delivered by Gajendragadkar, C.J. This appeal by special leave arises out of an Election petition filed by respondent No."}}, {"text": "Sehore", "label": "GPE", "start_char": 2583, "end_char": 2589, "source": "ner", "metadata": {"in_sentence": "1, Harikishan\n\nSUPIU!MB COURT REPORTS\n\n[1965] 2 S. C.R.\n\nSingh, challenging the validity of the election of the appellant, A '\" Bhaiyalal, in a reserved seat in the Berasia Constituency in the district of Sehore in Madhya Pradesh."}}, {"text": "Madhya Pradesh", "label": "GPE", "start_char": 2593, "end_char": 2607, "source": "ner", "metadata": {"in_sentence": "1, Harikishan\n\nSUPIU!MB COURT REPORTS\n\n[1965] 2 S. C.R.\n\nSingh, challenging the validity of the election of the appellant, A '\" Bhaiyalal, in a reserved seat in the Berasia Constituency in the district of Sehore in Madhya Pradesh."}}, {"text": "State of Madhya Pradesh", "label": "GPE", "start_char": 3277, "end_char": 3300, "source": "ner", "metadata": {"in_sentence": "The appellant had filed his nomination.paper on the 19th January, l 962 before the Returning Officer at Sehore and had declared that C he was a member of the Chamar scheduled caste of the State of Madhya Pradesh in relation to Sehore district."}}, {"text": "Sehore district", "label": "GPE", "start_char": 3316, "end_char": 3331, "source": "ner", "metadata": {"in_sentence": "The appellant had filed his nomination.paper on the 19th January, l 962 before the Returning Officer at Sehore and had declared that C he was a member of the Chamar scheduled caste of the State of Madhya Pradesh in relation to Sehore district."}}, {"text": "Raisen", "label": "GPE", "start_char": 3506, "end_char": 3512, "source": "ner", "metadata": {"in_sentence": "1 contended that Dohar caste was not recognised as the scheduled caste for the district of Sehore and Raisen, and so, the Returning Officer had improperly and illegally."}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 5159, "end_char": 5184, "source": "ner", "metadata": {"in_sentence": "Against this decision of the Election Tribunal, the appellant preferred an appeal to the Madhya Pradesh High Court."}}, {"text": "23rd April, 1963", "label": "DATE", "start_char": 5834, "end_char": 5850, "source": "ner", "metadata": {"in_sentence": "In consequence, the appeal preferred by the appellant was dismissed on the 23rd April, 1963."}}, {"text": "Chatterjee", "label": "OTHER_PERSON", "start_char": 5975, "end_char": 5985, "source": "ner", "metadata": {"in_sentence": ", On behalf of the appellant Mr. Chatterjee has contended that the High Court was in error in cQnfirming tho finding of the Election Tribunal in regard to the caste to which the appellant belonged."}}, {"text": "Schore district", "label": "GPE", "start_char": 7716, "end_char": 7731, "source": "ner", "metadata": {"in_sentence": "This evidence shows that Chamars and Mochis of Schore district lived in mohallas different from the H mohallas in which the Dohars lived."}}, {"text": "Kishanlal", "label": "WITNESS", "start_char": 7932, "end_char": 7941, "source": "ner", "metadata": {"in_sentence": "l, the High Court has attched considerable significance to the evidence of Kishanlal, P. W. 4."}}, {"text": "Kishanlal", "label": "OTHER_PERSON", "start_char": 8325, "end_char": 8334, "source": "ner", "metadata": {"in_sentence": "Kishanlal's evidence is absolutely clear and unambiguous.", "canonical_name": "Kishanlal D"}}, {"text": "Kishanlal D", "label": "OTHER_PERSON", "start_char": 9125, "end_char": 9136, "source": "ner", "metadata": {"in_sentence": "It is not likely that a person like Kishanlal D would make false statement about his own caste.", "canonical_name": "Kishanlal D"}}, {"text": "Article 341", "label": "PROVISION", "start_char": 11418, "end_char": 11429, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 341", "label": "PROVISION", "start_char": 11451, "end_char": 11462, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Parliament", "label": "ORG", "start_char": 11912, "end_char": 11922, "source": "ner", "metadata": {"in_sentence": "Sub-Article (2) lays down that Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as afore5aid a notification issued under the said clause shall not be E varied by any subsequent notification."}}, {"text": "Art. 341", "label": "PROVISION", "start_char": 12362, "end_char": 12370, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Chamar", "label": "PETITIONER", "start_char": 12503, "end_char": 12509, "source": "ner", "metadata": {"in_sentence": "In the present case, the notification refers to Chamar, Jatav or Mochi, and so, in dealing with the question in dispute between the parties, F the enquiry which the Election Tribunal can hold fa whether or not tb-: appellant is a Chamar, Jatav or Mochi.", "canonical_name": "Cha mar"}}, {"text": "Jatav", "label": "PETITIONER", "start_char": 12511, "end_char": 12516, "source": "ner", "metadata": {"in_sentence": "In the present case, the notification refers to Chamar, Jatav or Mochi, and so, in dealing with the question in dispute between the parties, F the enquiry which the Election Tribunal can hold fa whether or not tb-: appellant is a Chamar, Jatav or Mochi."}}, {"text": "Mochi", "label": "PETITIONER", "start_char": 12520, "end_char": 12525, "source": "ner", "metadata": {"in_sentence": "In the present case, the notification refers to Chamar, Jatav or Mochi, and so, in dealing with the question in dispute between the parties, F the enquiry which the Election Tribunal can hold fa whether or not tb-: appellant is a Chamar, Jatav or Mochi.", "canonical_name": "Mochi"}}, {"text": "Art. 341", "label": "PROVISION", "start_char": 13036, "end_char": 13044, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Bhovi", "label": "OTHER_PERSON", "start_char": 13310, "end_char": 13315, "source": "ner", "metadata": {"in_sentence": "1, though Voddar by caste, belonged to the scheduled caste of Bhovi mentioned in the Order, and while H holding that an enquiry into the said question was permissible, the Court has elaborately referred to the special and unusual\n\n(I) [196Sj I S.C.R. 316."}}, {"text": "SUPRBMB COURT RBPOllTS", "label": "COURT", "start_char": 13509, "end_char": 13531, "source": "ner", "metadata": {"in_sentence": "882 SUPRBMB COURT RBPOllTS\n\ncircumstances which justified the High Court in holding that A V oddar caste was the same as the Bhovi caste within the meaning of the Order; otherwise the normal rule would be : \"it may be accepted that it is not open to make any modification in the Order by producing evidence to show, for example, that though caste A alone is mentioned in the Order, caste B is also a part of caste A and, therefore, must be deemed to be included in caste A.\" That is another reason why the plea made by the appellant that the Dohar caste is a sub-caste of the Chamar caste and as such must be deemed to be included in the Order, cannot be accepted."}}, {"text": "Datia", "label": "GPE", "start_char": 14519, "end_char": 14524, "source": "ner", "metadata": {"in_sentence": "In the district of Datia, for instance, entry 3 refers to Chamar, Ahirwar, Chamar Mangan, Mochi or Raidas."}}, {"text": "Chamar Mangan", "label": "OTHER_PERSON", "start_char": 14575, "end_char": 14588, "source": "ner", "metadata": {"in_sentence": "In the district of Datia, for instance, entry 3 refers to Chamar, Ahirwar, Chamar Mangan, Mochi or Raidas."}}, {"text": "Maharashtra", "label": "GPE", "start_char": 14632, "end_char": 14643, "source": "ner", "metadata": {"in_sentence": "Similarly, in respect of Maharashtra, Item 1, entries 3 and 4 refer to the D same castes by different names which shows either that the said castes are known differently or consist of different sub-castes."}}, {"text": "Cha mar", "label": "PETITIONER", "start_char": 14869, "end_char": 14876, "source": "ner", "metadata": {"in_sentence": "Likewise, item 2, entry 4 in the said list refers to Cha mar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami, Surjyabanshi or Surjyaramnami.", "canonical_name": "Cha mar"}}, {"text": "Chamari", "label": "PETITIONER", "start_char": 14878, "end_char": 14885, "source": "ner", "metadata": {"in_sentence": "Likewise, item 2, entry 4 in the said list refers to Cha mar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami, Surjyabanshi or Surjyaramnami.", "canonical_name": "Cha mar"}}, {"text": "Mochi", "label": "PETITIONER", "start_char": 14887, "end_char": 14892, "source": "ner", "metadata": {"in_sentence": "Likewise, item 2, entry 4 in the said list refers to Cha mar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami, Surjyabanshi or Surjyaramnami.", "canonical_name": "Mochi"}}, {"text": "Nona", "label": "OTHER_PERSON", "start_char": 14894, "end_char": 14898, "source": "ner", "metadata": {"in_sentence": "Likewise, item 2, entry 4 in the said list refers to Cha mar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami, Surjyabanshi or Surjyaramnami."}}, {"text": "Rohidas", "label": "OTHER_PERSON", "start_char": 14900, "end_char": 14907, "source": "ner", "metadata": {"in_sentence": "Likewise, item 2, entry 4 in the said list refers to Cha mar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami, Surjyabanshi or Surjyaramnami."}}, {"text": "Ramnami", "label": "OTHER_PERSON", "start_char": 14909, "end_char": 14916, "source": "ner", "metadata": {"in_sentence": "Likewise, item 2, entry 4 in the said list refers to Cha mar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami, Surjyabanshi or Surjyaramnami."}}, {"text": "Satnami", "label": "OTHER_PERSON", "start_char": 14918, "end_char": 14925, "source": "ner", "metadata": {"in_sentence": "Likewise, item 2, entry 4 in the said list refers to Cha mar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami, Surjyabanshi or Surjyaramnami."}}, {"text": "Surjyabanshi", "label": "OTHER_PERSON", "start_char": 14927, "end_char": 14939, "source": "ner", "metadata": {"in_sentence": "Likewise, item 2, entry 4 in the said list refers to Cha mar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami, Surjyabanshi or Surjyaramnami."}}, {"text": "Surjyaramnami", "label": "OTHER_PERSON", "start_char": 14943, "end_char": 14956, "source": "ner", "metadata": {"in_sentence": "Likewise, item 2, entry 4 in the said list refers to Cha mar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami, Surjyabanshi or Surjyaramnami."}}, {"text": "Chambhar", "label": "GPE", "start_char": 15022, "end_char": 15030, "source": "ner", "metadata": {"in_sentence": "It is also remarkable that in Maharashtra in certain districts Chambhar and Dhor are included in the list E separately."}}, {"text": "Dhor", "label": "GPE", "start_char": 15035, "end_char": 15039, "source": "ner", "metadata": {"in_sentence": "It is also remarkable that in Maharashtra in certain districts Chambhar and Dhor are included in the list E separately."}}, {"text": "Art. 341", "label": "PROVISION", "start_char": 15594, "end_char": 15602, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 341", "label": "PROVISION", "start_char": 15938, "end_char": 15946, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 341", "label": "PROVISION", "start_char": 16022, "end_char": 16030, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 341", "label": "PROVISION", "start_char": 17011, "end_char": 17019, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 341", "label": "PROVISION", "start_char": 17920, "end_char": 17928, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]}
{"document_id": "1965_2_884_893_EN", "year": 1965, "text": "&,84\n\nMOHD. AYUB KHAN v.\n\nCOl\\'1MISSIONER OF POLICE, MADRAS AND_ ANOTIIER\n\nFebruary 5, 1965\n\n[K. SUBBA RAo, K. N. WANCHOO, M. HIDAYATULLAH, B,\n\nJ. C. SHAH AND S. M. SIKRI, JJ.)\n\nIndian Citizenship Act, 1955-Determination of. disputed citizenship by Central Government under s. 9(2)-Enquiry for that _ purpose urrder Rule 30 of the Citizenship Rules, 1956, whether quasi-judicial proceedinz -Reasonable opportunity to affected person whether necesSary-V alidity o/ s. 9 and paragraph 3 of Schedule Ill to the Rule('.\n\nThe appellant was ordered by the Commissioner of Police Madras to - C leave India because he had obtained a Pakistan passport and had thereby become the citizen of a foreign country. He made an application to tho Central Governr.ient under s. 9(2) of the Indian Citizenship Act, 1955 for , the determination of his citizenship. The Central Goveinment rejected his claim to Indian Citizenship without giving him a bearing. The appellant thereupon filed a writ petition before the High Court in which he challenged the validity of s, 9 of the Citizenship Act and also-that of Paragraph 3 D of Sch. III to the Citizenship Rules, 1956. The High Court rejected these contentions and also his further contention that the enquiry prescribed by R. 30 of the Citizenship rules conducted by the Central Government for the purpose of a decision under s. 9(2) is a quasi-judicial process in which a reasonable opportunity to the affected citizen to prove bis case is necessary.\n\nWith certificate of fitness granted by the High Court the appellant came to this Court.\n\n, HELD(i) If voluntary acquisition of citizenship of another country determines Indian Citizenship within the meaning of s. 9(1) and by virtue of paragraph 3 of Sch. III of the Citizenship Rules a conclusive presumption of voluntary acquisition of citizenship is to be raised from the obtaining of a passport from the Government of any other country, it wowd be implicit that the obtaining of a passport was the result of the exercise of free volition by the citizen. This view is strengthened by the scheme of s. 9(2) read with Rule 30 which contemplates an enquiry by an authority prescribed under sub-s. (2) for determination of the question whether citizenship of another country bas been acquired by an Indian Citizen. [892\n\nD-E]\n\n(ii) Determination of the ').Uestion as to whether, when, and how foreign citiz_enship bas been acqwred postulates an approach as in a quasijudicial enquiry : the citizen cancemed must be given duo notice of the nature of the action which in the view of the authority involves termination of Indian Citizenship, and reasonable opportunity must be afforded to the citizen to convince the authority that what is alleged against him is not true. [891 B-DJ\n\n(iii) Obtaining of a passport of a foreign country cannot in all cases mean merely receiving the passport.\n\nCases may be visualised in which on account of force or fraud a pe=n may be compelled or induced to .\n\nobtain a passport from a foreign country. It would be difficult to say that in such a case the passport has been 'obtained' within the meaning of paragraph 3, of_ Sch. III. [891 G-H]\n\n(iv) The question whether the passport was voluntarily obtained cannot be decided by the foreign country, representative of which issue!\n\nA a passport; and mere issue of a passport may not always be regarded decisive of the 'l, Uestion that the passport was voluntarily obtained. Section (2) read with r. 30 confers the power to determine whether Indian Citizenship is terminated upon the specified authority, and in exercising that power the authority is guided by the statutory rules of evidence. It would be impossible to bold that termination of Indian Citiiensbip depends\n\nupon the acuon of a foreign country in iS>Uing tbe passport.\n\n[89~ F-G]\n\n(v) The appellant was not given opportunity by the Central Government to prove his case that the Pakistan passport had not been voluntar!Jy obtained by him. The C-i!ntral Government had therefore to re-detemune the qustion of his cittznship after giving him an opportunity to prove his c., c, [893 A-Bl\n\nOv1L APPELLATE JURISDICTION : Civil Appeal No. 250 of 1964.\n\nApceal from the judgment and order dated November 1959, of the lvladras High Court in Writ Appeal No. 46 of 1959.\n\nP. Ram Reddy and A. V. V. Nair, for the appellants.\n\nA. Ranganadham Chetty and A. V. Rangam, for the respon- D dents.\n\nS. V. Gupte, Solicitor-Genera/, and R. H. Dhebar, for the intervener.\n\nThe Judgment of the Court was delivered by\n\nE Shah J.\n\nThe appellant Mohd. Ayub Khan petitioned the High Court of Madras for a writ of mandamus restraining the Commissioner of Police, Madras, from taking action pursuant to\n\nth, e order of the Government of Madras, Home Department, No. 83546, dated May 28, 1958 and from interfering with the appellant's rights as a citizen of India. The petition was dismissed F by Balakrishna Ayyar, J., and the order was confirmed in appeal by a Division Bench of the High Court. With certificate granted by the High Court, the appellant has appealed to this Court.\n\nThe appellant, who claims that he had acquired the status of an Indian citizen on the commencement of the Constitution as a person who had been ordinarily resident in the territory of India G for not less than five years immediately preceding that date, was served with a notice dated July 17, 1957 informing him that as he had obtained Pakistan Passport No. 071377, dated April I, 1953 he should leave India within one month from the date of service of the notice, and in default of compliance he would be H prosecuted and deported from India under the Foreigners Act, 1946 as amended by the Foreigners Law (Amendment) Act,\n\n1957. On August 19, 1957, the appellant applied to the Collector of Madras for registration as a citizen of India. Later he applied\n\n886 SUPREME COUllT REPORTS [1965] 2 S.C.ll.\n\nto the Central Government under s. 9 ( 2) of the Citizenship Act, A 1955 to determine the question whether he continued to remain a citizen of India, and prayed that he may be given an opporturiity to produce all ''necessary evidence in support of his claim as regards Indian citizenship\".\n\nWithout affording him that opportunity, however, the Government of India by order, dated May 7, 1958 rejected the application of the appellant under s. 9 of the B Citizenship Act.\n\nIn support of his petition before the High Court for issue of a writ of mandamus, the appellant urged that s. 9 of the Citizenship Act, 1955 was ultra vires the Parliament and cl. 3 of Sch. ill to the Citizenship Rules was also ultra vires the Central Govern- C ment, and that in any event Rule 30 of the Citizenship Rules contemplated a quasi-judicial inquiry in which an opportunity must be given to the party sought to be affected, to make a representation and to adduce evidence to show that the acquisition of a passport from the High Commissioner for Pakistan was not voluntazy. Balakrishna Ayyar, J., rejected these contentions.\n\nD In dealing with the question whether the order of the Central Government was Ul:lenforceable because opportunity to prove the appellant's case that he had not voluntarily renounced Indian citizenship, the learned Judge observed that the appellant \"had not indicated on what points he intended to lead evidence and what kind of evidence he intended to adduce\".\n\nIn appeal the High Court held that the appellant ''had in fact made a declaration on the basis of which the passport was obtained and the allegations made by him did not even imply that he was forced to make a false declaration\". In the view of the High Court s. 9 lays \"down an objective test and when the individual had F brought himself within it, the law determines the legal consequences of the situatron, independently of his intent or understanding\", and therefore there was no scope for an enquiry of the nature claimed by the appellant.\n\nBefore dealing with the arguments raised by counsel for the G appellant in this appeal, certain constitutional and legislative provisions which have a bearing thereon may be set out. Part Il Of the Constitution deals with the topic of citizenship. By Art. 5 a person who at the commencement of the Constitution had hia domicile in the territory of India and who was born in the territory of India, or either of whose parents was born in the territory H of dia, or who had been ordinarily resident in the territory of India for not less than five years immediately preceding such\n\nA commencement was deemed a citizen of India. By virtue of\n\ncl. (3) of Art. 1 the territory of India is comprised of the States, the Union territories and such other territories as may be acquired. Article 6 deals with the acquisition of rights of citizenship of persons who have migrated to India from Pakistan, and Art; 7 deals with the rights of citizenship of migrants to Pakistan.\n\nB Article 8 deals with the rights o( citizenship of certain persons of Indian origin residing outside India. Article 9 provides :\n\n\"No person shall be a citizen of India by virtu~ of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily c acquired the citizenship of any foreign State.\"\n\nArticle 10 provides that every person who is or is deemed to be a citizen of India under any of the foregoing provisions shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.\n\nBy Art. 11 Parliament is D authorised to make provision with respect to the acquisition and termination of citizenship and all other matters relating to citizen ship. Article 367 cl. (3) defined a \"foreign State\" as any State other than India, but the President was by the proviso thereto authorised, subject to the provisions of any law made by Parliament, to declare by order any State not to be a foreign State for E such purposes as may be specified in the order. By a declnration made under the Constitution (Declaration as to foreign States) Order, 1950, it was declared that, subject to the provisions of any law made by Parliament, every country within the Commonwealth was not to be a foreign State for the purpose of Art. 9 of the Constitution. Pakistan could not therefore be regarded as a F foreign State, until legislation was enacted by Parliament to the contrary. In 1955 the Parliament enacted the Citizenship Act 57 of 1955 to provide for the acquisition and termination of Indian citizenship. The Act made detailed provisions for acquisition of citizenship by birth, by descent, by registration, by naturalisation and by incorporation of territory in ss. 3 to 7 of the Act. In G ss. 8, 9 & 10 provision was made for renunciation, termination and deprivation of citizenship. By s. 9 it was enacted that :\n\n\"(1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires or has at any time between the 26th January, 1950 and the commencement of this Act voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India : USup./6S-11\n\nSUPREME COUB.T REPORTS\n\n[1965] 2 S.C.R.\n\n\"Provided that nothing in this sub-section shall A apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs.\n\n(2) H any question arises as to whether, when or B how any person has acquii; ed the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf.\"\n\nBy s. 18 ( 1) the Central Government was authorised to make C rules, inter alia, for setting up the authority to determine the question of acquisition of citizenship of another country, and the procedure to be followed by such authority and rules of evidence relating to such cases. In exercise of the authority under s. 18(1) the Citizenship Rules, 1956 were framed by the Central Government and they came into force on July 7, 1956. By Rule 30, D it was provided :\n\n\" ( 1) H any question arises as to whether, when or how any person has acquired the citizenship of another country, the authority to determine such question shall, for the purposes of section 9 ( 2) , be the Central Government.\n\n( 2) The Central Government shall in determining any such question have due regard to the rules of evidence specified in Schedule ID.\"\n\nSchedule ill set out the rules referred to in Rule 30(2). Causes 1, 2 and 3 are material :\n\n\"l. Where it appears to the Central Government that a citizen of India has voluntarily acquired the citizenship of any other country, it may require him to prove within such period as may be fixed by it in this behalf, that he has not voluntarily acquired the citizenship; of that country and the burden of proving that he has not so acquired such citizenship shall be on him.\n\n\"2. For the purpose of determining any question relating to the acquisition by an Indian citizen of the citizenship of any other country, the Central Government may make such reference as it thinks fit in respect of that question or of any matter relating thereto, to its Embassy in that country or to the Government of\n\nthat country and act on any report or information received in pursuance of such reference.\n\n\"3. The fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that dato.\"\n\nAcquisition of citizenship at the commencement of the Constitution was governed by Arts. 5, 6 and 7. If, however, a person bad voluntarily acquired citizenship of a foreign State he could not claim the status of a citizen under Art. 5, and he could not C be deemed to be a citizen by virtue of Art. 6 or Art. 8. Article 10 continues, subject to the provisions of any law to be made by Parliament, the right of citizenship acquired or deemed to be a<:quired under the foregoing Articles.\n\nPower of Parliament to enact legislation to make provision with respect to the acquisition and termination of citizenship is as a matter of abundant caution D affirmed by Art. 11. The Parliament by s. 9 of the Citizenship Act, 1955 legislated in regard to determination of citizenship and provided, inter alia, that a person who has voluntarily acquired since January 26, 1950 or acquires lifter the commencement of the Act citizenship of another country, shall cease to be a citizen of India, and that if any question arises as to whether citizenship E of another country has been acquired by a person, the question must be determined by the authority, in such manner and having regard to such rules of evidence. as may be prescribed in that behalf.\n\nThis Court has pronounced upon the legislative competence F of the Parliament to enact s. 9 of the Citizenship Act, 1955 in lzhar Ahmad Khan v. Union of India(').\n\nIn the same case challenge to the validity of Rule 3 of Sch. ill to the Rules framed under the Citizenship Act, 1955 was also negatived. Mr. Ram Reddy for the appellant contended that as certain important aspects of the plea of invalidity were not presented before the G C'-0urt at the hearing of !Viar Ahmad Khan's case('), we shoulcl again proceed to consider the challenge to the validity of Rule 3 of Sch. ill and s. 9 of the Citizenship Act limited to those arguments. We are unable, however, to countenance the submission.\n\nThis Court has held on the arguments presented before the Court in lzhar Ahmad Khan's case(') that s. 9 of the Act was validly H enacted by the Parliament. and that Rule 3 of Sch. ill was competently made by the Central Government in exercise of the\n\n(1) [1962] Supp. 3 S.C.R. 235.\n\n890 SUPllEMB COURT REPORTS\n\n(1965) 2 S.C.R.\n\npowers conferred by s. 18 of the Citizenship Act.\n\nAssuming A that certain aspects of the question were not brought to the notice of the Court, we see no grounds for entering upon re-examination of the question. It may be pointed out that the judgment of the Court in Izhar Ahmad Khan's case(') was followed by this Court in the Government of Andhra Pradesh v. Syed Mohd. Khan(').\n\nB The question which survives for determination is whether the appellant can challenge the validity of the order of the Commissioner of Police pursuant to the order made by the Central Government under s. 9(2) of the Act on the plea t.1-iat he had not \"voluntarily obtained\" a passport from the High Commissioner for Pakistan in India. In the petition as originally filed, the Union c of India was not impleaded as a party-respondent and on the state of authorities then in force the appellant could not implead the Union of India as a party-respondent to the petition filed by him in the High Court of Madras. When this appeal was heard on December 7, 1964. notice was issued calling upon the Union to produce the orders and proceedings under s. 9 (2) . of the D Citizenship Act relating to the case of the appellant. Pursuant to the direction the relevant proceedings and order have been produced and an affidavit has been filed by the Under Secretary in the Ministry of Home Affairs. It is now common ground that in the inquiry contemplated by Rule 30 of the Citizenship Rules, no opportunity was afforded to the appellant to prove his case that E he had not obtained the passport voluntarily from the High Commissioner for Pakistan\n\nSection 9 ( I ) of the Citizenship Act provides for termination of citizenship of an Indian citizen if he has (subject to the proviso which is not material) by naturalisation, registration or otherwise, F voluntarily acquired citizenship of another country.\n\nSubject to the exception in the proviso therefore naturalisation, registration or acquisition of citizenship of another country operates to tenninate the citizenship of India. Acquisition of citizenship of another country to determine Indian citizenshin must however be voluntary. By sub-s. (2) provision is made for setting up an authority G to determine the question where, when and how citizenshiu of another country has been acquired, and by Rule 30 tl)e Central Government is designated as the authority, which is invested with power to determine the question in such manner. and having regard to such rules of evidence as may be prescribed. ProvisiO!I for prescribing rules of evidence, having re!\\ard to which the H question of acquisition of citizenship of another country has to In\n\n(I} [1962] Supp. 3 S.C.R. 235.\n\n(2) [1962] Supp. 3 S.C.R. 288.\n\nAYUB KHAN V. ~SSI<>Ni!ll (Shah, /.) 891\n\nA determined, clearly indicates that the order is not to be made on the mere satisfaction of the authority without enquiry, that the citi7.cn concerned ha8 obtained a passpon of another country.\n\nThe question as to whether when and how foreign citizenship hes been acquired has to be determined having regard to the rules of evidence prribed, and termination of Indian citizen- B ahip being the consequence of voluntary acquisition of foreign\n\ncitiun•hip, the authority has also to determine that such latter cirivmahip has been voluntarily acquired. Determination of the question postulates an approach as in a quasi:, judicial enquiry : the citizen concerned must be given due notice of the nature of the action which in the view of the authority involves termination C of Indian citizenship, . and reasonable opportunity must be\n\nafforded to the citizen to convince the authority that what is alloged against him is not true. What the scope and extent of ille enquiry to be made by the authority on a plea raised by the citizen concerned should be, depends upon the circumstances of\n\n0 each case.\n\nParagraph 1 of Sch. m which raises a rebuttable presumption, when it appears to the Central Government that a citir.en has voluntarily acquired foreign citizenship, casts the burden of proof upon the citizen to disprove such acquisition, and Paragraph 2 which authorises the Central Government to make enquiries for E the purpose of determining the question raised, strongly support the view that the Central Government must arrive at a decision that the Indian citizen has voluntarily acquired foreign citizenshin, before action can be taken against him on the footing that his citizenship is terminated. Paragraph 3 raises a conclusive presumption that a citizen of India who has obtained a passoort F {rem a foreign country on any date, has before that date voluntarily acquired citizenship of that other country. J'ly the application of the rule in Paragraph 3 the authority must regard obtaining of a foreign passport on a particular date as conclusive proof that the Indian citizen has voluntarily acquired citizenship of 8llOtller country before that date. But obtaining of a passport of G a foreign country cannot in all cases merely mean receiving the\n\npassport. H a plea is raised by the citizen that he had not voluntarily obtained the passport, the citizen must be afforded an opportunity to prove that fact. Cases may be visualized in which on account of force a person may be compelled or on account of\n\nfraud or mis-representation he may be induced, without any H mtention of renunciation of his Indian citizenship, to obtain a\n\npiSS'pOrt from 11 foreign country. It would be difficult to say that IUCh a passport is one which has been. \"obtained\" within the\n\n892 SUPlU!ME COURT llBPORTS\n\n\nmeaning of Paragraph 3 of Sch. ill and that a conclusive pre- A sumption must arise that he has acquired voluntarily citizenship of that country.\n\nWe are not concerned in this case with the truth or otherwise of the plea raised by the appellant in his petition before the High Court that he was compelled to obtain the passport from ilie B High Commissioner for Pakistan. Balakrishna Ayyar, J., observed that the plea of the appellant was not bona fide.\n\nBut it is not the function of the courts to determine the question whether the\n\nplea raised is true or not : it is for the authority invested with power under s. 9 (2) to determine that question if it is raised.\n\nThe High Court in appeal was of the view that s. 9 laid down an C objective test and once it was found that the passport was obtained in fact by an Indian citizen from another country, the law determined the legal consequences of that conduct and no question of his \"intent or understanding arose\".' We are unable to agree with that view. If voluntary acquisition of citizenship of another country determines Indian citizenship within the meaning of D s. 9 ( 1 ) , and by virtue of Paragraph 3 of Sch. ill of the Citizenship Rules a conclusive presumption of voluntary acquisition of citizenship is to be raised from the obtaining of a passport from tho Government of any other country, it would be implicit that the obtaining of a passport was the result of the exercise of free volition by the citizen. This view is strengthened by the scheme E of s. 9(2) read with Rule 30 which contemplates an enquiry by an authority prescribed under sub-s. ( 2) for determination of the question whether citizenship of another country has been acquired by an Indian citizen.\n\nCounsel for the State of . Madras submitted that the question whether the passport was voluntarily obtained must be decided by the foreign country, representative of which issues the pa~ port, and mere issue of a foreign passport must always be regarded as decisive of the question that the passport was voluntarily obtained. Buts. 9(2) read with Rule 30 confers the power to detern)ine whether Indian citizenship is terminated upon the G specified authority, and in exercising that power the authority is guided by the statutory rules of evidence. It would be impossible to hold that termination of Indian citizenship depends upon action of a foreign country in issuing the passport.\n\nWe are therefore of the view that the High Court was in error in holding that the decision of the Government of India without H giving an opportunity to the appellant to prove his case that he had been compelled by the police to obtain a pasrt from the\n\nA High Commissioner for Pakistan will sustain the order of deportation against the appellant. It will of course be open to the Central Government to determine whether the appellant has lost the citizenship of India by voluntarily acquiring the citizenship .of Pakistan by obtaining a passport from the High Commissioner for\n\nPakistan, or in any other manner. But the determination must B be made in accordance with law.\n\nThe appeal is allowed, and it is ordered that the order of deportation passed by the Commissioner of Police, Madras shall not be enforced until the Central Government determines the status of the appellant according to law. No order as to costs.\n\nAppeal allowed.", "total_entities": 106, "entities": [{"text": "84\n\nMOHD. AYUB KHAN", "label": "PETITIONER", "start_char": 2, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "84\n\nMOHD. AYUB KHAN", "offset_not_found": false}}, {"text": "COl\\'1MISSIONER OF POLICE, MADRAS AND_ ANOTIIER", "label": "RESPONDENT", "start_char": 26, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF POLICE, MADRAS AND ANOTHER", "offset_not_found": false}}, {"text": "K. SUBBA RAo", "label": "JUDGE", "start_char": 94, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 108, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 123, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 147, "end_char": 154, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. M. SIKRI, JJ.", "label": "JUDGE", "start_char": 159, "end_char": 175, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Indian Citizenship Act, 1955", "label": "STATUTE", "start_char": 178, "end_char": 206, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 274, "end_char": 281, "source": "regex", "metadata": {"linked_statute_text": "Indian Citizenship Act, 1955", "statute": "Indian Citizenship Act, 1955"}}, {"text": "Citizenship Rules, 1956", "label": "STATUTE", "start_char": 331, "end_char": 354, "source": "regex", "metadata": {}}, {"text": "s. 9", "label": "PROVISION", "start_char": 464, "end_char": 468, "source": "regex", "metadata": {"linked_statute_text": "the Citizenship Rules, 1956", "statute": "the Citizenship Rules, 1956"}}, {"text": "Schedule Ill to the Rule", "label": "STATUTE", "start_char": 488, "end_char": 512, "source": "regex", "metadata": {}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 757, "end_char": 764, "source": "regex", "metadata": {"linked_statute_text": "Schedule Ill to the Rule", "statute": "Schedule Ill to the Rule"}}, {"text": "Indian Citizenship Act, 1955", "label": "STATUTE", "start_char": 772, "end_char": 800, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 1058, "end_char": 1073, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "III to the Citizenship Rules, 1956", "label": "STATUTE", "start_char": 1113, "end_char": 1147, "source": "regex", "metadata": {}}, {"text": "Central Government", "label": "ORG", "start_char": 1302, "end_char": 1320, "source": "ner", "metadata": {"in_sentence": "The High Court rejected these contentions and also his further contention that the enquiry prescribed by R. 30 of the Citizenship rules conducted by the Central Government for the purpose of a decision under s. 9(2) is a quasi-judicial process in which a reasonable opportunity to the affected citizen to prove bis case is necessary."}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 1357, "end_char": 1364, "source": "regex", "metadata": {"linked_statute_text": "III to the Citizenship Rules, 1956", "statute": "III to the Citizenship Rules, 1956"}}, {"text": "s. 9(1)", "label": "PROVISION", "start_char": 1694, "end_char": 1701, "source": "regex", "metadata": {"linked_statute_text": "III to the Citizenship Rules, 1956", "statute": "III to the Citizenship Rules, 1956"}}, {"text": "III of the Citizenship Rules", "label": "STATUTE", "start_char": 1739, "end_char": 1767, "source": "regex", "metadata": {}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 2084, "end_char": 2091, "source": "regex", "metadata": {"linked_statute_text": "III of the Citizenship Rules", "statute": "III of the Citizenship Rules"}}, {"text": "lvladras High Court", "label": "COURT", "start_char": 4237, "end_char": 4256, "source": "ner", "metadata": {"in_sentence": "Apceal from the judgment and order dated November 1959, of the lvladras High Court in Writ Appeal No."}}, {"text": "P. Ram Reddy", "label": "LAWYER", "start_char": 4289, "end_char": 4301, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy and A. V. V. Nair, for the appellants."}}, {"text": "A. V. V. Nair", "label": "LAWYER", "start_char": 4306, "end_char": 4319, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy and A. V. V. Nair, for the appellants."}}, {"text": "A. Ranganadham Chetty", "label": "LAWYER", "start_char": 4342, "end_char": 4363, "source": "ner", "metadata": {"in_sentence": "A. Ranganadham Chetty and A. V. Rangam, for the respon- D dents."}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 4368, "end_char": 4380, "source": "ner", "metadata": {"in_sentence": "A. Ranganadham Chetty and A. V. Rangam, for the respon- D dents."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 4408, "end_char": 4419, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-Genera/, and R. H. Dhebar, for the intervener."}}, {"text": "R. H. Dhebar", "label": "LAWYER", "start_char": 4444, "end_char": 4456, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-Genera/, and R. H. Dhebar, for the intervener."}}, {"text": "E Shah", "label": "JUDGE", "start_char": 4523, "end_char": 4529, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nE Shah J.\n\nThe appellant Mohd."}}, {"text": "Mohd. Ayub Khan", "label": "PETITIONER", "start_char": 4548, "end_char": 4563, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nE Shah J.\n\nThe appellant Mohd.", "canonical_name": "84\n\nMOHD. AYUB KHAN"}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 4579, "end_char": 4599, "source": "ner", "metadata": {"in_sentence": "Ayub Khan petitioned the High Court of Madras for a writ of mandamus restraining the Commissioner of Police, Madras, from taking action pursuant to\n\nth, e order of the Government of Madras, Home Department, No."}}, {"text": "Balakrishna Ayyar", "label": "JUDGE", "start_char": 4895, "end_char": 4912, "source": "ner", "metadata": {"in_sentence": "The petition was dismissed F by Balakrishna Ayyar, J., and the order was confirmed in appeal by a Division Bench of the High Court."}}, {"text": "India", "label": "GPE", "start_char": 5266, "end_char": 5271, "source": "ner", "metadata": {"in_sentence": "The appellant, who claims that he had acquired the status of an Indian citizen on the commencement of the Constitution as a person who had been ordinarily resident in the territory of India G for not less than five years immediately preceding that date, was served with a notice dated July 17, 1957 informing him that as he had obtained Pakistan Passport No."}}, {"text": "July 17, 1957", "label": "DATE", "start_char": 5367, "end_char": 5380, "source": "ner", "metadata": {"in_sentence": "The appellant, who claims that he had acquired the status of an Indian citizen on the commencement of the Constitution as a person who had been ordinarily resident in the territory of India G for not less than five years immediately preceding that date, was served with a notice dated July 17, 1957 informing him that as he had obtained Pakistan Passport No."}}, {"text": "India under the Foreigners Act, 1946", "label": "STATUTE", "start_char": 5620, "end_char": 5656, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "August 19, 1957", "label": "DATE", "start_char": 5717, "end_char": 5732, "source": "ner", "metadata": {"in_sentence": "On August 19, 1957, the appellant applied to the Collector of Madras for registration as a citizen of India."}}, {"text": "Madras", "label": "GPE", "start_char": 5776, "end_char": 5782, "source": "ner", "metadata": {"in_sentence": "On August 19, 1957, the appellant applied to the Collector of Madras for registration as a citizen of India."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 5918, "end_char": 5922, "source": "regex", "metadata": {"linked_statute_text": "India under the Foreigners Act, 1946", "statute": "India under the Foreigners Act, 1946"}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 5935, "end_char": 5950, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Government of India", "label": "ORG", "start_char": 6230, "end_char": 6249, "source": "ner", "metadata": {"in_sentence": "Without affording him that opportunity, however, the Government of India by order, dated May 7, 1958 rejected the application of the appellant under s. 9 of the B Citizenship Act."}}, {"text": "May 7, 1958", "label": "DATE", "start_char": 6266, "end_char": 6277, "source": "ner", "metadata": {"in_sentence": "Without affording him that opportunity, however, the Government of India by order, dated May 7, 1958 rejected the application of the appellant under s. 9 of the B Citizenship Act."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 6326, "end_char": 6330, "source": "regex", "metadata": {"linked_statute_text": "India under the Foreigners Act, 1946", "statute": "India under the Foreigners Act, 1946"}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 6340, "end_char": 6355, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 9", "label": "PROVISION", "start_char": 6465, "end_char": 6469, "source": "regex", "metadata": {"linked_statute_text": "India under the Foreigners Act, 1946", "statute": "India under the Foreigners Act, 1946"}}, {"text": "Citizenship Act, 1955", "label": "STATUTE", "start_char": 6477, "end_char": 6498, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "cl. 3", "label": "PROVISION", "start_char": 6534, "end_char": 6539, "source": "regex", "metadata": {"linked_statute_text": "the Citizenship Act, 1955", "statute": "the Citizenship Act, 1955"}}, {"text": "Pakistan", "label": "GPE", "start_char": 6915, "end_char": 6923, "source": "ner", "metadata": {"in_sentence": "ill to the Citizenship Rules was also ultra vires the Central Govern- C ment, and that in any event Rule 30 of the Citizenship Rules contemplated a quasi-judicial inquiry in which an opportunity must be given to the party sought to be affected, to make a representation and to adduce evidence to show that the acquisition of a passport from the High Commissioner for Pakistan was not voluntazy."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 7618, "end_char": 7622, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 8156, "end_char": 8162, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 1", "label": "PROVISION", "start_char": 8556, "end_char": 8562, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 6", "label": "PROVISION", "start_char": 8683, "end_char": 8692, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 8", "label": "PROVISION", "start_char": 8874, "end_char": 8883, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 9", "label": "PROVISION", "start_char": 8981, "end_char": 8990, "source": "regex", "metadata": {"statute": null}}, {"text": "article 5", "label": "PROVISION", "start_char": 9055, "end_char": 9064, "source": "regex", "metadata": {"statute": null}}, {"text": "article 6", "label": "PROVISION", "start_char": 9117, "end_char": 9126, "source": "regex", "metadata": {"statute": null}}, {"text": "article 8", "label": "PROVISION", "start_char": 9130, "end_char": 9139, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 10", "label": "PROVISION", "start_char": 9214, "end_char": 9224, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliament", "label": "ORG", "start_char": 9399, "end_char": 9409, "source": "ner", "metadata": {"in_sentence": "Article 10 provides that every person who is or is deemed to be a citizen of India under any of the foregoing provisions shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen."}}, {"text": "Art. 11", "label": "PROVISION", "start_char": 9444, "end_char": 9451, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 367", "label": "PROVISION", "start_char": 9608, "end_char": 9619, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 9", "label": "PROVISION", "start_char": 10168, "end_char": 10174, "source": "regex", "metadata": {"statute": null}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 10355, "end_char": 10370, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 3 to 7", "label": "PROVISION", "start_char": 10610, "end_char": 10620, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 8, 9 & 10", "label": "PROVISION", "start_char": 10638, "end_char": 10651, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 10736, "end_char": 10740, "source": "regex", "metadata": {"statute": null}}, {"text": "26th January, 1950", "label": "DATE", "start_char": 10891, "end_char": 10909, "source": "ner", "metadata": {"in_sentence": "By s. 9 it was enacted that :\n\n\"(1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires or has at any time between the 26th January, 1950 and the commencement of this Act voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India : USup./6S-11\n\nSUPREME COUB.T REPORTS\n\n[1965] 2 S.C.R.\n\n\"Provided that nothing in this sub-section shall A apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs."}}, {"text": "s. 18", "label": "PROVISION", "start_char": 11657, "end_char": 11662, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18(1)", "label": "PROVISION", "start_char": 11972, "end_char": 11980, "source": "regex", "metadata": {"statute": null}}, {"text": "Citizenship Rules, 1956", "label": "STATUTE", "start_char": 11985, "end_char": 12008, "source": "regex", "metadata": {}}, {"text": "July 7, 1956", "label": "DATE", "start_char": 12075, "end_char": 12087, "source": "ner", "metadata": {"in_sentence": "In exercise of the authority under s. 18(1) the Citizenship Rules, 1956 were framed by the Central Government and they came into force on July 7, 1956."}}, {"text": "section 9", "label": "PROVISION", "start_char": 12306, "end_char": 12315, "source": "regex", "metadata": {"linked_statute_text": "the Citizenship Rules, 1956", "statute": "the Citizenship Rules, 1956"}}, {"text": "Schedule ID", "label": "PROVISION", "start_char": 12472, "end_char": 12483, "source": "regex", "metadata": {"linked_statute_text": "the Citizenship Rules, 1956", "statute": "the Citizenship Rules, 1956"}}, {"text": "Arts. 5, 6 and 7", "label": "PROVISION", "start_char": 13680, "end_char": 13696, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 13825, "end_char": 13831, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 13891, "end_char": 13897, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 8", "label": "PROVISION", "start_char": 13901, "end_char": 13907, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 10", "label": "PROVISION", "start_char": 13909, "end_char": 13919, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 11", "label": "PROVISION", "start_char": 14256, "end_char": 14263, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 14283, "end_char": 14287, "source": "regex", "metadata": {"statute": null}}, {"text": "Citizenship Act, 1955", "label": "STATUTE", "start_char": 14295, "end_char": 14316, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "January 26, 1950", "label": "DATE", "start_char": 14445, "end_char": 14461, "source": "ner", "metadata": {"in_sentence": "The Parliament by s. 9 of the Citizenship Act, 1955 legislated in regard to determination of citizenship and provided, inter alia, that a person who has voluntarily acquired since January 26, 1950 or acquires lifter the commencement of the Act citizenship of another country, shall cease to be a citizen of India, and that if any question arises as to whether citizenship E of another country has been acquired by a person, the question must be determined by the authority, in such manner and having regard to such rules of evidence."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 14924, "end_char": 14928, "source": "regex", "metadata": {"linked_statute_text": "the Citizenship Act, 1955", "statute": "the Citizenship Act, 1955"}}, {"text": "Citizenship Act, 1955", "label": "STATUTE", "start_char": 14936, "end_char": 14957, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Rules framed under the Citizenship Act, 1955", "label": "STATUTE", "start_char": 15073, "end_char": 15117, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ram Reddy", "label": "OTHER_PERSON", "start_char": 15142, "end_char": 15151, "source": "ner", "metadata": {"in_sentence": "Mr. Ram Reddy for the appellant contended that as certain important aspects of the plea of invalidity were not presented before the G C'-0urt at the hearing of !"}}, {"text": "Viar Ahmad Khan", "label": "OTHER_PERSON", "start_char": 15299, "end_char": 15314, "source": "ner", "metadata": {"in_sentence": "Viar Ahmad Khan's case('), we shoulcl again proceed to consider the challenge to the validity of Rule 3 of Sch."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 15419, "end_char": 15423, "source": "regex", "metadata": {"linked_statute_text": "the Rules framed under the Citizenship Act, 1955", "statute": "the Rules framed under the Citizenship Act, 1955"}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 15431, "end_char": 15446, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "lzhar Ahmad Khan", "label": "OTHER_PERSON", "start_char": 15598, "end_char": 15614, "source": "ner", "metadata": {"in_sentence": "This Court has held on the arguments presented before the Court in lzhar Ahmad Khan's case(') that s. 9 of the Act was validly H enacted by the Parliament.", "canonical_name": "lzhar Ahmad Khan"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 15630, "end_char": 15634, "source": "regex", "metadata": {"linked_statute_text": "the Rules framed under the Citizenship Act, 1955", "statute": "the Rules framed under the Citizenship Act, 1955"}}, {"text": "s. 18", "label": "PROVISION", "start_char": 15879, "end_char": 15884, "source": "regex", "metadata": {"linked_statute_text": "the Rules framed under the Citizenship Act, 1955", "statute": "the Rules framed under the Citizenship Act, 1955"}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 15892, "end_char": 15907, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Izhar Ahmad Khan", "label": "OTHER_PERSON", "start_char": 16127, "end_char": 16143, "source": "ner", "metadata": {"in_sentence": "It may be pointed out that the judgment of the Court in Izhar Ahmad Khan's case(') was followed by this Court in the Government of Andhra Pradesh v. Syed Mohd.", "canonical_name": "lzhar Ahmad Khan"}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 16443, "end_char": 16450, "source": "regex", "metadata": {"statute": null}}, {"text": "Union c of India", "label": "PETITIONER", "start_char": 16618, "end_char": 16634, "source": "ner", "metadata": {"in_sentence": "In the petition as originally filed, the Union c of India was not impleaded as a party-respondent and on the state of authorities then in force the appellant could not implead the Union of India as a party-respondent to the petition filed by him in the High Court of Madras."}}, {"text": "Union of India", "label": "ORG", "start_char": 16757, "end_char": 16771, "source": "ner", "metadata": {"in_sentence": "In the petition as originally filed, the Union c of India was not impleaded as a party-respondent and on the state of authorities then in force the appellant could not implead the Union of India as a party-respondent to the petition filed by him in the High Court of Madras."}}, {"text": "December 7, 1964", "label": "DATE", "start_char": 16882, "end_char": 16898, "source": "ner", "metadata": {"in_sentence": "When this appeal was heard on December 7, 1964."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 16985, "end_char": 16989, "source": "regex", "metadata": {"statute": null}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 17005, "end_char": 17020, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ministry of Home Affairs", "label": "ORG", "start_char": 17202, "end_char": 17226, "source": "ner", "metadata": {"in_sentence": "Pursuant to the direction the relevant proceedings and order have been produced and an affidavit has been filed by the Under Secretary in the Ministry of Home Affairs."}}, {"text": "Section 9", "label": "PROVISION", "start_char": 17478, "end_char": 17487, "source": "regex", "metadata": {"statute": null}}, {"text": "Citizenship Act", "label": "STATUTE", "start_char": 17501, "end_char": 17516, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 9", "label": "PROVISION", "start_char": 22054, "end_char": 22058, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 22154, "end_char": 22158, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 22560, "end_char": 22564, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 22958, "end_char": 22965, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_2_894_907_EN", "year": 1965, "text": "MANGALDAS RAGHA vn RUPAREL & ANR.\n\nA v.\n\nTHE STATE OF MAHARASHTRA & ANR.\n\nFebruary 8, 1965\n\n[K. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH,\n\nJ. R. MUDHOLKAR AND S. M. SIKRI, JI.]\n\nPrevention of Food Adulteration Act (37 of 19S4) a. 2(zUl), 7(11), 10, 11, 13(S), 16(1) (a) and 19(1)-Public Analyst-Report of-If Su/Ii clent for conviction when analyst not ezamined-Mens rea-If prosecution should establish-Compulsory sale of sample to Food Inspector-If \"sale\" under Act.\n\nThe three appellants were a wholesale dealer in spices, a dealer In groceries, and his servant respectively.\n\nThe second appellant purchuecl a bag of turmeric powder from the first and the third. appellant took delivery of it on behalf of the second appellant, his master. Immediately after it was taken delivery of, the food inspector purchased from the third appellant some turmeric powder contained in that bag for the purpose of analysis, and after issuing notice to the third appellant as required by s. 11 of the Preven tion of Food Adulteration Act, 1954, sent a portion of the p0wder purchased to the public analyst, who gave a report that it was adulterated food. Tbo three appellants were then prosecuted under ss. 6(1)(a) read withs. 7(v) of the Act and convicted by the Magistrate. The conviction was confirmed\n\nby the High Court. In the appeal to this Court it was contended that, (i) the report of the public analyst, by itself was not sufllcient ID sustain the conviction, and the public analyst should have been called as a witness, (ii) the report of the public analyst could not be uaed as evidence against a person who was not given notice under s. 11 of the Act, (iii) the first appellant could not be convicted without establishing that he had the mens rea, and (iv) the taking of the sample under s. 10 by a food inspector, was not a \"sale\" within the meaning of s. 2(xiii) and therefore s. 7(v) of the Act was not infringed.\n\nHELD: (i) Section 13(5) of the Act, makes the report of the public analyst admissible in evidence and a Court of fact is free to act on it or not, as it thinks fit. The Court could therefore legally act solely on the l>a&is of the report and the prosecution c0uld not fail on the ground that the public analyst was not called as a witness. If the appellant wanted the analyst to be examined, it was for the appellant to take appropriate atepe.\n\n[900 F; 902 C-D]\n\n(ii) The law requires notice under s. 11 to be given only ID the person from whom the sample was taken and none else. If that formality had been complied with and the report of the analyst is placed on record at the trial, it would be admissible against all the accused persons. [902 H; G\n\n903 CJ\n\n(iii) The word \"vendor\" in s. 19(1) means the person who had lold the article of food which was alleged to be adulterated. At one stage, the first appellant was the vendor of the turmeric powder. Since the section deprives the vendor of adulterated food of the defence of merely illleging that he was ignorant of the nature, substance or quality of the article of food sold by him, the burden of showing that he had no me111 rea ID H commit the offence would be upon the first appellant. {904 B-D]\n\nState of Maharashtra v. Mayer Hans George, [1965] 1 S.C.R., 123 fol lowed.\n\n(iv) The definition of \"sale\" in s. 2(xiii) of the Act, apecifically includes within its ambit a sale for analysis. The transaction in the instant case would amount to sale inspite of the fact that where a person is iequired by the food inspector to sell him a sample of a commodity, there\n\nis an element of compulsion under s. 10 of the Act. [906 HJ\n\n\nFood Inspector v. Parameswaran, [1962] 1 Cr. L.J. 652, overmled.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 113 of 1963.\n\nAppeals by special leave from the judgment and order dated C April 19, 1963, of the Bombay High Court in Criminal Appeal No. 988 of 1962.\n\nV. B. Ganatra and /. N. Shroff, for the appellant (Cr. A. No. 57 of 1963).\n\nD Frank Anthony, E. C. Agarwala and P. C. Agrawal, for the appellant (in Cr. A. No. 113 of 1963 ).\n\nS. G. Patwardhan and B. R. G. K. Achar, for the respondent -State (in both the appeals).\n\nThe Judgment of the Court was delivered by :\n\nMndholkar, J. This appeal and Criminal appeal No. 113/63 arise out of a joint trial of the appellant Mangaldas and the two appellants Daryanomal and Kodumal in Cr!. A. 113 of 1963 for the contravention of s. 7 ( v) of The Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) in which F they were convicted and sentenced under s. 16(1 )(a) of the Act.\n\nThe appellants Mangaldas and Daryanomal were each sentenced under s. 16(l)(a)(ii) of the Act to undergo rigorous in1prisonment for six months and to pay a fine of Rs. 500 while the other appellant was sentenced under sub-cl ( i) to undergo imprisonment until the rising of the Court and to pay a fine of Rs. 200. On anneal G they were all acquitted by the Additional Sessions Judge, Nasik.\n\nThe State preferred an appeal before the High Court of Bombay which allowed it and restored the sentences passed on 't.fangaldas and Daryanomal by the Judicial Magistrate but imposed only a fine of Rs. 200 on Kodumal. They have come up to this Court by special leave.\n\nThe admitted facts are these. Mangaldas is a wholesale dealer, Commission agent, exporter, supplier and manufacturer of various kinds of spices doing business at Bombay. Dayanomal is engaged\n\n896 SUPllBMB COURT REPORTS\n\n[1965) 2 S.C.R.\n\nin grocery business at Nasik while Kodumal is his servant. On A November 7, 1960 Daryanomal purchased from Mangaldas a bag of haldi (turmeric powder) weighing 7 5 kg. which was despatched by the latter through a public carrier. It was received on behalf of Daryanomal at 11.45 A.M. on November 18, 1960 by Kodumal at the octroi post of Nasik Municipality. After he paid the octroi duty to the Nasik Municipality and took delivery of the bag the B Food Inspector Burud purchased from him 12 oz. of turmeric powder contained in that bag for the purpose of analysis. The procedure in this regard which is laid down in s. 11 of the Act was followed by Burud. A portion of the turmeric powder was sent to the Public Analyst at Poona, whose report Ex. 16, shows that the turmeric powder was adulterated food within the meaning of C s. 2 ( i) of the Act. Thereupon Burud, after obtaining the sanction of the Officer of Health of the Municipality, filed •a complaint against the appellants in the court of the Judicial Magistrate for offences under s. 16(1) (a) read withs. 7(v) of the Act. At the trial Kodumal admitted that he had taken delivery of the bag at 0 the octroi post and sold 12 oz. of turmeric powder to the Food Inspector and that he had also received a notice from him under s. 11 of the Act. It was contended at the trial on behalf of Daryanomal that actually no delivery had been taken but that point was not pressed before the High Court.\n\nWhile Mangaldas admitted that he had sold and despatched the bag containing turmeric E powder he contended that what was sent was not turmeric powder used for human consumption but was \"Bhandara\" which is used for religious purposes or for applying to the forehead. This contention was rejected by the Judicial Magistrate as well as by the High Court but was not considered by the Additional Sessions Judge. It was sought to be challenged before us by Mr. Ganatra on his F behalf but as the finding of the High Court on the point is upon a question of fact we did not permit him to challenge it.\n\nWe will take Mangaldas's case first. Mr. Ganatra had made an application on his behalf for raising a number of new pointi, including some alleged to raise constitutional questions.\n\nAt the hearing, however, he did not seek to urge any question involving G the interpretation of the Constitution. The new points which he sought to urge were : ( 1) that the appellant was not questioned regarding the report of the Public Analyst;\n\n(2) the joint trial of Mangaldas with the otlter two appel- H !ants was illegal; and ( 3) that the sanction was not valid.\n\nA As regards the first of these points his contention is that he had raised it before the High Court also though it has not referred to in its judgment. The High Court has stated clearly that all the points raised in argument before it were considered by. it. In the face of this statement we cannot allow the point to be urged before us.\n\nB As regards the second point it is sufficient to say that it was not raised before the Magistrate.\n\nSection 537 (b) of the Code of Criminal Procedure provides that no judgment, conviction or sentence can be held to be vitiated by reason of misjoinder of parties unless prejudice has resulted to the accused thereby. For c determining whether failure of justice has resulted the Court is\n\nrequired by the Explanation to s. 537 to have regard to the fact that the objection had not been raised at the trial. Unless it is so raised it would be legitimate to presume that the accused apprehended no prejudice. The point thus fails.\n\nAs regards the alleged invalidity of sanction it is sufficient to D point out that the contention was not raised in the High Court or earlier. We, therefore, decline to consider it.\n\nMr. Gar.atra urged that the trial court had no jurisdiction to try the appellant as the appellant had not committed any offence within its jurisdiction. With regard to this point the High Court E has held that Mangaldas had distributed the commodity within the jurisdiction of the Magistrate and, therefore, the Magistrate had jurisdiction to try him. Apart from that we may point out that under s. 182 of the Code of Criminal Procedure where it is unoertain in which of the local areas an offence was committed or where the offence is committed partly in one local area and partly F in another or where an offence is a continuing one and continues to be committed in more local areas than one or where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.\n\nSince Mangaldas actually sent the bag from Bombay to Nasik he oould be said to have committed the offence partly-in Bombay G from where it was despatched and partly in Nasik to which place it had been consigned. Apart from that, the mere fact that proceeding<; were taken in a wrong place would not vitiate the trial unless it appears that this has occasioned a failure of justice (see s. 531, Cr. P. C.). Mr. Ganatra, however, says that there was H failure of justice in this case because had Mangaldas been prosecuted at Bombay, one of the samples taken from the bag of turmeric powder would have been sent to the Public Analyst at Bombay and not to the Public Analyst at Poona. We are wholly\n\nSUPREME COURT REPORTS\n\n(1965] 2 S.C.R.\n\nunable to appreciate how this could make any difference what- A soever. Apart from that since the samples were actually taken at\n\nNaslk the one meant for analysis had, according to an administrative order o[ the Government, to be sent to the Public Analyst at Poona. Therefore, even if Mangaldas had been tried at Bombay the report oi the Public Analyst at Poona could be put in evidence.\n\nThere is nothing .in the Act which prevents that from being done.\n\nIn view of the fact tat the f.nding of the Judicial Magistrate and the High Court th\"t the turmeric powder had been adulterated was based soiely on the report of the Public Analyst, Mr. Ganatra r;1ised three contentions before us. One is that such evidence is not by itself sufficient for the conviction of an accused person; the C second is that the Pubiic Analyst was not called as a witness in the case and the third is that unless notice is given to an accused person under s. 11 of the Act after a sample had been taken of the allegedly adulterated commodity the report of the Public Analyst concerning that commodity is not admissible against him.\n\nIn support of the contention that the conviction could not be based solely npon the report of the Public Analyst that the turmeric powder was adulterated.\n\nMr. Ga.TJatra relied upon the decisions in State v. Bhausa lianmatsa Pawar(') and City Corporation Trivandrum v. Antony('). The first of these is a case under\n\nthe Bombay Prohibition Act, 1949 (Bombay XXV of 1949). In E that case a large quantity of angurasava, partly contained in two barrels and partly in three boxes containing 109 bottles was recovered from the house of the accused person .. Samples taken from tbe ban-els and boxe3 were sent for analysis to the Chemical Analyser and to the Principal, Podar Medical College, Bombay.\n\nThe report of the former showed that three out of the four samples F\n\ncontined alcohol in varying degrees. Thereupon the accused was prosecuted for offences under ss. 65, 66(b) and 83(1) of the Bombay Prohib'tion Act. His defence was that he manufactured a medicinal preparation called angurasav,: which contained Ayurvedic ingredients which generated alcohol. According to him, therefore, whe.t was seized from him was outside the orbit of the Bombay G Prohibition Act. Partly relying upon the certificate issued bv the Principal of Podar Medical College, the trying Magistrate acquitted the accused holding that the prosecution failed to discharge the onus of proof that angurasava was prohibited liquor. On appeal . by the State of Maharashtra before the High Court reliance was placed upon the certificates issued by the Chemical Analyser as H well as by the Principal, Podar Medical College. The certificate of\n\n(I) [1962] Born. L.R. 303.\n\n(2) l.L.R. [1962] I Kerala 430.\n\nA thC former showed that three out of the four samples contained\n\n\"2.2 and 6 per cent v /v of ethyl alcohol respectively and they\n\ncontain yeast No alkoloidal ingredient or metallic poison was detected in them. The certificate of the Principal of the Podar Medical College is as follows :\n\n\"Formula supplied is found to be similar to that given in the Ayurvedic Books. There are no easy methods to find out the herbal drugs dissolved in a liquid.\n\nIt is not possible for us, to find out the herbal drugs use:! in the above liquids. The colour and smell of the samples supplied is not identical with the colour and smell of fermented Ayurvcdic preparation like, Assav and Arishta. Hence it is very difficult to give any definite opinion in the matter.\"\n\nOn behalf of the accused it was urged that by virtue of sub-s. (ii) of s. 24(a) of the Prohibition Act, the provisions of ss. 12 and D 13 thereof do not apply to any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor. Section 12 of the Act prohibits the manufacture and possession of liquor and s. 16 prohibits the possession of materials for the manufacture of liquor. It was, however, contended on behalf of the State that once it is established that what was seized from the possession of E the accused contains alcohol the burden of proving that what was\n\nseized falls under s. 24 (a) was on the accused person. The High Court, however, held that the burden of establishing that a par\" ticular article does not fall under s. 24(a) rests on the prosecution. In so far as the certificate of the Chemical Analysu WBll\n\nconcerned the High Court observed as follows :\n\n\"It is beyond controversy that, normally, in order that a certificate could be received in evidence, the person who has issued the certificate must be called and examined as a witness before the Court. A certificate is nothing more than a mere opinion of the person who purports to have issued the certificate, and opinion is not evidence until the person who has given the particular opinion is brought before the Court and is subjected to the test of cross-examination.\"\n\nIt will thm be clear that the High Court did not hold that the\n\ncertificate was by itself insufficient in Jaw l:o sustain the convic- H tion and indeed it could not well have said so in view of the provisions of s. 510, Cr.P.C. What the High Court seems to have felt was that in circumstances like those present in the case\n\n900 SUPlll!MB COURT REPORTS\n\n[J 965] 2 S.C.R.\n\nbefore it, a court may be justified in not acting upon a certificate of A the Chemical Analyser unless that person was examined as a witness in the case. Sub-section ( l ) of s. 510 permits the use of the certificate of a Chemical Examiner as evidence in any enquiry or trial or other proceeding under the Code and sub-s. (2) thereof empowers the court to summon and examine the Chemical Examiner if it thinks fit and requires it to examine him as a wit- B ness upon an application either by the prosecution or the accused in this regard. It would, therefore, not be correct to say that where the provisions of sub-s. (2) of s. 510 have not been availed of, the report of a Chemical Examiner is rendered inadmissible or is even to be treated as having no weight. Whatever that may C be, we are concerned in this case not with the report of a Chemical Examiner but With that of a Public Analyst. In so far as the report of the Public Analyst is concerned we have the provisions of s. 13 of the Act. Sub-section ( 5) of that Section provides as follows:\n\n\"Any document purporting to be a report signed by a public analyst, unless it has been superswed under sub-section ( 3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code :\n\nProvided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein.\"\n\nThis provision clearly makes tho report admissible in evidence.\n\nWhat value is to be attached to such report must necessarily be for the Court of fact which has to consider it. Sub-section ( 2) of s. 13 gives an opportunity to the accused vendor or the complainant on payment of the prescribed fee to make an application to the court for sending a sample of the allegedly adulterated commodity G taken under s. 11 of the Act to the Director of Central Food Laboratory for a certificate. The certificate issued by the Director would then supersede the report given by the Public Analyst.\n\nThis certificate is not only made admissible in evidence under subs. ( 5) but is given finality of the facts contained therein by the proviso to that sub-section. It is true that the certificate of the H Public Analyst is not made conclusive but this only means that tho court of fact is free to act on the certificate or not, as it thinks fit.\n\nSub-section ( 5) of s. 13 of the Act came for consideration in Antorry's case(') upon which the State relied. There the question was whether a sample of buffalo's milk taken by the Food Inspector was adulterated or not. The Public Analyst to whom it was sent submitted the following report :\n\n\"I further certify that I have analysed the aforemen tioned sample and declare the result of my analysis to be as follows: Solids-not-fat 9.00 per cent..\n\nFat 5.4 per cent.. c Pressing point\n\n(Hortvet's method) o.49°c\n\nand am of the opinion that the said sample contains not\n\nless than seven per cent (7%) of added water as calculated from the freezing point (Hortvet's method) and is therefore adulterated.\"\n\nThe Magistrate who tried the accused persons acquitted them on:\n\nthe ground that it was not established that the milk was adulterated. Before the High Court it was contended that the certificate was sufficient to prove that water had been added to the milk and reliance was placed upon the provisions of s. 13 ( 5) of the Act.\n\nE The learned Judge who heard the appeal observed that this provision only says that the certificate may be used as evidence but does not say anything as to the weight to be attached to the report. The learned Judge then proceeded to point out what according to him should be the contents of such report and said:\n\nF \"In this case the court is not told what the Hortvet's test is, what is the freezing point of pure milk and how the calculation has been made to find out whether water has been added. I cannot, therefore, say that the Magistrate was bound to be satisfied on a certificate of this kind, which contains only a reference to some test G and a finding that water has been added. . The prosecution could have examined the Analyst as a witness on their side. The learned Magistrate also could very well have summoned and examined the Public Analyst, but whatever that might be, I am not prepared to say 'hat the finding of the Magistrate that the case has not been .\n\nH satisfactorily proved is one which could not reasonably have been reached by the learned Magistrate and\n\n(1) I.L.R. (1962] 1 Kcrala 430.\n\nSUPREME COURT .REPORTS\n\n[1965) 2 S.C.R.\n\nthat the acquittal is wrong and calls for interference.\" A (p. 436)\n\nAll that we wuuid like to say is that it should not have been diflicult for the learned Judge to satisfy himself by reference to standard books as to what Hortvet's method is and what the freezing point of milk is. We fail to see the necessity of stating B in the report as to how the calculations have been made by the Public Analyst. Apart from that it is clear that this decision does not support the contention of learned counsel that a court of fact could not legally act soleiy on the basis of the re.port oi the Public Analyst.\n\nAs regards the failure to examine the Public Analyst as a 'vitness in the . case no blame can be laid on the prosecution. The report of the Public Analyst was there rnd if either the court or the appellant wanted him to be examined as a witness appropriate steps would have been taken. The prosecution cannot fail solely\n\non the ground that the Public Analyst had not been called in the 0 .case. Mr. Ganatra then contended that the report does not contain adequate data. We have seen the report for ourselves and quite apart from the fact that it was not chlenged by any of the appellants as inadequate when it was put into evidence, we are satisfied that it contains the necessary data in support of the conclmion that the sample of turmeric powder examined by him E showed adulteration. The report sets out the result of the analysis and of the tests performed in the public he.alth laboratory.\n\nTwo out of the three tests Rnd the microscopic examination revealed adulteration of the turmeric powder.\n\nThe microscopic examination showed the pre-ence of ; iollen talks. This could well be regarded as adequate to s.atisfy the mind of a Judge or F Magistrate dealing with the facts.\n\nMr. Ganatra then s.1id that the report shows that the analysis was not made by the Public Analyst himself but by someone else. What the report says is \"I further certify that I have caused to be analysed the aforementioned sample and declare the result of the analvsis to be 3i follows.\" This would show that what was done as done under G the supervision of the Public Analvst and that should be reP.arded\n\nas quiie sufficient. - •\n\nNow as to the necessity of notice under s. 11 f the A ct.\n\nMr. Ganatra said that the report is admissible only against a person to whom notice is given under s. 11 (I)( a) by the Fo'.)d\n\nJnsaector, that the obiect of taking the samf)le was to have. it H anilysed. The law requir~ notice to be given only to the person from whom the sample is taken and to none else. The ol> ect of\n\nA this provision is clearly to apprise the peraon from whom the sample is taken of the intention of the Food Inspector so that he may know that he will have the right to obtain from the Food Inspector a part of the commodity taken by way of sample by the Food Inspector. This is with a view to prevent a plea from being raised that the sample sent to the analyst was of a commodity B difierent from the one from which the Food Inspector has taken\n\na sample. What bearing this provision has on the admissibility of the evidence of the Public Analyst is difficult to appreciate.\n\nOnce the report of the Analyst is placed on record at the trial it is adulissible against all the accused persons. What it shows in the present case is that the commodity of which Kodumal had C taken possession contained turmeric powder which was adulterated. Therefore, since it is admitted and also established that the bag of turmeric powder from which sample was taken had been despatched by the appellant Mangaldas, the report of the Public Analyst could be properly used against him in regard to the D quality or composition of the commodity.\n\nMr. Ganatra then said that it was necessary to establish that the appellant had the mens rea to commit the offence. In support of his contention Mr. Ganatra pointed out that s. 19 ( 1) of the Act deprives only the vendor of the right to contend that he was ignorant of the nature, substance or quality of the food sold E by him and not a person in Mangaldas's position. According to him, the word vendor here means the person from whom the sample was actually taken by the Food Inspector. We cannot accept the contention. The word \"Vendor\", though not defined in the Act, would obviously mean the person who had sold the article of food which is alleged to be adulterated. Mangaldas F having sold the bag to Daryanomal, was the original vendor and, therefore, though the sample was taken from Kodumal he will equally be barred from saying that he was not aware of the nature, substance or quality of the turmeric powder in question.\n\nMoreover, it is curious that a person who sought to get out by saying that what he had actually sent was not an article of food G but something else should now want to say that he did not know that though it was an article of food it was adulterated.\n\nWe may now refer to two decisions upon which learned counsel relied in support of his contention. The first is Municipal Board, Bareilly v. Ram Gopal (1). There the question was whether a H shopkeeper who allowed the owner of adulterated ghee to sell on his premises was entitled to say in defence that he was ignorant of\n\n(1) 42 Crr. LJ. 243.\n\nUSup./6S-12\n\n!104 SUPl!.BMB COURT REPORTS\n\n(1965} 2 S.C.R.\n\nthe quality of ghee which its owner was offering for sale. It was A held by the Allahabad High Court that he was so entitled. We fail to appreciate how this case is of any assistance in the matter before us. For, here, the tunneric powder admittedly once belonged to Mangaldas and was in fact sold by him to Daryanomal. At one stage, therefore, Mangaldas was the vendor of the tunneric powder and, therefore, falls squarely within the provisions of s. 13 B\n\n(1) of the Act. The second case is Ravula Hariprasada Rao v.\n\nThe State('). What was held in that case is that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of the crime, a person should not be found guilty of an offence against the criminal law unless he has got a guilty mind.\n\nThe proposition there stated is well-established. Here s. 19 ( 1) of C the Act clearly deprives the vendor of the defence of merely alleging that he was ignorant of the nature, substance or quality of the article of food sold by him and this places upon him the burden of showing that he had no mens rea to commit an offence under s. 17 ( 1) of the Act. In a recent case-State of Maharashtra v. Mayer Hans George( 2 )-this Court had to consider the D necessity of proving mens rea in regard to an offence under s. 23\n\n(1) (a) of the Foreign Exchange Regulation Act (7 of 1947) read with a notification dated November 8, 1962 of the Reserve Bank of India. The majority of Judges constituting the Bench held that on the language of s. 8 ( 1) read with s. 24 ( 1) of the above E Act, the burden was upon the accused of proving that he had the requisite pennission of the Reserve Bank of India to bring gold into India and that there was no scope for the invocation of the rule that besides the mere act of voluntarily bringing gold into India any further mental condition or mens rea is postulated as necessary to constitute an offence referred to in s. 23(1-A) of the above F Act. We are, therefore, unable to accept the contention of learned counsel.\n\nThe 'only other point which falls for consideration is the one raised by Mr. Anthony in the other appeal. Mr. Ganatra did not address any separate argument on this point but he adopted what was said by Mr. Anthony. That point is whether the transaction G in question i.e., taking of a sample by a Food Inspector under s. 11 amounts to a \"sale\" and, therefore, whether the person connected with the transaction could be said to have infringed s. 7(v) of the Act. Mr. Anthony's contention is that for a transaction to be a sale it must be consensual sale. Where a person is required by the Food Inspector to sell to him a sample of a commodity H there is an element of compulsion and, therefore, it cannot be\n\n(I) (19SI] S.C.R. 322.\n\n(2) [196S] I S.C.R. 123.\n\nM. RAGHAVJl v. &TATE (Mudholkar, J.) 905\n\nA regarded as sale. In support of the contention he has placed\n\nreliance upon the decision in Food Inspector v. Parameswaran(1 ) Raman Nayar J., who decided the case has observed therein:\n\n\"As a sale is voluntary .transaction and (sic) a seizure or compulsory acquisition in exercise of statutory power is not a sale within the ordinary sense of that word. Nor does the definition of 'sale' in s. 2(xiii) as including a sale of good for analysis make it one, for, the first requisite even under the definition is that there must be a sale. The definition apparently by way of abundant caution, merely states that the word 'sale' means all manner of sales of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis; and all that the definition means in relation to the question we are considering is that a sale of food is nonetheless a sale, by reason of the fact that it was not for consumption or use, but only for analysis.\n\nIn my view when a food inspector obtains a sample under s. 10 of the Act there is no sale. Of course, it is possible for a Food Inspector just like any other human being to effect a purchase in the ordinary course, and the transaction would be a sale notwithstanding that the purchaser is a Food Inspector and that his purpose is to have the article analysed with a view to prosecution.\n\nBut, if he obtains the article not by a voluntary exchange for a price but in exercise of his statutory power under s. 10 of the Act the transaction is not a sale notwithstanding that in obedience to sub-s. (3) of s. 10 its cost -and I think the sub-section advisedly uses the long phrase, 'its cost calculated at the rate at which the article is usually sold to the public' instead of the word 'price' is paid to the person from whom the sample is taken.\"\n\nIn Sarjoo Prasad v. The State of Uttar Pradesh('); M. V. Joshi\n\nv. M. U. Shimpi(') and The State of Uttar Pradesh v. Kartar Singh(<) this Court has treated a transaction of the kind we have here as a sale. No doubt, no argument was addressed in any of these cases before this Court similar to the one advanced by Mr.\n\nAnthony in this case and as advanced in Parameswaran's case(1 ).\n\n(1) [1962] 1 Crl. L.J. 1S2.\n\n\n906 SUPlll!MB COURT lll!PORTS\n\n\nA view contrary to the one taken in Parameswaran's case(') A was taken in State v. Amritlal Bhogilal(2 ) and Public Prosecutor\n\nv. Dada Raji Ebrahim H elari ( 8). In both these cases the sale was to a sanitary inspector who had purchased the commodity from the vendor for the purpose of analysis. It was contendCl; d in these cases that the transaction was not of a voluntary nature and, therefore, did not amount to a sale. This contention was rejected.\n\nB In Amritlal Bhogilal's case(2 ) the learned Judges held:\n\n\"There is also no reason why in such a case the article should not be held to have been sold to the inspector within the meaning of s. 4 ( 1 )(a). He has paid for the article purchased by him like any other customer. c Moreover, s. 11 itself uses the words \"purchase' and 'sell' in regard to the inspector's obtaining an article for the purpose of analysis and paying the price for it.\n\nIt is, therefore, clear that the Legislature wanted such a transaction to be regarded as a sale for the purposes of the Act.\" (p. 463) D\n\nThe learned Judges in taking this view relied upon several reported decisions of that Court. In Dada Hajj Ebrahim Helari's case(8 ) which was under the Madras Prevention of Adulteration Act, (3 of 1918) Ramaswarni J., dissented from the view taken by Horwill J., in In re Ballamkonda Kankayya(') and following the E decisions in Public Prosecutor v. Narayan Singh(') and Public Prosecutor v.\n\nRamachandrayya(8 ) held the transaction by which a sample of an article of food was obtained by a sanitary inspector from the vendor amounts to a sale even though that man was bound to give the sample on tender of the price thereof. But Mr. Anthony contends that a contract must be F consensual and that this implies that both the parties to it must act voluntarily. No doubt a contract comes into existence by the acceptance of a proposal made by one person to another by that other person. That other person is not bound to accept the proposal but it may not necessarily follow that where that other person had no choice but to accept the proposal the transaction G would never amount to a contract; Apart from this we need not, however, consider this argument because throughout the case was argued on, the footing that the transaction was a 'sale'. That was evidently liCcause here we have a special definition of \"sale\" in s. 2 (xiii) of the Act which specifically includes within its ambit a\n\nc1> [1962) 1 Cr!. L. J. ua\n\n(3) A.J.R. 1953 Mad. 241. (S) 19-44 M. W.N. Crl. 131.\n\n(2) LLR. 1954 Bom. 4!9.\n\n(4) A.1.R. 1942 Mad 609.\n\n(6) 1948 M.W.N' Crl. 31\n\nA sale for analysis. It is, therefore, difficult to appreciate the reasons which led Raman Nayar J ., to hold that a transaction like the present does not amount to a sale. We arc, therefore, unable to accept that view. In the result we uphold the conviction and ilentence passed on each of the appellants and dismiss these appeals.\n\nB Appeals dismissed.", "total_entities": 121, "entities": [{"text": "MANGALDAS RAGHA vn RUPAREL & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "MANGALDAS RAGHAVJI RUPAREL & ANR", "offset_not_found": false}}, {"text": "THE STATE OF MAHARASHTRA & ANR", "label": "RESPONDENT", "start_char": 41, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF MAHARASHTRA & ANR", "offset_not_found": false}}, {"text": "February 8, 1965", "label": "DATE", "start_char": 74, "end_char": 90, "source": "ner", "metadata": {"in_sentence": "February 8, 1965\n\n[K. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH,\n\nJ. R. MUDHOLKAR AND S. M. SIKRI, JI.]"}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 93, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "K.N. 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Shroff", "label": "LAWYER", "start_char": 3898, "end_char": 3907, "source": "ner", "metadata": {"in_sentence": "V. B. Ganatra and /. N. Shroff, for the appellant (Cr."}}, {"text": "D Frank Anthony", "label": "LAWYER", "start_char": 3953, "end_char": 3968, "source": "ner", "metadata": {"in_sentence": "D Frank Anthony, E. C. Agarwala and P. C. Agrawal, for the appellant (in Cr."}}, {"text": "E. C. Agarwala", "label": "LAWYER", "start_char": 3970, "end_char": 3984, "source": "ner", "metadata": {"in_sentence": "D Frank Anthony, E. C. Agarwala and P. C. Agrawal, for the appellant (in Cr."}}, {"text": "P. C. Agrawal", "label": "LAWYER", "start_char": 3989, "end_char": 4002, "source": "ner", "metadata": {"in_sentence": "D Frank Anthony, E. C. Agarwala and P. C. Agrawal, for the appellant (in Cr."}}, {"text": "S. G. Patwardhan", "label": "LAWYER", "start_char": 4053, "end_char": 4069, "source": "ner", "metadata": {"in_sentence": "S. G. Patwardhan and B. R. G. K. Achar, for the respondent -State (in both the appeals)."}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 4074, "end_char": 4091, "source": "ner", "metadata": {"in_sentence": "S. G. Patwardhan and B. R. G. K. Achar, for the respondent -State (in both the appeals)."}}, {"text": "Mndholkar", "label": "JUDGE", "start_char": 4189, "end_char": 4198, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by :\n\nMndholkar, J. This appeal and Criminal appeal No."}}, {"text": "Mangaldas", "label": "PETITIONER", "start_char": 4290, "end_char": 4299, "source": "ner", "metadata": {"in_sentence": "113/63 arise out of a joint trial of the appellant Mangaldas and the two appellants Daryanomal and Kodumal in Cr!.", "canonical_name": "Mangaldas F"}}, {"text": "Daryanomal", "label": "PETITIONER", "start_char": 4323, "end_char": 4333, "source": "ner", "metadata": {"in_sentence": "113/63 arise out of a joint trial of the appellant Mangaldas and the two appellants Daryanomal and Kodumal in Cr!.", "canonical_name": "Daryanomal"}}, {"text": "Kodumal", "label": "PETITIONER", "start_char": 4338, "end_char": 4345, "source": "ner", "metadata": {"in_sentence": "113/63 arise out of a joint trial of the appellant Mangaldas and the two appellants Daryanomal and Kodumal in Cr!.", "canonical_name": "Kodumal"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 4394, "end_char": 4398, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Food Adulteration Act, 1954", "label": "STATUTE", "start_char": 4411, "end_char": 4452, "source": "regex", "metadata": {}}, {"text": "s. 16(1 )(a)", "label": "PROVISION", "start_char": 4541, "end_char": 4553, "source": "regex", "metadata": {"linked_statute_text": "The Prevention of Food Adulteration Act, 1954", "statute": "The Prevention of Food Adulteration Act, 1954"}}, {"text": "s. 16(l)(a)(ii)", "label": "PROVISION", "start_char": 4633, "end_char": 4648, "source": "regex", "metadata": {"linked_statute_text": "The Prevention of Food Adulteration Act, 1954", "statute": "The Prevention of Food Adulteration Act, 1954"}}, {"text": "Additional Sessions Judge, Nasik", "label": "COURT", "start_char": 4923, "end_char": 4955, "source": "ner", "metadata": {"in_sentence": "On anneal G they were all acquitted by the Additional Sessions Judge, Nasik."}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 4999, "end_char": 5019, "source": "ner", "metadata": {"in_sentence": "The State preferred an appeal before the High Court of Bombay which allowed it and restored the sentences passed on 't.fangaldas and Daryanomal by the Judicial Magistrate but imposed only a fine of Rs."}}, {"text": "t.fangaldas", "label": "OTHER_PERSON", "start_char": 5075, "end_char": 5086, "source": "ner", "metadata": {"in_sentence": "The State preferred an appeal before the High Court of Bombay which allowed it and restored the sentences passed on 't.fangaldas and Daryanomal by the Judicial Magistrate but imposed only a fine of Rs."}}, {"text": "Daryanomal", "label": "PETITIONER", "start_char": 5091, "end_char": 5101, "source": "ner", "metadata": {"in_sentence": "The State preferred an appeal before the High Court of Bombay which allowed it and restored the sentences passed on 't.fangaldas and Daryanomal by the Judicial Magistrate but imposed only a fine of Rs.", "canonical_name": "Daryanomal"}}, {"text": "Kodumal", "label": "PETITIONER", "start_char": 5167, "end_char": 5174, "source": "ner", "metadata": {"in_sentence": "200 on Kodumal.", "canonical_name": "Kodumal"}}, {"text": "Mangaldas", "label": "PETITIONER", "start_char": 5257, "end_char": 5266, "source": "ner", "metadata": {"in_sentence": "Mangaldas is a wholesale dealer, Commission agent, exporter, supplier and manufacturer of various kinds of spices doing business at Bombay.", "canonical_name": "Mangaldas F"}}, {"text": "Bombay", "label": "GPE", "start_char": 5389, "end_char": 5395, "source": "ner", "metadata": {"in_sentence": "Mangaldas is a wholesale dealer, Commission agent, exporter, supplier and manufacturer of various kinds of spices doing business at Bombay."}}, {"text": "Dayanomal", "label": "PETITIONER", "start_char": 5397, "end_char": 5406, "source": "ner", "metadata": {"in_sentence": "Dayanomal is engaged\n\n896 SUPllBMB COURT REPORTS\n\n[1965) 2 S.C.R.\n\nin grocery business at Nasik while Kodumal is his servant.", "canonical_name": "Daryanomal"}}, {"text": "Nasik", "label": "GPE", "start_char": 5487, "end_char": 5492, "source": "ner", "metadata": {"in_sentence": "Dayanomal is engaged\n\n896 SUPllBMB COURT REPORTS\n\n[1965) 2 S.C.R.\n\nin grocery business at Nasik while Kodumal is his servant."}}, {"text": "November 7, 1960", "label": "DATE", "start_char": 5528, "end_char": 5544, "source": "ner", "metadata": {"in_sentence": "On A November 7, 1960 Daryanomal purchased from Mangaldas a bag of haldi (turmeric powder) weighing 7 5 kg."}}, {"text": "November 18, 1960", "label": "DATE", "start_char": 5749, "end_char": 5766, "source": "ner", "metadata": {"in_sentence": "It was received on behalf of Daryanomal at 11.45 A.M. on November 18, 1960 by Kodumal at the octroi post of Nasik Municipality."}}, {"text": "Burud", "label": "OTHER_PERSON", "start_char": 5926, "end_char": 5931, "source": "ner", "metadata": {"in_sentence": "After he paid the octroi duty to the Nasik Municipality and took delivery of the bag the B Food Inspector Burud purchased from him 12 oz."}}, {"text": "s. 11", "label": "PROVISION", "start_char": 6079, "end_char": 6084, "source": "regex", "metadata": {"statute": null}}, {"text": "Poona", "label": "GPE", "start_char": 6186, "end_char": 6191, "source": "ner", "metadata": {"in_sentence": "A portion of the turmeric powder was sent to the Public Analyst at Poona, whose report Ex."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 6290, "end_char": 6294, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 6505, "end_char": 6513, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 6747, "end_char": 6752, "source": "regex", "metadata": {"statute": null}}, {"text": "Ganatra", "label": "OTHER_PERSON", "start_char": 7371, "end_char": 7378, "source": "ner", "metadata": {"in_sentence": "It was sought to be challenged before us by Mr. Ganatra on his F behalf but as the finding of the High Court on the point is upon a question of fact we did not permit him to challenge it."}}, {"text": "Section 537", "label": "PROVISION", "start_char": 8507, "end_char": 8518, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 8530, "end_char": 8556, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 537", "label": "PROVISION", "start_char": 8826, "end_char": 8832, "source": "regex", "metadata": {"statute": null}}, {"text": "Gar.atra", "label": "OTHER_PERSON", "start_char": 9223, "end_char": 9231, "source": "ner", "metadata": {"in_sentence": "Mr. Gar.atra urged that the trial court had no jurisdiction to try the appellant as the appellant had not committed any offence within its jurisdiction."}}, {"text": "s. 182", "label": "PROVISION", "start_char": 9615, "end_char": 9621, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 9629, "end_char": 9655, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 531", "label": "PROVISION", "start_char": 10462, "end_char": 10468, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 11747, "end_char": 11752, "source": "regex", "metadata": {"statute": null}}, {"text": "Ga.", "label": "OTHER_PERSON", "start_char": 12084, "end_char": 12087, "source": "ner", "metadata": {"in_sentence": "Mr. Ga.TJatra relied upon the decisions in State v. Bhausa lianmatsa Pawar(') and City Corporation Trivandrum v. Antony(')."}}, {"text": "TJatra", "label": "OTHER_PERSON", "start_char": 12087, "end_char": 12093, "source": "ner", "metadata": {"in_sentence": "Mr. Ga.TJatra relied upon the decisions in State v. Bhausa lianmatsa Pawar(') and City Corporation Trivandrum v. Antony(')."}}, {"text": "Bombay Prohibition Act, 1949", "label": "STATUTE", "start_char": 12244, "end_char": 12272, "source": "regex", "metadata": {}}, {"text": "ss. 65, 66(b) and 83(1)", "label": "PROVISION", "start_char": 12783, "end_char": 12806, "source": "regex", "metadata": {"linked_statute_text": "The first of these is a case under\n\nthe Bombay Prohibition Act, 1949", "statute": "The first of these is a case under\n\nthe Bombay Prohibition Act, 1949"}}, {"text": "Podar Medical College", "label": "ORG", "start_char": 13154, "end_char": 13175, "source": "ner", "metadata": {"in_sentence": "Partly relying upon the certificate issued bv the Principal of Podar Medical College, the trying Magistrate acquitted the accused holding that the prosecution failed to discharge the onus of proof that angurasava was prohibited liquor."}}, {"text": "State of Maharashtra", "label": "ORG", "start_char": 13346, "end_char": 13366, "source": "ner", "metadata": {"in_sentence": "by the State of Maharashtra before the High Court reliance was placed upon the certificates issued by the Chemical Analyser as H well as by the Principal, Podar Medical College."}}, {"text": "s. 24(a)", "label": "PROVISION", "start_char": 14422, "end_char": 14430, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 12", "label": "PROVISION", "start_char": 14473, "end_char": 14479, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12", "label": "PROVISION", "start_char": 14605, "end_char": 14615, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 14682, "end_char": 14687, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 14966, "end_char": 14971, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(a)", "label": "PROVISION", "start_char": 15113, "end_char": 15121, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 510", "label": "PROVISION", "start_char": 15941, "end_char": 15947, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 15949, "end_char": 15955, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 510", "label": "PROVISION", "start_char": 16276, "end_char": 16282, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Chemical Examiner as evidence in any enquiry or trial or other proceeding under the Code", "label": "STATUTE", "start_char": 16323, "end_char": 16411, "source": "regex", "metadata": {}}, {"text": "s. 510", "label": "PROVISION", "start_char": 16726, "end_char": 16732, "source": "regex", "metadata": {"linked_statute_text": "Chemical Examiner as evidence in any enquiry or trial or other proceeding under the Code", "statute": "Chemical Examiner as evidence in any enquiry or trial or other proceeding under the Code"}}, {"text": "s. 13", "label": "PROVISION", "start_char": 17081, "end_char": 17086, "source": "regex", "metadata": {"linked_statute_text": "Chemical Examiner as evidence in any enquiry or trial or other proceeding under the Code", "statute": "Chemical Examiner as evidence in any enquiry or trial or other proceeding under the Code"}}, {"text": "sections 272 to 276", "label": "PROVISION", "start_char": 17471, "end_char": 17490, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 17498, "end_char": 17515, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 13", "label": "PROVISION", "start_char": 17898, "end_char": 17903, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 18109, "end_char": 18114, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Food Laboratory", "label": "ORG", "start_char": 18145, "end_char": 18168, "source": "ner", "metadata": {"in_sentence": "Sub-section ( 2) of s. 13 gives an opportunity to the accused vendor or the complainant on payment of the prescribed fee to make an application to the court for sending a sample of the allegedly adulterated commodity G taken under s. 11 of the Act to the Director of Central Food Laboratory for a certificate."}}, {"text": "s. 13", "label": "PROVISION", "start_char": 18655, "end_char": 18660, "source": "regex", "metadata": {"statute": null}}, {"text": "Antorry", "label": "OTHER_PERSON", "start_char": 18698, "end_char": 18705, "source": "ner", "metadata": {"in_sentence": "Sub-section ( 5) of s. 13 of the Act came for consideration in Antorry's case(') upon which the State relied."}}, {"text": "s. 13", "label": "PROVISION", "start_char": 19642, "end_char": 19647, "source": "regex", "metadata": {"statute": null}}, {"text": "s.1", "label": "PROVISION", "start_char": 22631, "end_char": 22634, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 23087, "end_char": 23092, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 23205, "end_char": 23210, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 24731, "end_char": 24736, "source": "regex", "metadata": {"statute": null}}, {"text": "Mangaldas F", "label": "PETITIONER", "start_char": 25230, "end_char": 25241, "source": "ner", "metadata": {"in_sentence": "Mangaldas F having sold the bag to Daryanomal, was the original vendor and, therefore, though the sample was taken from Kodumal he will equally be barred from saying that he was not aware of the nature, substance or quality of the turmeric powder in question.", "canonical_name": "Mangaldas F"}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 26228, "end_char": 26248, "source": "ner", "metadata": {"in_sentence": "It was A held by the Allahabad High Court that he was so entitled."}}, {"text": "s. 13", "label": "PROVISION", "start_char": 26597, "end_char": 26602, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 26996, "end_char": 27001, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 27272, "end_char": 27277, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 27452, "end_char": 27457, "source": "regex", "metadata": {"statute": null}}, {"text": "November 8, 1962", "label": "DATE", "start_char": 27549, "end_char": 27565, "source": "ner", "metadata": {"in_sentence": "In a recent case-State of Maharashtra v. Mayer Hans George( 2 )-this Court had to consider the D necessity of proving mens rea in regard to an offence under s. 23\n\n(1) (a) of the Foreign Exchange Regulation Act (7 of 1947) read with a notification dated November 8, 1962 of the Reserve Bank of India."}}, {"text": "Reserve Bank of India", "label": "ORG", "start_char": 27573, "end_char": 27594, "source": "ner", "metadata": {"in_sentence": "In a recent case-State of Maharashtra v. Mayer Hans George( 2 )-this Court had to consider the D necessity of proving mens rea in regard to an offence under s. 23\n\n(1) (a) of the Foreign Exchange Regulation Act (7 of 1947) read with a notification dated November 8, 1962 of the Reserve Bank of India."}}, {"text": "s. 8", "label": "PROVISION", "start_char": 27671, "end_char": 27675, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 27691, "end_char": 27696, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 27825, "end_char": 27830, "source": "ner", "metadata": {"in_sentence": "The majority of Judges constituting the Bench held that on the language of s. 8 ( 1) read with s. 24 ( 1) of the above E Act, the burden was upon the accused of proving that he had the requisite pennission of the Reserve Bank of India to bring gold into India and that there was no scope for the invocation of the rule that besides the mere act of voluntarily bringing gold into India any further mental condition or mens rea is postulated as necessary to constitute an offence referred to in s. 23(1-A) of the above F Act."}}, {"text": "s. 23(1-A)", "label": "PROVISION", "start_char": 28089, "end_char": 28099, "source": "regex", "metadata": {"statute": null}}, {"text": "Anthony", "label": "OTHER_PERSON", "start_char": 28269, "end_char": 28276, "source": "ner", "metadata": {"in_sentence": "The 'only other point which falls for consideration is the one raised by Mr. Anthony in the other appeal."}}, {"text": "s. 11", "label": "PROVISION", "start_char": 28510, "end_char": 28515, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7(v)", "label": "PROVISION", "start_char": 28634, "end_char": 28641, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(xiii)", "label": "PROVISION", "start_char": 29386, "end_char": 29396, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 30060, "end_char": 30065, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 30508, "end_char": 30513, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 30606, "end_char": 30611, "source": "regex", "metadata": {"statute": null}}, {"text": "Parameswaran", "label": "OTHER_PERSON", "start_char": 31208, "end_char": 31220, "source": "ner", "metadata": {"in_sentence": "No doubt, no argument was addressed in any of these cases before this Court similar to the one advanced by Mr.\n\nAnthony in this case and as advanced in Parameswaran's case(1 )."}}, {"text": "Amritlal Bhogilal", "label": "OTHER_PERSON", "start_char": 31757, "end_char": 31774, "source": "ner", "metadata": {"in_sentence": "B In Amritlal Bhogilal's case(2 ) the learned Judges held:\n\n\"There is also no reason why in such a case the article should not be held to have been sold to the inspector within the meaning of s. 4 ( 1 )(a)."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 31944, "end_char": 31948, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 32041, "end_char": 32046, "source": "regex", "metadata": {"statute": null}}, {"text": "Dada Hajj Ebrahim Helari", "label": "OTHER_PERSON", "start_char": 32433, "end_char": 32457, "source": "ner", "metadata": {"in_sentence": "In Dada Hajj Ebrahim Helari's case(8 ) which was under the Madras Prevention of Adulteration Act, (3 of 1918) Ramaswarni J., dissented from the view taken by Horwill J., in In re Ballamkonda Kankayya(') and following the E decisions in Public Prosecutor v. Narayan Singh(') and Public Prosecutor v.\n\nRamachandrayya(8 ) held the transaction by which a sample of an article of food was obtained by a sanitary inspector from the vendor amounts to a sale even though that man was bound to give the sample on tender of the price thereof."}}, {"text": "Ramaswarni", "label": "JUDGE", "start_char": 32540, "end_char": 32550, "source": "ner", "metadata": {"in_sentence": "In Dada Hajj Ebrahim Helari's case(8 ) which was under the Madras Prevention of Adulteration Act, (3 of 1918) Ramaswarni J., dissented from the view taken by Horwill J., in In re Ballamkonda Kankayya(') and following the E decisions in Public Prosecutor v. Narayan Singh(') and Public Prosecutor v.\n\nRamachandrayya(8 ) held the transaction by which a sample of an article of food was obtained by a sanitary inspector from the vendor amounts to a sale even though that man was bound to give the sample on tender of the price thereof."}}, {"text": "Horwill", "label": "JUDGE", "start_char": 32588, "end_char": 32595, "source": "ner", "metadata": {"in_sentence": "In Dada Hajj Ebrahim Helari's case(8 ) which was under the Madras Prevention of Adulteration Act, (3 of 1918) Ramaswarni J., dissented from the view taken by Horwill J., in In re Ballamkonda Kankayya(') and following the E decisions in Public Prosecutor v. Narayan Singh(') and Public Prosecutor v.\n\nRamachandrayya(8 ) held the transaction by which a sample of an article of food was obtained by a sanitary inspector from the vendor amounts to a sale even though that man was bound to give the sample on tender of the price thereof."}}, {"text": "Ballamkonda Kankayya", "label": "OTHER_PERSON", "start_char": 32609, "end_char": 32629, "source": "ner", "metadata": {"in_sentence": "In Dada Hajj Ebrahim Helari's case(8 ) which was under the Madras Prevention of Adulteration Act, (3 of 1918) Ramaswarni J., dissented from the view taken by Horwill J., in In re Ballamkonda Kankayya(') and following the E decisions in Public Prosecutor v. Narayan Singh(') and Public Prosecutor v.\n\nRamachandrayya(8 ) held the transaction by which a sample of an article of food was obtained by a sanitary inspector from the vendor amounts to a sale even though that man was bound to give the sample on tender of the price thereof."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 33658, "end_char": 33662, "source": "regex", "metadata": {"statute": null}}, {"text": "Raman Nayar", "label": "JUDGE", "start_char": 33973, "end_char": 33984, "source": "ner", "metadata": {"in_sentence": "It is, therefore, difficult to appreciate the reasons which led Raman Nayar J .,"}}]}
{"document_id": "1965_2_908_928_EN", "year": 1965, "text": "THE KESHA V MILLS CO. LTD. v.\n\nCOMMISSIONER OF INCOME-TAX, BOMBAY NORTH\n\nFebruary 8, 1965 [P. B. GAJENDRAGADKAR, C.J;, K. SuBBA RAo,\n\nK. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH,\n\nS. M. S!KRI AND R. S. BACHAWAT, JJ.]\n\nIndian Income-tax Act (11 of 1922), s. 66(4)-Power of High Court to mk Tribunal to submit supplementary statement of case after further investigation of facts-Stare decisis-Power of Supreme Court to review and revise earlier judgments-'W_hen should be exercised.\n\nThe appellant was a company registered in the erstwhile Baroda State.\n\nIn connection with the assessment year 194243 the Income-tax Officer Ahemdabad held that certain sale proceeds were received by the appellant in British India and the profit thereon was taxable under the Indian Income-tax Act, 1922. One of the items in dispute related to the sale-proceeds collected by collecting cheques on British India Sbroffs and Merchants. In respect of the said item the Appellate Assistant Commissioner as well as the Appellate Tribunal decided against the appellant, and thereafter, reference was made to the High Court. The High Court felt that it required further facts to decide the reference and twice remanded the case to the Tribunal for investigation of those facts.\n\nThe Tribunal after takinjl evidence submitted a supplementary Statement of Case on each occasion.\n\nFinally the High Court decided the question against the appellant, but granted it a certificate of fitness to appeal to the Supreme Court.\n\nIt was contended on behalf of the appellant that the High Court had no jurisdiction to direct the Tribunal to collect additional material and make it a part of the supplementary Statement of Case under s. 66( 4 fas\n\nhad been decided by this Court in·. the cases of the Petlad Co. and the New Jahangir Mills. On behalf of;:the Revenue it w.S contended that these two cases required reconsideration. The Court therefore had to consider whether it should review and revise its earlier view taken in the said two cases.\n\n HELD : (i) The JYiew contended. for on behalf of the Revenue namely, that the High Court had power to ask the Tribunal to investigate further facts and submit a supplementary Statement of Case was a reasonably possible viw. But on the other hand the opposite view taken by this Court in the Petlad Co. case and the New Jahangir Mi/18 case was also reasonably possible. The latter view had been followed by this Court on several occasions and it had regulated the procedure in reference proceedings in the High Courts ever since the decision in the New Jahangir Mills case was pronounced.\n\nBesides, no reported decision had been cited at the bar where the question about the construction of s. 66( 4) was considered and decided in favour of the view contended for by the Revenue; No case therefore was made out for a revision or review of the Court's•decisions in the Pet/ad Co. and New Jahangir Mills cases. [928 C-F1\n\nCase law discussed.\n\nThe New Jahangir Vakil Mills Ltd. v. Commissimter of Income-tax, Iiombizy North, .. {1960] 1 S.C.R. 249 and The Pet/ad Turkey Red Dye\n\nKESHAV MILLS v. C.I.T. (Gajendragadkar, CJ.) 909\n\nWorks Co. Ltd. Pet/ad v. Commissioner of Income-tax, Bombay, A.he,,,, U,.. bad, [1963] Supp. 1 S.C.R. 871, affirmed.\n\n(ii) The principle of stare decisis cannot be pressed into service In cases where the power of this Court to reconsider and revise its earlier decisions is invoked, because that power is inherent in this Court; but wvertheless the normal principle that judgments pronounced by !hi~ Court would be final cannot be ignored.\n\nUnless considerations of a subotantial and compelling character make it necessary to do so this Court should and would be reluctant to review and revise its earlier decisions. [923 B-Dl\n\nBengal Immunity Company Ltd. v. State of Bihar [1955] 2 S.C.R. 603, distinguished.\n\n(iii) If the Court is satisfied that its earlier decision was clearly erroneous, it should not hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations-What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is\n\nbased ? On the earlier occasion, did some patent aspects of question 1'1>- main unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed ? Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view?\n\nWhat would be the impact of the error on the general administration of law or on public good ? Has the earlier decision been followed on suboe quent occasions either by this Court or by the High Courts ?\n\nAnd, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief ? These considerations become still more significant when the earlier decision hal'J>CUS to be a unanimous decision of a Bench of 11ve learned Judges of this Court. [922 B-F]\n\nCML APPELLATE JURISDICTION: Civil Appeal No. 1017 of 1963.\n\nAppeal from the judgment and order dated March 30th and 31st, 1960 of the Bombay High Court in Income-tax Reference No. 2 of 1949.\n\nN. A. Palkhivala and I. N. Shroff, for the appellant.\n\nC. K. Daphtary, Attorney-General, R. Ganapathy Iyer, R. H.\n\nDhebar and R. N. Sachthey, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nGajendragadkar, C.J. When this appeal was argued before a Division Bench of this Court on October 23, 1964, it was urged on behalf of the appellant, the Keshav Mills Co. Ltd., that fo view of the present decisions of this Court in The New Jehangir\n\n910 SUPl.BMB C:OtlllT IU!POlt.TS [1965) 2 S.C.ll.\n\nVakil Mills Ltd. v. The Commissioner of Income-tax, Bombay A North, Kutch and Saurashtra('), and The Petlad Turkey Red Dye Works Co. Ltd., Petlad v. The Commissioner of Income-tax, Bombay, Ahmedabad('), the appeal must be allowed and the case sent back to the Bombay High Court for disposal in accOrdance with the principles laid down in the latter decision.\n\nAt that stage, the learned Attorney-General for the respondent, the B COmmissioner of Income-tax, Bombay North, Ahmedabad, urged that he wanted this Court to reconsider the said two decisions.\n\nHe fairly conceded that if the said two decisions wem to be followed, the appeal would have to be allowed and sent back as suggested by the appellant. The learned Judges constituting the C Division Bench took the view that an opportunity should be given to the learned Attorney-General to press his contention, and so, they directed that the appeal be placed before a Bench of five Judges.\n\nThereafter, this appeal came on for hearing before the Constitution Bench on November S, 1964.\n\nOn this occasion again, the same contentions were raised on behalf of the appellant D and the respondent respectively. Mr. Palkhivala for the appellant\n\nurged that it would be inappropriate to reconsider the recent decisions on which he relied, and he argued that on the merits, the view taken by this Court in the said two decisions was sound and correct.\n\nOn the other hand, the learned Attorney-General contended that he wanted this Court to reconsider the said two I: decisions, and he pointed out that the matter was of importance, and so, the appeal shoµld be referred to a larger Bench in view -Of the fact that the decision in the case of the Petlad Co. (1) was a unanimous decision of a Bench consiSting of five Judges of this Court. It was under these circumstances that the Court directed that the appeal should be placed before a Special F Bench of seven Judges. That is how it has come on for a final dcci- sion before a Bench of seven Judges; and the only point which has been raised for the decision of the Special Bench is whether the two decisions in question should be reviewed and revised.\n\nLet us begin by stating the relevant facts leading up to the G main point of controversy between the parties. The appellant is a company registered in the Baroda State as it then was.\n\nThe assessment year with which the proceedings giving rise to this appeal are concerned is 1942-43 (the accounting year being -calendar year 1941 ) .\n\nDuring the said year, the appellant was H a 'non-resident'.\n\nIt carried on business of manufacturing and\n\n(1) (1960) I S. C. 1l. 249.\n\n(2) (1963) Supp. 1 S. C. ll. 871.\n\nKESHAV MILLS v. C.I.T. (Gajendragadkar, C.J.) 91 l\n\nA selling textile goods in the Baroda State.\n\nThe operations in relation to all sales of goods manufactured by the appellant's Mills were completed at the appellant's premises at Petlad on the footing of ex-Mill delivery in every case.\n\nIt appears that on March 22, 1947, the Income-tax Officer, B E.P.T. Circle, Ward B, Ahmedabad, passed an order under sections 23 (3) and 34 of the Indian Income-tax Act, 1922 (No. 11 of 1922) (hereinafter called 'the Act') and held that sale proceeds in respect of the sales aggregating each of the following th!ee items were received by the appellant in British India. These\n\nitems were:\n\n(i) Sal.,.procecds actually received in the\n\naccounting Year through M/s 1•1 moh•ndas Ramanlal & Co.\n\n(ii) Sal.,.procoeds throush British Indian\n\n•Banks throullh Drafts: . . . . . .\n\n(iii) Salo procoeds collected by collcctin~\n\nchoquoa on British Indian Banko and Hundis on British Indian Shorft's and Morchanta ..\n\nRi. 12,68,460\n\nRs, 4,40,878\n\nRs. 6,71,735\n\nIt is with this last item that the present appeal is concerned.\n\nAggrieved by the order thus passed by the Income-tax Officer, E the appellant preferred an appeal before the Appellate Assistant\n\nCommissioner of Income-tax, Ahmedabad Range. The Appellate Authority held that the Income-tax Officer was in error in not excluding items (i) aqd (iii) respectively from computation of the taxable profits of the appellant. Thus, the appellant succeeded before the appellate authority in respect of the item in dispute.\n\nF This decision of the , appellate authority led to two crossappeals, one by the Income-tax Officer and the other by the appellant before the Income-tax Appellate Tribunal-hereafter called the Tribunal. The Tribunal dismissed the appellant's appeal in respect of Rs. 4,40,878/- and allowed the Income-tax G Officer's appeal in part and held that the item of Rs. 12,68,460/-\n\nhad been wrongly excluded by the Appellate Authority.\n\nIn respect of item (iii) relating to Rs. 6,71,735/-, the Tribunal hcld that in the circumstances of the case the sale proceeds represented by the .said item were not received in British India but in the State itself.\n\nH This decision of the Tribunal led to two cross-applications by the appellant and the Income-tax Officer for raising tlle questions of law before it in rdation to the items in respect of wkich\n\n912 SUPREME COUllT REPORTS [!96SJ 2 S.C.ll\n\nthey had respectively failed.\n\nAs a result of these proceedin~, A the Tribunal drew up the statement of the case on November 5, 1948, and raised the following question to the Bombay High Court:-\n\n\"Whether on the facts and in the circumstances of the case, the sums of Rs. 12,68,460/-, Rs. 4,40,878/- B and Rs. 6,71,735/-, or any of them, which represents receipts by the assessee company of its sale-proceeds in British India, include any portion of its income in British India?\"\n\nIn other words, all the three items in dispute between the appealc lant and the Income-tax Officer formed the subject-matter of the question raised by the Tribunal before the Bombay High Court.\n\nThis reference was registered as Income-tax Reference No. 2 of 1949.\n\nBy its judgment and order delivered on the 14th/15th September, 1949, in relation to items (i) and (ii) the High Court D held that the two sums in question were not debts due from British Indian Merchants but sale proceeds of the goods sold by the appellant to merchants in British India and that such sale proceeds were received by the appellant in British India.\n\nIn other words, the answers rendered by the High Court in respect E of the said two items were against the appellant The appellant came to this Court in appeal against the decision of the High Court, but its appeal failed and the view taken by the High Court was affirmed ( vide Keshav Mills Ltd. v. Commissioner of\n\nIncome-tax, Bombay)('). In the result, the controversy between the appellant and the Income-tax Officer in respect of the said items F has been finally decided against the appellant.\n\nReverting then to item (iii) with which the present appeal is concerned, the High Court took the view that before it could render an answer to the question in relation to the said item, it would like the Tribunal to furnish to the High Court further facts.\n\nG Accordingly, the High Court directed that the Tribunal should submit a supplementary statement of case and state therein as to whether there was any arrangement or agreement between the Assessee and the merchants that the giving of cheques or hundis by the merchants to the Assessee would result in an unconditional discharge of the liability of the merchants. The High Court H also issued some other directions asking the Tribunal to clarify\n\n(I) (1953] S. C. R .. 950.\n\n' .\n\nKESHAV MILLS v. C.I.T. (Gajendragadkar, C.J.) 913\n\nsome of its :relevant findings which appeared to the High Court to be somewhat confused.\n\nAs a result of this order, the case went back to the Tribunal which in tum remanded it to the Income-tax Officer for getting the requisite information.\n\nOn receiving the report of the Incometax Officer, the Tribunal submitted its Supplementary Statement of Case to the High Court on August 13, 1954.\n\nWhilst these proceedings were thus pending in the High Court, the decision of this Court in The Commissioner of Income-tax, Bombay South, Bombay v. Messrs. Ogale Glass Works Ltd., Ogale Wadi(') was pronounced. In that case, one of the points C which arose for decision was whether the Post Office which takes the cheque from the sender to the addressee is the agent of the sender or the addressee; and on this point, the Court held that as between the sender and the addressee, it is the request of the addressee that makes the post-office, the agent of the addressee and after such request, the addressee cannot be heard to say that D the post-office was not his agent.\n\nOn the other hand, if there is no such request by the addressee, express or implied, then on delivery of the letter or the cheque to the post office by. the sender, the post-office acts as the agent of , the sender.\n\nThis decision had a significant impact on the further progress of the E present dispute.\n\nAfter receiving the Supplementary Statement of Case from the Tribunal, the mattc; r was argued before the High Court on the 15th February, 1955. On this occasion, the High Court referred the matter back again to the Tribunal with the direction : \"that the Tribunal will determine on the evidence led by both i' parties whether the sum in question was paid by various merchants by sending drafts, hundis or cheques by post and that if the Tribunal found that in some cases the amount was not sent by post, then the Tribunal should determine what amount was sent otherwise than by post and the Tribunal should then submit a Supplementary Statement of the Case\".\n\nIt would be noticed that this G direction was given by the High Court obviously because the High Court wanted to deal with the question referred to it in the light of the decision of this Court in the case of Ogale Glass Works Ltd. ( '). In fact, in giving this second direction, the High Court observed that when it had called for the first Suprlementary Statement of the Case, it did not have the benefit of the decision of H this Court in the case of Ogale Glass Works Ltd., (1) and that after the said decision was pronounced, the position with regard\n\n(I} (1955] l S. C.R. 185.\n\n914 SUPIU!ME COUllT llEPORTS\n\n(1965] 2 S.C.R.\n\n.to receipt of the cheque by the appellant had been considerably A simplified.\n\nPursuant to the second order of remand made by the High Court, the Tribunal submitted its second Supi)lementary Statement of the Case on the 26th October, 1959. After receipt of the second Supplementary Statement, the Reference again came up B for hearing before the High Court.\n\nAfter hearing the parties, the High Court has rendered its answer against the appellant on the question in relation to the item in dispute.\n\nIt is against this order passed by the High Court on the 30th and 31st March, 1960, that the appellant has come to this Court with a certificate granted by the High Court; and on its behalf, Mr. Palkhivala has urged c that in view of the decisions of this Court in the New J ehangir Mills(') case and Petlad Co.(2) case, the appeal must be allowed and the case remitted to the High Court to be dealt with in accordance with the principles laid down by this Court in the latter case.\n\nIt is common ground that as a result of the two orders of D remand passed by the High Court in the present Reference proceedings, some material evidence which was not on the record when the question was framed by the Tribunal and sent to the High Court under s. 66( 1) of the Act, has been collected and made a part of the Supplementary Statement of the Case; and basing himself on this fact, Mr. Palkhivala contends that the E High Court had no jurisdiction to direct the Tribunal to collect additional material and form it a part of the Supplementary Statement under s. 66 ( 4) of the Act.\n\nIt is in support of this contention that reliance ill placed on the two decisions in question.\n\nBefore addressing ourselves to the problem as to whether the F view taken by this Court in the said two decisions needs to be reconsidered and revised, it is necessary that we should refer to the said two decisions as well as other decisions on which both the parties have relied before us in the course of the arguments.\n\nThe first decision on which Mr. Palkhivala relies is the New Jehangir Mills(') case. In that case, the question which was G referred by the Tribunal to the High Court was whether the receipt of the cheques in Bhavnagar amounted to receipt of saleproceeds in Bhavnagar.\n\nBefore rendering its answer to this question, the High Court had directed the Tribunal to furnish a \"Supplementary Statement of the Case on the following points :-\n\n\"On the finding of the Tribunal that all the cheques -received in Bhavnagar, lhe Tribunal should find\n\n(1) (1960] 1 S. C.R. 249.\n\n(2) (1963] Supp. I S. C.R. 871.\n\nKESHA v MILLS v. C.I. T. ( Gaiendragadkar, C.J.) 915\n\nA what portion of these cheques were received by post, whether there was any request by the assessee, express or implied, that the amounts which are the subjectmatter of these cheques should be remitted to Bhavnagar by post\".\n\nB It would be noticed that as a result of this direction, the question which would really have to be considered by the High Court would be whether the posting of the cheques in British India at the request, express or implied, of the appellant, amounted to receipt of sale-proceeds in British India. It was urged by the appellant in that case that as a result of the direction issued by c the High Court calling for a supplementary \"statement of the case, the nature of the question formulated by the Tribunal had been altered, and that was beyond the competence of the High Court under s. 66 ( 4). In substance, this plea was upheld by this Court and it was held that in calling for the supplementary statement of the case, the lligii Court had misconceived its powers D under s. 66 ( 4) of the Act According to this decision, s. 66 ( 4) must be read with s. 66 ( 1) and s. 66 (2), and so read, it did not empower the High Court to raise a new question of law which did not arise out of the Tribunal's order or direct the Tribunal to investigate new and further facts necessary to deter-\n\nE mine the new question which had not been referred to it under s. 66(1) ors. 66(2) of the Act and direct the Tribunal to submit supplementary statement of case. The additions and alterations in the statement of case which can be directed under s. 66 ( 4) could, in the opinion of this Court relate only to such facts as already formed part of the record but were not included by the Tribunal in the statement of the case.\n\nMr. Palkfilvala contends F that in the light of the decision, we ought to hold that in so far as the two orders of reinand passed by the High Court in the present Reference proceedings have led to the collection of additional material and evidence and their inclusion in the supplementary statemCQts of the case, the High Court has exceeded its jurisdiction under s. 66 ( 4).\n\nG The other case on which Mr. Palkhivala strongly relies is the decision of this Court in the Pet/ad Co. Ltd.(')·. In that cas.e.\n\none of the points decided by this Court had reference to the extent of the powers and authority of the High Court under s. 66( 4). It was held that though the High Court had power H to direct a &upplemental statement to be made, it was beyond its\n\ncompetence .to direct additional evidence to be taken.\n\nIn other\n\n(I) (1963] Supp. 1 S. C.R. 871.\n\n916 SUP RB ME COURT llllPOll TS\n\n[ 1965] 2 S.C.R..\n\nwords, this Court took the view that when the High Court makes A an order of remand under s. 66( 4) and directs the Tribunal to furnish a supplemental statement of the case, it can require the Tnbunal to include in such supplemental statement material and evidence which may already be on the record, but which had not been included in the statement of the case initially made under s. 66 (1). The result of this decisioµ is that s. 66 ( 4) does not B confer on the High Court power to require tho Tribunal to take additional evidence before it renders its answers on the questions formulated under s. 66(1) ors. 66(2). In accordance with the view thus taken by this Court, the direction issued by the High .Court to submit a supplemental statement of the case after taking .additional evidence was reversed, and following the precedent in C the New Jehangir Mills(') case, an order was passed that the appeals should be allowed and the matter remitted to the High -Court to give its decision on the question of law referred to it as\n\nrequired under s. 66( 5) of the Act.\n\nBefore the decision of this Court in the Pet/ad Co. Ltd.(') o was pronounced, a similar point had been raised in the case of M/s. Zoraster and Co. v. The Commissioner of lncome-t~.\n\nDelhi, Ajmer, Rajasthan and Madhya Bharat (now Madhya Pradesh)(').\n\nIn this latter case, the question referred to the High Court for its decision was whether on the facts and circumstances of the case, the profits and gains in respect of the sales J: made to the Government of India were received by the assessee in the taxable territories ?\n\nWhile dealing with this question, the High Court thought it necessary to remand the case to the Tribunal for a supplemental statement of the case calling for a finding on the question whether the cheques were sent to the assessee firm by post or by hand and what directions, if any, had the assassee F firm given to the department in the matter ?\n\nThe validity and correctness of this direction was challenged by the appellant before this Court in view of the decision of this Court in the case of New Jehangir Mills('). While dealing with this objection raised by the appellant, this Court held that the question as it was framed, was wide enough to include an enquiry as to whether G there was any request, express or implied, that the amount of the bills be paid by cheques so as to bring the matter within the dicta of this Court in the Ogale Glass Works(') case or in Shri Jagdish Mills Ltd. v. The Commissioner of lncome-t~. Bombay North, Kutch and Saurashtra, Ahmedabad(6 ) and since it did not appear H\n\n(I) [1960] I S. C. R. 249.\n\n(2) [1963] Supp. I S. C.R. 871. (3} (1961) l S. C.R. 210.\n\n(4} (19SS] 1S.C.R.185.\n\n(S) (1960] I S. C. R. 236.\n\nKl!SHAV MU.LS v. C.I; T. {Gajndmgllllkar, C.J.) 917\n\nA ftoJn die . or.dcr . of remand passed by the High Coun that the\n\nHigh Court intended that the Tribunal should admit fres~ evidence\n\nWore submitting its supplemental statement, the impugned direction could not be said to be invalid.\n\nThis decision shows that when a question is framed for the decision of the High Court in wide terms, and the High Court finds that before rendering its B answer on the said question some new aspects have to be considered and it feels that for dealing with the said new aspects of the matter, a .supplemental statement of the case should be called for, the Hjgh Court is authorised to call such a supplemental statement, provided, of course, the High Co_urt does not require the Tribunal to collect additional material or evidence before C submitting its supplemental statement.\n\nThe same view has been expressed by this Court in the case of Commissioner of Income-tax, Madras v. M. Ganapathi Mudalit11'(').\n\nAccording to this decision, a supplementary statement of case may contain such alterations or additions as the High D O>urt may direct, but the statement must necessarily be based on facts which are already on the record.\n\nWhile exercising its jurisdiction under s. 66 ( 4), the High Court has no power to ask for a fresh statement of case with a direction that the Tribunal should go into the matter again and record further evidence.\n\nE Th.etc is one more decision to which reference may incidentally be made before we part with the series of decisions on which Mr. Palkhivala relies.\n\nIn the Commissioner of Income-tax, Bombay v. The Scindia Steam Navigation Co. Ltd.,(') this Court had occasion to consider the scope and denotation of the express.ion \"any question of law arising out of such order\" occurring in F s. 66(1) of the Act.\n\nThe majority decision has summed ap the result of the discussion as to the scope and effect of the provilions of s. 66 in these words :\n\n(1) When a question is raised before the Tribunal and is dealt with by it, it is clearly one arising out of its order.\n\n(2) When a question of law is raised before the Tribunal but G the Tribunal fails to deal with it, it must be deemed to have been dealt with by it, and is, therefore, one arising out of its order.\n\n(3) When a question is not raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of.its order.\n\nH ( 4) When a question of law is neither raised before the Tribunal. nor considered by it, it will not be a question arising\n\n(t) (1964] 53 11.T.R. 623.\n\n(2) (1962} I S. C.R. 788.\n\n918 SUPREME COUll.T REPORTS\n\n[1965) 2 S.C.R.\n\nout of its order notwithstanding that it may arise on the findings A \\.. given by it.\n\nIn substance, these propositions mean that it is only a question that has been raised before or decided by the Tribunal that could be held to arise out of its order.\n\nLet us now refer to the decisions on which the learned B Attorney-General has relied in support of his contention that the High Court has power under s. 66 ( 4) to call for new additional evidence if it takes the view that such additional evidence is ' necessary to enable it to determine the question raised for its decision satisfactorily.\n\nThe learned Attorney-General has fairly conceded that he has not been able to find any ecision where this C question has been answered in favour of the view for which he contends after construing the relevant provisions of s. 66 ( 4) of the Act.\n\nHe, however, urges that there is high authority in support of the practice for which he contends inasmuch as the Privy Council appears to have assumed that the High Court can, 0 in exercise of its powers under s. 66 ( 4), call for additional evidence.\n\nThe first decision of the Privy Council on which he relies is in the case of (Sir Sunder Singh Majithia v. The Commissioner of Income-tax, C.P. & U.P.(' ). In that case, two of the questiom\n\nwhich arose were : whether the steps taken by the assessee to vest in his wife and sons an interest in the inunovable assets of E the business were not legally effective, e.g., for want of a registered instrument of transfer; and if the factory, land and buildings in question were joint family property, whether it was shown that a partition at the hands of the father of the said properties could not be effected without a written instrument ? The question of law formulated for the decision of the High Court was : \"In all F the circumstances of the case, having regard to the personal law governing the assessee and the requirements of the Transfer of Property Act (IV of 1882) and the Stamp Act (II of 1899), has the deed of partnership dated February 12, 1933, brought into existence a genuine firm entitled to registration under the provisions of s. 26-A of the Act?\" While answering this ques- G tion, one of the points which had to be decided was whether the inunovable properties were the self-acquisitions of the father or not.\n\nThe Privy Council took the view that before a satisfactory answer could be rendered on the question framed, several facts had to be ascertained, and in its judgment the Privy Council has indicated the nature of these facts. \"It is necessary to know\", H says the judgment, \"as regards (a) the business, machinery, plant\n\n(I) {1942] 10 I.T.R. 457.\n\nKBSHAV MILLS \\I, C.LT. (Gandnlgadkar. C.J.) 119\n\nA and other movables; (b) the factory bulldinp and land wbethcr\n\nthey were before 1931 the self-acquired property of the father or his ancestral property or joint family property or whother they\n\nfall into some other and what category according to the cuatomary law\". The judgment also points out that the rights of the members of the family in respect of the said property would have B to be ascertained and the conduct of the parties comidered. 'Iben,\n\nin regard to the agreement in question, the Privy Council pointed out that it would be necessary to enquire what agrcmnont, if any, was made prior to February 12, 1933, and when as to a partner ship being constituted to carry on the sugar factory and as to the assets which it was to have as a firm. \"None of these essential C facts\", says the judgment, \"have been found and stated by the\n\nCommissioner, with the result that the question referred cannot be answered until the High Court has exercised its powers under sub-section ( 4) of section 66 of the Act\". Having made thme observations, the Privy Council left it to the discretion of the High\n\nCourt to specify the particular additions and alterations which D the Commissioner should be directed to make. In the result,\n\nthe advice tendered by the Privy Council was \"that the case be remanded to the High Court for disposal after taking such action\n\nunder sub-section ( 4) of s. 66 of the Act as the High Court may think fit in the light of this judgment\". The argument is that r. the facts which the Privy Council thought it necessary to ascertain before answering the question, indicate that they could not have been on the record at the time when the question was originally framed by the Commissioner, and so, the suggestion is that inasmuch as the Privy Council indicated that the High Court should call for a supplemental statement in regard to facts which F were apparently not already on the record, this decision should be taken to support the contention that s. 66( 4) authorised the High Court to call for new additional material before it renders\n\nits answers to the questions formulated under s. 66(1) or s. 66(2).\n\nA similar argument is based on another decision of the Privy G Council in Trustees of the Tribune Press, Lahore v. Commissioner\n\nof Income-tax, Punjab, Lahore('). In that .case, the questions which were referred to the High Court were : \"(I ) whether the income of the Tribune Trust was liable to be assesaed in the hands\n\nof the Trustees under the provisions of the Income-tax Act ?· and\n\n(2) if it was, whether it was not exempt under s. 4(3)(1) ci the H Act?\" In the High Court, there was a sharp di1ference .of opinion\n\nbetween the Judges who heard the reference; but ultimately the\n\n(I) 661 A. 241. \\ u Sup./65-13\n\n920 SUPUMB COUllT llllPC>aTS [1965] 2 S.C.ll\n\n1111Wen went against the Tribwie, and so, the dispute was taken A to the Privy Council by the Trustees of the Tribune Trust.\n\nAt the first hearing of the said appeal before the Privy Council, it was consi.dcrcd by the Board to be desirablo that the powers conferred by aub-s. 4 of a. 66 of tho Act should be employed to obtain further information. Accordingly, by an Order in Council, dated July 29, 1937, it was directed in accordance with the advice B tendered by the Board that tho case ought to be remitted to the High Court of Judicature at Lahore with a direction that the said High Court shall refer the case back to the Commissioner under s. 66(4), first for tho addition of such facts during tho life-time of tho testator Sardar Dayal Singh as may bear upon the proper intoiprctation of tho expression 'keoping up the liberal policy of c the said newspaper' in clallSO XXI of the will of tho said testator datod the 15th Day of Juno, 1895, and sccondty, for the addition of such facts as to a compromise dated the 1st day of Doccmber, 1906, as may show whether the said compromiso is binding on all parti.os interested in the estate of the said testator. Thcrcaftor, 0 a supplcmontary statement made by the Commissioner was filed and it appears that before ho made the said statement, the Commissioner \"carefully assembled considerable material explanatory of the direction given by the testator in the phrase 'keeping up tho liberal policy of the said newspaper', and showing as their Lordships think, very fairly, the nature and purpose of the trust\". I: After considering tho said material, the Privy Council allowed tho appeal preferred by tho Trustees, because in its opinion tho second question framed for o decision of the High Court had to be answered in favour of tho assessee. It is urged that this decision also shows that tho Privy Council called for additional material and evidence by requiring the High Court to exercise F its powers in that behalf under s. 66 ( 4) of the Act.\n\nThe learned Attorney-General also stated that there were some other decisions of the High Courts in India where similar additional evidence had been called for by the High Courts under s. 66( 4), and by way of illustration, he cited before us the decision of the G Bombay High Court in Messrs. Govindam Bros. Ltd. v. Commiuioner of Income-tax, Central, Bombay(1).\n\nIt is, however, clear that in none of the decisions on which the learned Attomey- General relics has the question about the construction of s. 66(4) been argued, considered and decided. That, broadly stated, is tho position disclosed by tho judicial decisions bearing on the point H with which we are concerned in the present appeal.\n\n(I} (II*! 14 L T.JL 7'4.\n\nKESHAV MILLS v. C.I.T. (Ga1endragadkar, C.J.) 921\n\nIn dealing with the question as to whether the earlier decisions of this Court in the New Jehangir Mills(') case, and the Pet/ad Co.\n\nLtd.(2 ) case should be reconsidered and revised by us, we ought to be clear as to the approach which should be adopted in such cases.\n\nMr. Palkhivala has not disputed the fact that in a proper case, this Court has inherent jurisdiction to reconsider and revise its earlier decisions, and so, the abstract question as to whether such a power vests in this Court or not need not detain us. In exercising this inherent power, however, this Court would naturally like to inipose certain reasonable limitations and would be reluctant to entertain pleas for the reconsideration and revision of its earlier decisions, C unless it is satisfied that there are compelling and substantial reasons to do so. It is general judicial experience that in matters of law involving questions of construing statutory or constitutional provisions, two views are often reasonably possible and when judicial approach has. to make a choice between the two reasonably possible views, the process of decision-making is often very difficult D and delicate. When this Court hears appeals against decisions of the High Courts and is required to consider the propriety or correctness of the view taken by the High Courts on any point of law, it would be open to this Court to hold that though the view taken by the High Court is reasonably possible, the alternative view which is also reasonably possible is better and should be preferred. In E such a case, the choice is between the view taken by the High Court whose judgment is under appeal, and the alternative view which appears to this Court to be more reasonable; and in accepting its own view in preference to that of the High Court, this Court would be discharging its duty as a Court of Appeal. But different considerations must inevitably arise where a previous decision of F this Court has taken a particular view as to the construction of a statutory provision as, for instance, s. 66 ( 4) of the Act. When it is urged that the view already taken by this Court should be reviewed and revised, it may not necessarily be an adequate reason for such review and revision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed G on the subsequent occasion is more reasonable. In reviewing and revising its earlier decision, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions H are, under Art. 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of\n\n(1) [I~ t S.C.R. 249.\n\n(2) [t963) Supp. t S.C.R. 871.\n\nL4 Sup./6!5-14\n\nSUPREME COURT REPORTS\n\n\nthis Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions.\n\nIt would always depend upon several relevant considerations :- What is the nature of the infirmity or error on which a plea for\n\na review and revision of the earlier view is based ? On the earlier D occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed ? Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view ? What would be the impact of the error on the general E administration of law or on public good ? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts ? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief ? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to F review and revise its earlier decisions.\n\nThese considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bc; nch of five learned Judges of this Court.\n\nIt is true that in the case of the Bengal Immunity Company G Ltd. v. The State of Bihar & Ors. (1 ) this Court by a majority of 4 : 3 reversed its earlier majority decision ( 4 : 1) in the State of Bombay and Another v. The United Motors (India) Ltd. and Ors. ( 2); but that course was adopted by the majority of Judges in that case, because they were persuaded to take the view that there were several circumstances which made it necessary to adopt H that course.\n\n(I) [19SS] 2 S.C.R. 603.\n\n(2) [1953] S.C.R. 1069.\n\nKESHAV MILLS v. C.I.T. (Gajendragadkar, C.J.) 923\n\nA On the other hand, dealing with a similar problem in the cne of Sajjan Singh etc. v. The State of Rajasthan etc.('), this Court unanimously rejected the request made on behaH of the petitioners that its earlier decision in Sri Sankari Prasad Singh Deo v. The Union of India and State of Bihar(2 ) shoi.ild be reviewed and revised.\n\nHidayatullah and Mudholkar, JJ. who were somewhat B impressed by some of the pleas made in support of the contention that the earlier decision should be revised, in substance agreed with the ultimate decision of the Court that no case had been made out for a review or revision of the said earlier decision. The principle of stare decisis, no doubt, cannot be pressed into service C in cases where the jurisdiction of this Court to reconsider and revise its earlier decisions is invoked; but nevertheless, the normal principle that judgments pronounced by this Court would be final, cannot be ignored, and unless considerations of a substantial and compelling character make it necessary to do so, this Court should and would be reluctant to review and revise its earlier decisions.\n\n0 That, broadly stated, is the approach which we propose to adopt in dealing with the point made by the learned Attorney-General that the earlier decisions of this Court in the New J ehangir Mills(') case, and the Pet/ad Co. Ltd.(') case should be reconsidered and revised.\n\nE Let us then consider the question of construing s. 66( 4) of the Act. Before we do so, it is necessary to read sub-section (1), (2) and (4) of s. 66. Section 66(1) reads thus:-\n\n\"Within sixty days of the date upon which he is served with notice of an order under sub-section ( 4) of section 3 3, the assessee or the Commissioner may, by application in the prescribed form, accompanied where application is made by the assessee by a fee of one hundred rupees, require the appellate Tribunal to refer to the High Court any question of law arising out of such or\\ler, and the Appellate Tribunal shall within ninety days of the receipt of such application draw up a statement of the case and refer it to the High Court\".\n\nThere is a proviso to this sub-section wluch is not relevant for our purpose. Section 66(2) reads thus :\n\n\"If on any application being made under sub- H section (1), the Appellate Tribunal refuses to state the\n\n(I) [1965] I S.C.R. 933.\n\n(3) [1960] I S.C.R. 249.\n\n(2) [1952) S.C.R. 89.\n\n(4) (1963] SuPI>. 1 S.C.It. 87!.\n\n924 SUPIU!MJ! C:OUil.T REPORTS\n\n\ncase on the ground that no question of law arises the ee .or the Commissioner, as the case may be, :nay,\n\nthin si:r months from the date on which he is served with ot1ce of the refsa!, pply to the High Court, and the High Court may, if 1t 1s not satisfied of the correctness_ of the decision of the Appellate .Tribunal, require the Appellate Tribunal to state the case and to refer it\n\nan~ on receipt of any such requisition the Appellat~ Tnbunal shall state the case and refer it accordingly\".\n\nThat takes us to sub-section ( 4) which reads thus :-\n\n\"If the High Court is not satisfied that the statements in a case referred under this section are sufficient to enable it to determine the question raised thereby, the Court may refer the case back to the Appellate Tribunal to make such additions thereto or alterations therein as the Court may direct in that behalf'.\n\n'Section 66(5) provides that the High Court upon hearing of any such case shall decide the questions of law raised thereby and shall -deliver its judgment thereon containing the grounds on which such decision is founded and shall send a copy of such judgment to the Appellate Tribunal which shall pass such orders as are\n\nnecessary to dispose of the case confonnably to such judgment.\n\nIt is clear that when the Tribunal draws up a statement of the case and refers a question of law to the High Court under\n\n~. -66( 1), the said question must arise out of its order, and the statement of the case would _necessarily be limited to the statement of facts already bro.ught on the record _either before the F Income-tax Officer or before the Appellate Assistant Commissioner, or before the Tribunal There is no doubt and indeed no dispute before us that the question of law must arise from the Tribunal's order and the statement of the case must be confined to the facts already brought on the record. The same would be the position where the High Court requires the Tribunal to state G the case and refer to it under s. 66(2). The position, therefore, is that when the High Court is exercising its advisory jurisdiction under s. 66(4), it is dealing with a question of law arising from the order of the Tribunal and has to answer the said question in the light of the statement of the case submitted to it by the Tribunal.\n\nIn normal course, the statement of the case would refer to facts H ...elected by the Tribunal from out of the material already on the record and it is in the light of the said statement of the case that\n\nKllSHAV MILLS v. C.J.t. (Gajendragadkar, C.J.) 925\n\nA the question has to be answered by the High Court. Thus far, there is no controversy or dispute.\n\nSection 66(4), however, authorises the High Court to refer the case back to the Tribunal to make such additions to the statement of the case or alterations therein as the Court may direct in that B behalf. This power can be exercised by the High Court if it is satisfied that the statement of the case is not sufficient to enable it to determine the question raised by it. If the High Court feels that in order to answer satisfactorily the question referred to it it is necessary to have additional material included in the statement of the case, the High Court can make an appropriate direction c in that behalf. If the High Court is satisfied that some alterations should be made in the statement of the case to enable it to determine the question satisfactorily, it can make an appropriate direc tion in that behalf.\n\nThe question is whether in issuing appropriate directions under s. 66(4), the High Court can ask the Tribu nal to travel outside the record and call for and collect material D which is not already produced on the record. If s. 66(4) is read along with s. 66(1) and s. 66(2), it may tend to show that the power of the High Court is limited to requiring the Tribunal to add to or alter the statement of the case in the light of the material and evidence already on the record. H the question that can be raised under s. 66(1) and s. 66(2) can arise only out of the order E of the Tribunal and if the statement of the case required to be drawn up by the Tribunal under the said two provisions would inevitably be confined to the facts and material already on the record, it seems unlikely that s. 66(4) would authorise the High Court to direct the Tribunal to collect additional material or evidence not on the record.\n\nF The scheme of the Act appears to be that before the Incometax Officer all the relevant and material evidence is adduced. When the matter goes before the Appellate Assistant Commissioner, he is authorised under s. 31(2) to make such further enquiry as he thinks fit, or cause further enquiry to be made by the Income-tax G Officer before he disposes of the appeal filed before him. Section 31 ( 2) means that at the appellate stage additional evidence may be taken and further enquiry may be made in the discretion of the Appellate Assistant Commissioner. When the ll)atter goes before the Appellate Tribunal under s. 33, the question about the admission of additional evidence is governed by Rule 29 of the Income H tax (Appellate Tribunal) Rules, 1963. This Rule provides that the parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, but if U Sup./65-15\n\n926 SUPlU!Ml! COUllt REPORTS (1965] i S.C.It.\n\nthe Tribunal requires any documents to be produced or any witness A to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or if the Income-tax Officer has decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by ·\n\nhim or not specified by him, the Tribunal may allow such document to be produced or witness to be examined or affidavit to be B filed or may allow such evidence to be adduced.\n\nAfter the Tribunal has passed orders on the appeal before it, the stage is reached to take the matter by way of reference proceedings before the High Court under s. 66. This scheme indicates C that evidence has to be led primarily before the Income-tax Officer, though additional evidence may be led before the Appellate Assistant Commissioner or even before the Tribunal, subject to the provisions of s. 31(2) of the Act and Rule 29 respectively, and that means that when the Tribunal has disposed of the matter and D is preparing a statement of the case either under s, 66(1) or under s. 66(2), there is no scope for any further or additional evidence.\n\nWhen the matter goes to the High Court, it has to be dealt with on the evidence which has already been brought on the record.\n\nIf the statement of the case does not refer to the relevant and material facts which are already on the record, the High Court E may call for a supplementary statement under s. 66( 4), but the power of the High Court under s. 66(4) can be exercised only in respect of material and evidence which has already been brought on the record.\n\nF There is another consideration which is relevant in dealing with the question about the scope and effect of the provisions contained in s. 66(4). Proceedings taken for the recovery of tax under the provisions of the Act are naturally intended to be over without unnecessary delay, and so, it is the duty of the parties, both the department and the assessee, to lead all their evidence at the stage G when the matter is in charge of the Income-tax Officer. Opportunity is, however, given for additional evidence bys. 31(2) and Rllle 29; but if further evidence is allowed to be taken under the directions of the High Court under s. 66(4), it is likely that tax proceedings may be prolonged interminably, and that could not be the object of the Act as it is evidenced by the relevant provi- H sions to which we have already referred.\n\nThese mainly are the grounds on which the earlier decisions of this Court in the New\n\nKESHAV MILLS v. C.I.T. (Gaiendragadkar, C./.) 927\n\nA Jehangir Mills(') case and the Pet/ad Co. Ltd. (2) case substantially rest.\n\nOn the other hand, it must be conceded that the words used in s. 66(4) are wide enough and they may, on a liberal construction, include the power to call for additional evidence by directing the B Tribunal to file supplementary statement of the case. It is true that s. 66( 4) in terms does not confer such a power and it may be that having regard to the scheme of s. 66(1) and (2), one would have expected specific and express terms conferring such power on the High Court in s. 66( 4) if the Legislature had intended that the High Court would be competent to call for additional evidence; c but there are no terms of limitation in s. 66 ( 4), and it would be reasonably possible to construe s. 66( 4) as enabling the High Court to call for additional evidence if it is satisfied that the material in the statement of the case is not sufficient to answer satisfactorily the question raised by the statement of the case. When the High Court is dealing with the statement of the case under s. 66( 4), it D is its duty to answer the question submitted to it.\n\nAs has been held by this Court in Ra; kumar Mills Ltd. v. Commissioner of Income-tax, Bombay('), where the question involved is one of law and the High Court finds it difficult to answer the question owing to the unsatisfactory nature of the statement of the case submitted by the Tribunal, the proper procedure is to call for a E further statement of the case and then decide the question itself.\n\nThe High Court would be adjuring its advisory function if it merely gives some directions and orders the Tribunal to dispose of the matter according to law and in the light of the directions given by it without referring the matter again to the High Court; and so, F if the High Court finds that in order to deal with the question referred to it satisfactorily it is necessary to ascertain some relevant and material facts, it should be open to the High Court to direct the Tribunal to make .a supplementary statement containing the said material and facts. There is no provision in s. 66(4) which prevents the exercise of such a power.\n\nG In some cases, the question of law referred to the High Court may have to be considered in several aspects some of which may not have been appreciated by the Tribunal. There is no doubt that if a question of law is framed in general terms and in dealing with it several aspects fall to be considered, they have to be considered by the High Court even though the Tribunal may not have H considered them. In such a case, if in dealing with some aspects\n\n(I) [1960) I S.C.R. 249.\n\n(2) (1963] Supp. I S.C.R. 871. (3)'fl9SSl,28 I.T.R.'184.\n\n928 SUPllBMB COUJ.T lll!POllTS [1965] 2 S.C.lt.\n\nof the matter it becomes necessary to ascertain additional facts, A it would be unsatisfactory to require the High Court to answer the question without such additional facts on the ground that they have not been introduced on the; record already. Refusal to recognise the jurisdiction of the High Court to call for such additional evidence may lead to hardship in many cases, and since there are no words expressly limiting the powers of the High Court under B s. 68(4), there is no reason why the said powers should receive a narrow and limited construction. That is the view for which the learned Attorney-General contends.\n\nIt must be conceded that the view for which the learned Attorney-General contends is a reasonably possible view, though c we must hasten to add that the view which has been taken by this Court in its earlier decisions is also reasonably possible. The said earlier view has been followed by this Court on several occasions and has regulated the procedure in reference proceedings in the High Courts in this country ever since the decision of this Court in the New /ehangir Mills(') was pronounced on May 12, 1959. D Besides, it is somewhat remarkable that no reported decision has been cited before us where the question about the construction of s. 66(4) was considered aqd decided in favour of the Attomey- General's contention.\n\nHaving carefully weighed the pros and cons of the controversy which have been pressed before us on the present occasion, we are not satisfied that a case has been made E out to review and revise our decisions in the case of the New /ehangir Mills(') and the case of the Pet/ad Co. Ltd.('). That is why we think that the contention raised by Mr. Palkhivala must be upheld. In the result, the order passed by the High Court is set aside and the matter is sent back to the High Court with a dir1:ction that the High Court should deal with it in the light of F the two relevant decisions in the New I ehangir Mills ( 1) and the Petlad Co. Ltd.(').\n\nBefore we part with this appeal, however, we would like to add thait in the course of the debate in the present appeal, Rule 39 of the Income-tax (Appellate Tribunal) Rules was incidentally referred G to, though neither party based any argument on it.\n\nThat being so, the question as to the true scope and effect of the provisions contained in the said Rule does not fall to be considered in the present proceedings and we express no opinion on it. There would be no order as to costs throughout.\n\nAppeal allowed and remanded.\n\n(l) [1960] l S.C.R. ~9.\n\n(2) (190] Supp. I S, C.R. 171,", "total_entities": 147, "entities": [{"text": "THE KESHA V MILLS CO. LTD", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "THE KESHAV MILLS CO. LTD", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, BOMBAY NORTH", "label": "RESPONDENT", "start_char": 31, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, BOMBAY NORTH", "offset_not_found": false}}, {"text": "February 8, 1965", "label": "DATE", "start_char": 73, "end_char": 89, "source": "ner", "metadata": {"in_sentence": "v.\n\nCOMMISSIONER OF INCOME-TAX, BOMBAY NORTH\n\nFebruary 8, 1965 [P. B. GAJENDRAGADKAR, C.J;, K. SuBBA RAo,\n\nK. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH,\n\nS. M. S!KRI AND R. S. BACHAWAT, JJ.]"}}, {"text": "P. B. GAJENDRAGADKAR, C.J", "label": "JUDGE", "start_char": 91, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. SuBBA RAo", "label": "JUDGE", "start_char": 119, "end_char": 131, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 134, "end_char": 147, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, J", "label": "JUDGE", "start_char": 149, "end_char": 167, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 168, "end_char": 175, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ.", "label": "JUDGE", "start_char": 194, "end_char": 213, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Indian Income-tax Act", "label": "STATUTE", "start_char": 216, "end_char": 237, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 66(4)", "label": "PROVISION", "start_char": 252, "end_char": 260, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-tax Act", "statute": "Indian Income-tax Act"}}, {"text": "Ahemdabad", "label": "GPE", "start_char": 620, "end_char": 629, "source": "ner", "metadata": {"in_sentence": "In connection with the assessment year 194243 the Income-tax Officer Ahemdabad held that certain sale proceeds were received by the appellant in British India and the profit thereon was taxable under the Indian Income-tax Act, 1922."}}, {"text": "British India", "label": "GPE", "start_char": 696, "end_char": 709, "source": "ner", "metadata": {"in_sentence": "In connection with the assessment year 194243 the Income-tax Officer Ahemdabad held that certain sale proceeds were received by the appellant in British India and the profit thereon was taxable under the Indian Income-tax Act, 1922."}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 762, "end_char": 776, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "British India Sbroffs and Merchants", "label": "ORG", "start_char": 876, "end_char": 911, "source": "ner", "metadata": {"in_sentence": "One of the items in dispute related to the sale-proceeds collected by collecting cheques on British India Sbroffs and Merchants."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 1474, "end_char": 1487, "source": "ner", "metadata": {"in_sentence": "Finally the High Court decided the question against the appellant, but granted it a certificate of fitness to appeal to the Supreme Court."}}, {"text": "Petlad Co.", "label": "ORG", "start_char": 1759, "end_char": 1769, "source": "ner", "metadata": {"in_sentence": "the cases of the Petlad Co. and the New Jahangir Mills."}}, {"text": "New Jahangir Mills", "label": "ORG", "start_char": 1778, "end_char": 1796, "source": "ner", "metadata": {"in_sentence": "the cases of the Petlad Co. and the New Jahangir Mills."}}, {"text": "s. 66( 4)", "label": "PROVISION", "start_char": 2698, "end_char": 2707, "source": "regex", "metadata": {"statute": null}}, {"text": "1960] 1 S.C.R. 249", "label": "CASE_CITATION", "start_char": 3033, "end_char": 3051, "source": "regex", "metadata": {}}, {"text": "[1955] 2 S.C.R. 603", "label": "CASE_CITATION", "start_char": 3808, "end_char": 3827, "source": "regex", "metadata": {}}, {"text": "N. A. Palkhivala", "label": "OTHER_PERSON", "start_char": 5602, "end_char": 5618, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhivala and I. N. Shroff, for the appellant."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 5623, "end_char": 5635, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhivala and I. N. Shroff, for the appellant."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 5657, "end_char": 5671, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, R. Ganapathy Iyer, R. H.\n\nDhebar and R. N. Sachthey, for the respondent."}}, {"text": "R. Ganapathy Iyer", "label": "LAWYER", "start_char": 5691, "end_char": 5708, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, R. Ganapathy Iyer, R. H.\n\nDhebar and R. N. Sachthey, for the respondent."}}, {"text": "R. H.\n\nDhebar", "label": "LAWYER", "start_char": 5710, "end_char": 5723, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, R. Ganapathy Iyer, R. H.\n\nDhebar and R. N. Sachthey, for the respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 5728, "end_char": 5742, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, R. Ganapathy Iyer, R. H.\n\nDhebar and R. N. Sachthey, for the respondent."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 5809, "end_char": 5823, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendragadkar, C.J. When this appeal was argued before a Division Bench of this Court on October 23, 1964, it was urged on behalf of the appellant, the Keshav Mills Co. Ltd., that fo view of the present decisions of this Court in The New Jehangir\n\n910 SUPl."}}, {"text": "Keshav Mills Co. Ltd.", "label": "ORG", "start_char": 5962, "end_char": 5983, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendragadkar, C.J. When this appeal was argued before a Division Bench of this Court on October 23, 1964, it was urged on behalf of the appellant, the Keshav Mills Co. Ltd., that fo view of the present decisions of this Court in The New Jehangir\n\n910 SUPl."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 6369, "end_char": 6386, "source": "ner", "metadata": {"in_sentence": "Vakil Mills Ltd. v. The Commissioner of Income-tax, Bombay A North, Kutch and Saurashtra('), and The Petlad Turkey Red Dye Works Co. Ltd., Petlad v. The Commissioner of Income-tax, Bombay, Ahmedabad('), the appeal must be allowed and the case sent back to the Bombay High Court for disposal in accOrdance with the principles laid down in the latter decision."}}, {"text": "Ahmedabad", "label": "GPE", "start_char": 6581, "end_char": 6590, "source": "ner", "metadata": {"in_sentence": "At that stage, the learned Attorney-General for the respondent, the B COmmissioner of Income-tax, Bombay North, Ahmedabad, urged that he wanted this Court to reconsider the said two decisions."}}, {"text": "Constitution Bench", "label": "COURT", "start_char": 7109, "end_char": 7127, "source": "ner", "metadata": {"in_sentence": "Thereafter, this appeal came on for hearing before the Constitution Bench on November S, 1964."}}, {"text": "November S, 1964", "label": "DATE", "start_char": 7131, "end_char": 7147, "source": "ner", "metadata": {"in_sentence": "Thereafter, this appeal came on for hearing before the Constitution Bench on November S, 1964."}}, {"text": "Palkhivala", "label": "OTHER_PERSON", "start_char": 7273, "end_char": 7283, "source": "ner", "metadata": {"in_sentence": "Mr. Palkhivala for the appellant\n\nurged that it would be inappropriate to reconsider the recent decisions on which he relied, and he argued that on the merits, the view taken by this Court in the said two decisions was sound and correct.", "canonical_name": "Palkfilvala"}}, {"text": "Baroda", "label": "GPE", "start_char": 8415, "end_char": 8421, "source": "ner", "metadata": {"in_sentence": "The appellant is a company registered in the Baroda State as it then was."}}, {"text": "Baroda State", "label": "GPE", "start_char": 8849, "end_char": 8861, "source": "ner", "metadata": {"in_sentence": "KESHAV MILLS v. C.I.T. (Gajendragadkar, C.J.) 91 l\n\nA selling textile goods in the Baroda State."}}, {"text": "Petlad", "label": "GPE", "start_char": 8997, "end_char": 9003, "source": "ner", "metadata": {"in_sentence": "The operations in relation to all sales of goods manufactured by the appellant's Mills were completed at the appellant's premises at Petlad on the footing of ex-Mill delivery in every case."}}, {"text": "March 22, 1947", "label": "DATE", "start_char": 9074, "end_char": 9088, "source": "ner", "metadata": {"in_sentence": "It appears that on March 22, 1947, the Income-tax Officer, B E.P.T. Circle, Ward B, Ahmedabad, passed an order under sections 23 (3) and 34 of the Indian Income-tax Act, 1922 (No."}}, {"text": "sections 23", "label": "PROVISION", "start_char": 9172, "end_char": 9183, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 9202, "end_char": 9229, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s 1", "label": "PROVISION", "start_char": 9516, "end_char": 9519, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Assistant\n\nCommissioner of Income-tax, Ahmedabad Range", "label": "PETITIONER", "start_char": 9988, "end_char": 10042, "source": "ner", "metadata": {"in_sentence": "Aggrieved by the order thus passed by the Income-tax Officer, E the appellant preferred an appeal before the Appellate Assistant\n\nCommissioner of Income-tax, Ahmedabad Range."}}, {"text": "November 5, 1948", "label": "DATE", "start_char": 11322, "end_char": 11338, "source": "ner", "metadata": {"in_sentence": "As a result of these proceedin~, A the Tribunal drew up the statement of the case on November 5, 1948, and raised the following question to the Bombay High Court:-\n\n\"Whether on the facts and in the circumstances of the case, the sums of Rs."}}, {"text": "Bombay High Court:-", "label": "COURT", "start_char": 11381, "end_char": 11400, "source": "ner", "metadata": {"in_sentence": "As a result of these proceedin~, A the Tribunal drew up the statement of the case on November 5, 1948, and raised the following question to the Bombay High Court:-\n\n\"Whether on the facts and in the circumstances of the case, the sums of Rs."}}, {"text": "India", "label": "GPE", "start_char": 11626, "end_char": 11631, "source": "ner", "metadata": {"in_sentence": "6,71,735/-, or any of them, which represents receipts by the assessee company of its sale-proceeds in British India, include any portion of its income in British India?\""}}, {"text": "14th/15th September, 1949", "label": "DATE", "start_char": 11995, "end_char": 12020, "source": "ner", "metadata": {"in_sentence": "By its judgment and order delivered on the 14th/15th September, 1949, in relation to items (i) and (ii) the High Court D held that the two sums in question were not debts due from British Indian Merchants but sale proceeds of the goods sold by the appellant to merchants in British India and that such sale proceeds were received by the appellant in British India."}}, {"text": "August 13, 1954", "label": "DATE", "start_char": 13980, "end_char": 13995, "source": "ner", "metadata": {"in_sentence": "On receiving the report of the Incometax Officer, the Tribunal submitted its Supplementary Statement of Case to the High Court on August 13, 1954."}}, {"text": "15th February, 1955", "label": "DATE", "start_char": 15101, "end_char": 15120, "source": "ner", "metadata": {"in_sentence": "After receiving the Supplementary Statement of Case from the Tribunal, the mattc; r was argued before the High Court on the 15th February, 1955."}}, {"text": "Ogale Glass Works Ltd.", "label": "ORG", "start_char": 15847, "end_char": 15869, "source": "ner", "metadata": {"in_sentence": "It would be noticed that this G direction was given by the High Court obviously because the High Court wanted to deal with the question referred to it in the light of the decision of this Court in the case of Ogale Glass Works Ltd. ( ')."}}, {"text": "26th October, 1959", "label": "DATE", "start_char": 16490, "end_char": 16508, "source": "ner", "metadata": {"in_sentence": "Pursuant to the second order of remand made by the High Court, the Tribunal submitted its second Supi)lementary Statement of the Case on the 26th October, 1959."}}, {"text": "30th and 31st March, 1960", "label": "DATE", "start_char": 16827, "end_char": 16852, "source": "ner", "metadata": {"in_sentence": "It is against this order passed by the High Court on the 30th and 31st March, 1960, that the appellant has come to this Court with a certificate granted by the High Court; and on its behalf, Mr. Palkhivala has urged c that in view of the decisions of this Court in the New J ehangir Mills(') case and Petlad Co.(2) case, the appeal must be allowed and the case remitted to the High Court to be dealt with in accordance with the principles laid down by this Court in the latter case."}}, {"text": "New J ehangir Mills", "label": "ORG", "start_char": 17039, "end_char": 17058, "source": "ner", "metadata": {"in_sentence": "It is against this order passed by the High Court on the 30th and 31st March, 1960, that the appellant has come to this Court with a certificate granted by the High Court; and on its behalf, Mr. Palkhivala has urged c that in view of the decisions of this Court in the New J ehangir Mills(') case and Petlad Co.(2) case, the appeal must be allowed and the case remitted to the High Court to be dealt with in accordance with the principles laid down by this Court in the latter case."}}, {"text": "Petlad Co.(2)", "label": "ORG", "start_char": 17071, "end_char": 17084, "source": "ner", "metadata": {"in_sentence": "It is against this order passed by the High Court on the 30th and 31st March, 1960, that the appellant has come to this Court with a certificate granted by the High Court; and on its behalf, Mr. Palkhivala has urged c that in view of the decisions of this Court in the New J ehangir Mills(') case and Petlad Co.(2) case, the appeal must be allowed and the case remitted to the High Court to be dealt with in accordance with the principles laid down by this Court in the latter case."}}, {"text": "s. 66( 1)", "label": "PROVISION", "start_char": 17513, "end_char": 17522, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 17823, "end_char": 17828, "source": "regex", "metadata": {"statute": null}}, {"text": "New Jehangir Mills", "label": "ORG", "start_char": 18323, "end_char": 18341, "source": "ner", "metadata": {"in_sentence": "The first decision on which Mr. Palkhivala relies is the New Jehangir Mills(') case."}}, {"text": "Bhavnagar", "label": "GPE", "start_char": 18475, "end_char": 18484, "source": "ner", "metadata": {"in_sentence": "In that case, the question which was G referred by the Tribunal to the High Court was whether the receipt of the cheques in Bhavnagar amounted to receipt of saleproceeds in Bhavnagar."}}, {"text": "(1960] 1 S. C.R. 249", "label": "CASE_CITATION", "start_char": 18808, "end_char": 18828, "source": "regex", "metadata": {}}, {"text": "s. 66", "label": "PROVISION", "start_char": 19732, "end_char": 19737, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 19923, "end_char": 19928, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 19973, "end_char": 19978, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 20002, "end_char": 20007, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 20017, "end_char": 20022, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 20299, "end_char": 20307, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 20480, "end_char": 20485, "source": "regex", "metadata": {"statute": null}}, {"text": "Palkfilvala", "label": "OTHER_PERSON", "start_char": 20663, "end_char": 20674, "source": "ner", "metadata": {"in_sentence": "Mr. Palkfilvala contends F that in the light of the decision, we ought to hold that in so far as the two orders of reinand passed by the High Court in the present Reference proceedings have led to the collection of additional material and evidence and their inclusion in the supplementary statemCQts of the case, the High Court has exceeded its jurisdiction under s. 66 ( 4).", "canonical_name": "Palkfilvala"}}, {"text": "s. 66", "label": "PROVISION", "start_char": 21023, "end_char": 21028, "source": "regex", "metadata": {"statute": null}}, {"text": "Pet/ad Co. Ltd.", "label": "ORG", "start_char": 21130, "end_char": 21145, "source": "ner", "metadata": {"in_sentence": "G The other case on which Mr. Palkhivala strongly relies is the decision of this Court in the Pet/ad Co. Ltd.(')·."}}, {"text": "s. 66( 4)", "label": "PROVISION", "start_char": 21287, "end_char": 21296, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66( 4)", "label": "PROVISION", "start_char": 21656, "end_char": 21665, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 21949, "end_char": 21954, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 21996, "end_char": 22001, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 22165, "end_char": 22173, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66( 5)", "label": "PROVISION", "start_char": 22616, "end_char": 22625, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India", "label": "ORG", "start_char": 23084, "end_char": 23103, "source": "ner", "metadata": {"in_sentence": "In this latter case, the question referred to the High Court for its decision was whether on the facts and circumstances of the case, the profits and gains in respect of the sales J: made to the Government of India were received by the assessee in the taxable territories ?"}}, {"text": "Ogale Glass Works", "label": "ORG", "start_char": 24005, "end_char": 24022, "source": "ner", "metadata": {"in_sentence": "While dealing with this objection raised by the appellant, this Court held that the question as it was framed, was wide enough to include an enquiry as to whether G there was any request, express or implied, that the amount of the bills be paid by cheques so as to bring the matter within the dicta of this Court in the Ogale Glass Works(') case or in Shri Jagdish Mills Ltd. v. The Commissioner of lncome-t~. Bombay North, Kutch and Saurashtra, Ahmedabad(6 ) and since it did not appear H\n\n(I) [1960] I S. C. R. 249."}}, {"text": "Gajndmgllllkar", "label": "JUDGE", "start_char": 24341, "end_char": 24355, "source": "ner", "metadata": {"in_sentence": "Kl!SHAV MU.LS v. C.I; T. {Gajndmgllllkar, C.J.) 917\n\nA ftoJn die ."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 25574, "end_char": 25579, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 26129, "end_char": 26137, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 26264, "end_char": 26269, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 27379, "end_char": 27384, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 27795, "end_char": 27800, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 28029, "end_char": 28034, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 28907, "end_char": 28931, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "February 12, 1933", "label": "DATE", "start_char": 29011, "end_char": 29028, "source": "ner", "metadata": {"in_sentence": "The question of law formulated for the decision of the High Court was : \"In all F the circumstances of the case, having regard to the personal law governing the assessee and the requirements of the Transfer of Property Act (IV of 1882) and the Stamp Act (II of 1899), has the deed of partnership dated February 12, 1933, brought into existence a genuine firm entitled to registration under the provisions of s. 26-A of the Act?\""}}, {"text": "s. 26", "label": "PROVISION", "start_char": 29117, "end_char": 29122, "source": "regex", "metadata": {"statute": null}}, {"text": "KBSHAV MILLS", "label": "JUDGE", "start_char": 29650, "end_char": 29662, "source": "ner", "metadata": {"in_sentence": "KBSHAV MILLS \\I, C.LT. ("}}, {"text": "section 66", "label": "PROVISION", "start_char": 30692, "end_char": 30702, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 31086, "end_char": 31091, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66( 4)", "label": "PROVISION", "start_char": 31679, "end_char": 31688, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 31816, "end_char": 31824, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 31828, "end_char": 31836, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 32206, "end_char": 32220, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 4(3)(1)", "label": "PROVISION", "start_char": 32276, "end_char": 32286, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 32778, "end_char": 32782, "source": "regex", "metadata": {"statute": null}}, {"text": "July 29, 1937", "label": "DATE", "start_char": 32896, "end_char": 32909, "source": "ner", "metadata": {"in_sentence": "Accordingly, by an Order in Council, dated July 29, 1937, it was directed in accordance with the advice B tendered by the Board that tho case ought to be remitted to the High Court of Judicature at Lahore with a direction that the said High Court shall refer the case back to the Commissioner under s. 66(4), first for tho addition of such facts during tho life-time of tho testator Sardar Dayal Singh as may bear upon the proper intoiprctation of tho expression 'keoping up the liberal policy of c the said newspaper' in clallSO XXI of the will of tho said testator datod the 15th Day of Juno, 1895, and sccondty, for the addition of such facts as to a compromise dated the 1st day of Doccmber, 1906, as may show whether the said compromiso is binding on all parti.os interested in the estate of the said testator."}}, {"text": "High Court of Judicature at Lahore", "label": "COURT", "start_char": 33023, "end_char": 33057, "source": "ner", "metadata": {"in_sentence": "Accordingly, by an Order in Council, dated July 29, 1937, it was directed in accordance with the advice B tendered by the Board that tho case ought to be remitted to the High Court of Judicature at Lahore with a direction that the said High Court shall refer the case back to the Commissioner under s. 66(4), first for tho addition of such facts during tho life-time of tho testator Sardar Dayal Singh as may bear upon the proper intoiprctation of tho expression 'keoping up the liberal policy of c the said newspaper' in clallSO XXI of the will of tho said testator datod the 15th Day of Juno, 1895, and sccondty, for the addition of such facts as to a compromise dated the 1st day of Doccmber, 1906, as may show whether the said compromiso is binding on all parti.os interested in the estate of the said testator."}}, {"text": "s. 66(4)", "label": "PROVISION", "start_char": 33152, "end_char": 33160, "source": "regex", "metadata": {"statute": null}}, {"text": "Sardar Dayal Singh", "label": "OTHER_PERSON", "start_char": 33236, "end_char": 33254, "source": "ner", "metadata": {"in_sentence": "Accordingly, by an Order in Council, dated July 29, 1937, it was directed in accordance with the advice B tendered by the Board that tho case ought to be remitted to the High Court of Judicature at Lahore with a direction that the said High Court shall refer the case back to the Commissioner under s. 66(4), first for tho addition of such facts during tho life-time of tho testator Sardar Dayal Singh as may bear upon the proper intoiprctation of tho expression 'keoping up the liberal policy of c the said newspaper' in clallSO XXI of the will of tho said testator datod the 15th Day of Juno, 1895, and sccondty, for the addition of such facts as to a compromise dated the 1st day of Doccmber, 1906, as may show whether the said compromiso is binding on all parti.os interested in the estate of the said testator."}}, {"text": "1st day of Doccmber, 1906", "label": "DATE", "start_char": 33528, "end_char": 33553, "source": "ner", "metadata": {"in_sentence": "Accordingly, by an Order in Council, dated July 29, 1937, it was directed in accordance with the advice B tendered by the Board that tho case ought to be remitted to the High Court of Judicature at Lahore with a direction that the said High Court shall refer the case back to the Commissioner under s. 66(4), first for tho addition of such facts during tho life-time of tho testator Sardar Dayal Singh as may bear upon the proper intoiprctation of tho expression 'keoping up the liberal policy of c the said newspaper' in clallSO XXI of the will of tho said testator datod the 15th Day of Juno, 1895, and sccondty, for the addition of such facts as to a compromise dated the 1st day of Doccmber, 1906, as may show whether the said compromiso is binding on all parti.os interested in the estate of the said testator."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 34484, "end_char": 34489, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66( 4)", "label": "PROVISION", "start_char": 34693, "end_char": 34702, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(4)", "label": "PROVISION", "start_char": 35013, "end_char": 35021, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 37332, "end_char": 37337, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 141", "label": "PROVISION", "start_char": 37973, "end_char": 37981, "source": "regex", "metadata": {"statute": null}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 41273, "end_char": 41285, "source": "ner", "metadata": {"in_sentence": "Hidayatullah and Mudholkar, JJ."}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 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{"statute": null}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 47402, "end_char": 47410, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(4)", "label": "PROVISION", "start_char": 47665, "end_char": 47673, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 31(2)", "label": "PROVISION", "start_char": 48003, "end_char": 48011, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 31", "label": "PROVISION", "start_char": 48174, "end_char": 48184, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 48407, "end_char": 48412, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 49437, "end_char": 49442, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 31(2)", "label": "PROVISION", "start_char": 49677, "end_char": 49685, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 49862, "end_char": 49870, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66( 4)", "label": "PROVISION", "start_char": 50232, "end_char": 50241, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(4)", "label": "PROVISION", "start_char": 50281, "end_char": 50289, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(4)", "label": "PROVISION", "start_char": 50533, "end_char": 50541, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(4)", "label": "PROVISION", "start_char": 51025, "end_char": 51033, "source": "regex", "metadata": {"statute": null}}, {"text": "Jehangir Mills", "label": "ORG", "start_char": 51369, "end_char": 51383, "source": "ner", "metadata": {"in_sentence": "These mainly are the grounds on which the earlier decisions of this Court in the New\n\nKESHAV MILLS v. C.I.T. (Gaiendragadkar, C./.) 927\n\nA Jehangir Mills(') case and the Pet/ad Co. Ltd. (2) case substantially rest."}}, {"text": "s. 66(4)", "label": "PROVISION", "start_char": 51508, "end_char": 51516, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66( 4)", "label": "PROVISION", "start_char": 51713, "end_char": 51722, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 51811, "end_char": 51819, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66( 4)", "label": "PROVISION", "start_char": 51923, "end_char": 51932, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 52079, "end_char": 52084, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66( 4)", "label": "PROVISION", "start_char": 52139, "end_char": 52148, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66( 4)", "label": "PROVISION", "start_char": 52435, "end_char": 52444, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(4)", "label": "PROVISION", "start_char": 53486, "end_char": 53494, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68(4)", "label": "PROVISION", "start_char": 54589, "end_char": 54597, "source": "regex", "metadata": {"statute": null}}, {"text": "May 12, 1959", "label": "DATE", "start_char": 55254, "end_char": 55266, "source": "ner", "metadata": {"in_sentence": "The said earlier view has been followed by this Court on several occasions and has regulated the procedure in reference proceedings in the High Courts in this country ever since the decision of this Court in the New /ehangir Mills(') was pronounced on May 12, 1959."}}, {"text": "s. 66(4)", "label": "PROVISION", "start_char": 55401, "end_char": 55409, "source": "regex", "metadata": {"statute": null}}, {"text": "New I ehangir Mills", "label": "ORG", "start_char": 56077, "end_char": 56096, "source": "ner", "metadata": {"in_sentence": "In the result, the order passed by the High Court is set aside and the matter is sent back to the High Court with a dir1:ction that the High Court should deal with it in the light of F the two relevant decisions in the New I ehangir Mills ( 1) and the Petlad Co. Ltd.(')."}}, {"text": "Petlad Co. Ltd.", "label": "ORG", "start_char": 56110, "end_char": 56125, "source": "ner", "metadata": {"in_sentence": "In the result, the order passed by the High Court is set aside and the matter is sent back to the High Court with a dir1:ction that the High Court should deal with it in the light of F the two relevant decisions in the New I ehangir Mills ( 1) and the Petlad Co. Ltd.(')."}}]}
{"document_id": "1965_2_929_933_EN", "year": 1965, "text": "BOMBAY MUNICIPAL CORPORATION\n\nDHONDUNARAYANCHOWDHARY\n\nFebruary 8, 1965 [P. B. GAJENDRAGADKAR, C.J., M. llIDAYATULLAH, J. c. SHAH\n\nAND s. M. SIICRI, JJ .] Bombay City Corporation A.ct, s. 6S-Commbsk>ner empowered to d•l•gat• hi.r judicial functions und<r Chapter YJ-A.-Pow•r1 delegated subject to Commi.rsionet's 'contror and 'subject to his rl!Vlston'-Delegation whether proper.\n\nOne C a tenant o! a Chaw! belonging to the Municipal Corporation of Bombay died, and his widow on whom the tenancy devolved, took in a boarder.\n\nProceedings by the Corporation under Chapter VI-A of the Municipal Corporation Act for their ejectment were initiated by an otllcer to whom the commissioner had delegated his powers under s. 68 of the Act.\n\nAfter due enquiry the officer passed an order evicting C's widow and her boarder. In an al'peal filed under s. IOSF of the Act before the Bombay City Ci\\il Court it was held that the delegation of the Commiasioner's power was not proper inasmuch as the judicial functions of the Commissioner undet ss. 1 OSB to IOSE had been delegated to be exercised under the Commissioner's control and subject to his revision, and consequently the order of ejectment was without jurisdiction. The Corporation appealed, by special leave, to the Supreme Court. No question as to the validity of the law was raised.\n\nIt was only contended that judicial power was delegated with administrative control over the delegates decision.\n\nHELD : (i) Section 68 was originally intended to cover very erent matters because Chapter VI-A could not then have been in contemplation.\n\nWhen Chapter VI-A was added and a reference to ss. IOSB to IOSE was included in s. 68, the wording of that section became applicable to the powers exercisable under ss. I OSB to I OSE, even though that wordina. taken literally, is somewhat inapt to cover delegation of judicial power. [932 DJ\n\n(ii) To the delegation of judicial power as such there can be no objection when the law either expressly or by necessary implicaon permits it. In the present case the amendment of s. 68 by inclusion of the delegation of the function of the Commissioner under \"' I OSB to 1 OSB does indicate the intention that the judicial and quasi-judicial power1 contained in Chapter VI-A were expressly intended to be delegated. The words\n\n11the Commissioner's control\" and \"subject to his revision\" in s. 68, as well as in order of delegation, are really appropriate to a delegation of administrative functions.\n\nThey must be reasonably conatrued.\n\nIn respect of judicial or quasi-judicial functions these words cannot bear the meaning which they bear in the delegation of administrative functions.\n\nWhen the Commissioner stated that his functions were delegated subject to his control and revision it did not mean that he reserved to himself the right to intervene to impose his own decision upon his delegate. Tht -control envisaged was not control over the decision as such but over the administrative aspects of cases and their disposal and the delegstion was valid.\n\n[932 F-933 BJ The order of the Bombay City Civil Court could not therefore be sustained.\n\nCML APPELLATE JURISDICTION : Civil Appeal No. 865 of 1964.\n\nSUPRBMB COURT REPORTS\n\n[1965] 2 S.C.R.\n\nAppeal by special leave from the judgment and order dated A February 14, 1964 of the Bombay City Civil Court at Bombay in Appeal No. 86 of 1963.\n\nM. C. Setalvad, J.B. Dadachanji, 0. C. Mathur and Ravinder Naraln, for the appellant.\n\nB. K. Bhattacharjee and S. N. Mukherjee, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nHidayatullah,_ J. In this appeal by special leave against the judgment and order of the Principal Judge, City Civil Court, Bombay dsited February 14, 1964, the only question is whether the C delegationby the Commissioner, Municipal Corporation of his functions under ss. I OSB to 1 OSE to certain officers of the Corporation was valid and proper. This question arises in the following circumstances :\n\nOne Govind Harl was a monthly tenant of room No. 23 of a chaw/ D at Chandanwadi. After his death in 1961 the tenancy devolved on his widow Anusuyabai, who took in a boarder. The chaw/ belonged to the Municipal Corporation and proceedings were taken to eject Anusuyabai and the boarder under Chapter VI-A of the Municipal Corporation Act. These proceedings were initiated by one of the officers to whom the powers of the Commissioner were E delegated by him under s. 68 of the Act. After due enquirY the officer passed an order evicting these persons.\n\nAn appeal was filed under s. 105F of the Act before the Bombay City Civil Court.\n\nIn that appeal it was held that the delegation was not proper inasmuch as the judicia!functions of the Commissioner under ss. 105B F to 105E had been delegated to be exercised under the Commissioner's control and subject to his revision.\n\nThe learned Judge pointed out that judicial or quasi-judicial power could not ordinarily be delegated and, in any event, it could not be delegated so that the control over the decision was kept by the Commissioner.\n\nHe, therefore, held that the officer who had passed the order was G not properly invested with jurisdiction and the order was thus a nullity.\n\nThe Bombay Municipal Corporation Act is an Act of 1888 and it has been amended frequently. Section 68 is one of the original sections and it provides as Jollows :\n\n\"68. Municipal officers may be ompowered to exercise certain of the powers, etc. of the Commissioner.\n\n. I\n\n( 1 ) Any of the powers, duties or functions conferred or imposed upon or vested in the Commissioner by any of the sections, sub-sections or clauses mentioned in sub-section (2) may be exercised, performed or discharged, under the Commissioner's control and subject to his revision and to such conditions and limitations, if any, as he shall think fit to prescribe, by any municip11l officer whom the Commissioner generally or specially either by name or by virtue of office, empowers in writing in this behalf; and in each of the said sections, sub-sections and clauses the word \"Commissioner\" shall, to the exlent to which any municipal officer is so empowered, be deemed to include such officer.\n\n( 2) The sections, sub-sections and clauses of this Act referred to in sub-section ( 1) are the following namely:-\n\n·: ...\n\nSection 105B.\n\n105C. . ,\n\n105D .\n\n105E.\n\nA reference to ss. 105B, 105C, 105D and 105E was inserted by the Maharashtra Act XIV of 1961. These sections are in Chap- F ter 6A which was also newly added by the same Act. It is not necessary to refer to these sections, except a portion from s. 105B which brings into prominence the action taken by the Corporation against the respondents :\n\n\"105B. Power to evict person from corporation premises.\n\n(1) Where the Commissioner is satisfied-\n\n(a) that the person authorised to occupy any corporation premises has, whether before or after the commencement of the Bombay Municipal Corporation (Amendment) Act, 1960,-\n\n(i) . l•J l•l\n\n932 SUPJ.l!MI! COUJl.T Rl!POllTS\n\n[ 1965] 2 S.C.R.\n\n(ii) sub-Jet, contrary to the terms or conditions of his occupation, the whole or any part of such premises; or\n\nthe Commissioner may notwithstanding anything contained in any Jaw for the time being in force, by notice . . . . order that that person, as well as any other person who may be in occupation of the whole\n\nor any part of the premises, shall yacate them within one month of the date of the service of the notice.\"\n\nIt will be noticed that s. 68 was originally intended to cover very different matters because Chapter 6A could not have been in contemplation. When Chapter 6A was added and a reference to\n\nss. I 05B to I 05E was included in s. 68, the wording of that section D became applicable to the powers exercisable under ss. I 05B to 105E, even though that wqrding, taken literally, is somewhat inapt to cover delegation of judicial power.\n\nNo question has been raised that any of the amendments is ultra vires so the words of s. 68 must be reasonably construed. It E goes without saying that judicial power cannot ordinarily be delegated unless the law expressly or by clear implication permits it. 4 In the present case the amendment of s. 68 by inclusion of delegation of the functions of the Commissioner under ss. 105B to 105E docs indicate the intention that the judicial or quasi-judicial powers contained in Chapter VIA were expressly intended to be F delegated. To the delegation as such there can be no objection.\n\nWhat is objected to is the provision, both in the section as well as in the order of delegation, that the exercise of the function is to be under \"the Commissioner's control\" and \"subject to his revision\".\n\nThese words are really appropriate to a delegation of administrative functions where the control may be deeper than ii:t G judicial matters. In respect of judicial or quasi-judicial functions these words cannot of course bear the meaning which they bear in the delegation of administrative functions. When the Commissioner stated that his functions were delegated subject to his control and revision it did not mean that he reserved to himself the right to intervene to impose his own decision upon his delegate. What those H words meant was that the Commissioner could control the exercise administratively as to the kinds of cases in which the delegate ,-\n\ncould take action or the period or time during which the power might be exercised and so on and so forth. In other words, the administrative side of the delegate's duties were to be the subject of control and revision but not the essential power to decide whether to take action or not in a particular case. This is also the intention of s. 68 as interpreted in the context of the several delegated powers. This is apparent from the fact that the order of the delegate amounts to an order by the Commissioner and is appealable as such. If it were not so the appeal to the Bombay City Civil Court would be incompetent and the order could not be assailed.\n\nThe order of the delegate was the order ot the Commissioner and C the control envisaged both in s. 68 and the order of delegation was not control over the decision as such but over the administrative aspects of cases and their disposal. No allegation has been made that the Commissioner intervened in the decision of the case or improperly influenced it. In these circumstances the order impugned in the appeal cannot be sustained.\n\nD We allow the appeal and set aside the order of the Bombay\n\nCity Civil Court and restore the order of the officer who exercised powers under s. 1 OSB of the Act, but make no order about costs.\n\nAppeal allowed.", "total_entities": 45, "entities": [{"text": "CORPORATION\n\nDHONDUNARAYANCHOWDHARY", "label": "RESPONDENT", "start_char": 17, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "DHONDU NARAYAN CHOWDHARY", "offset_not_found": false}}, {"text": "February 8, 1965", "label": "DATE", "start_char": 54, "end_char": 70, "source": "ner", "metadata": {"in_sentence": "BOMBAY MUNICIPAL CORPORATION\n\nDHONDUNARAYANCHOWDHARY\n\nFebruary 8, 1965 [P. B. GAJENDRAGADKAR, C.J., M. llIDAYATULLAH, J. c. SHAH\n\nAND s. M. SIICRI, JJ .]"}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 72, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "c. SHAH", "label": "JUDGE", "start_char": 121, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Bombay City Corporation", "label": "ORG", "start_char": 154, "end_char": 177, "source": "ner", "metadata": {"in_sentence": "Bombay City Corporation A.ct, s. 6S-Commbsk>ner empowered to d•l•gat• hi.r judicial functions und<r Chapter YJ-A.-Pow•r1 delegated subject to Commi.rsionet's 'contror and 'subject to his rl!Vlston'-Delegation whether proper."}}, {"text": "s. 6S", "label": "PROVISION", "start_char": 184, "end_char": 189, "source": "regex", "metadata": {"statute": null}}, {"text": "Proceedings by the Corporation under Chapter VI-A of the Municipal Corporation Act", "label": "STATUTE", "start_char": 525, "end_char": 607, "source": "regex", "metadata": {}}, {"text": "s. 68", "label": "PROVISION", "start_char": 713, "end_char": 718, "source": "regex", "metadata": {"linked_statute_text": "Proceedings by the Corporation under Chapter VI-A of the Municipal Corporation Act", "statute": "Proceedings by the Corporation under Chapter VI-A of the Municipal Corporation Act"}}, {"text": "Bombay City Ci\\il Court", "label": "COURT", "start_char": 870, "end_char": 893, "source": "ner", "metadata": {"in_sentence": "In an al'peal filed under s. IOSF of the Act before the Bombay City Ci\\il Court it was held that the delegation of the Commiasioner's power was not proper inasmuch as the judicial functions of the Commissioner undet ss."}}, {"text": "ss. 1", "label": "PROVISION", "start_char": 1030, "end_char": 1035, "source": "regex", "metadata": {"linked_statute_text": "Proceedings by the Corporation under Chapter VI-A of the Municipal Corporation Act", "statute": "Proceedings by the Corporation under Chapter VI-A of the Municipal Corporation Act"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 1262, "end_char": 1275, "source": "ner", "metadata": {"in_sentence": "The Corporation appealed, by special leave, to the Supreme Court."}}, {"text": "Section 68", "label": "PROVISION", "start_char": 1457, "end_char": 1467, "source": "regex", "metadata": {"linked_statute_text": "Proceedings by the Corporation under Chapter VI-A of the Municipal Corporation Act", "statute": "Proceedings by the Corporation under Chapter VI-A of the Municipal Corporation Act"}}, {"text": "IOSE", "label": "RESPONDENT", "start_char": 1644, "end_char": 1648, "source": "ner", "metadata": {"in_sentence": "IOSB to IOSE was included in s. 68, the wording of that section became applicable to the powers exercisable under ss."}}, {"text": "s. 68", "label": "PROVISION", "start_char": 1665, "end_char": 1670, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 2059, "end_char": 2064, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 2369, "end_char": 2374, "source": "regex", "metadata": {"statute": null}}, {"text": "M. C. Setalvad", "label": "LAWYER", "start_char": 3375, "end_char": 3389, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, J.B. Dadachanji, 0."}}, {"text": "J.B. Dadachanji", "label": "LAWYER", "start_char": 3391, "end_char": 3406, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, J.B. Dadachanji, 0."}}, {"text": "0. C. Mathur", "label": "LAWYER", "start_char": 3408, "end_char": 3420, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, J.B. Dadachanji, 0."}}, {"text": "Ravinder Naraln", "label": "LAWYER", "start_char": 3425, "end_char": 3440, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Naraln, for the appellant."}}, {"text": "B. K. Bhattacharjee", "label": "LAWYER", "start_char": 3462, "end_char": 3481, "source": "ner", "metadata": {"in_sentence": "B. K. Bhattacharjee and S. N. Mukherjee, for the respondent."}}, {"text": "S. N. Mukherjee", "label": "LAWYER", "start_char": 3486, "end_char": 3501, "source": "ner", "metadata": {"in_sentence": "B. K. Bhattacharjee and S. N. Mukherjee, for the respondent."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 3568, "end_char": 3580, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayatullah,_ J. In this appeal by special leave against the judgment and order of the Principal Judge, City Civil Court, Bombay dsited February 14, 1964, the only question is whether the C delegationby the Commissioner, Municipal Corporation of his functions under ss.", "canonical_name": "M. HIDAYATULLAH"}}, {"text": "City Civil Court, Bombay", "label": "COURT", "start_char": 3673, "end_char": 3697, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayatullah,_ J. In this appeal by special leave against the judgment and order of the Principal Judge, City Civil Court, Bombay dsited February 14, 1964, the only question is whether the C delegationby the Commissioner, Municipal Corporation of his functions under ss."}}, {"text": "Govind Harl", "label": "OTHER_PERSON", "start_char": 3974, "end_char": 3985, "source": "ner", "metadata": {"in_sentence": "This question arises in the following circumstances :\n\nOne Govind Harl was a monthly tenant of room No."}}, {"text": "Chandanwadi", "label": "GPE", "start_char": 4038, "end_char": 4049, "source": "ner", "metadata": {"in_sentence": "23 of a chaw/ D at Chandanwadi."}}, {"text": "Anusuyabai", "label": "OTHER_PERSON", "start_char": 4109, "end_char": 4119, "source": "ner", "metadata": {"in_sentence": "After his death in 1961 the tenancy devolved on his widow Anusuyabai, who took in a boarder."}}, {"text": "s. 68", "label": "PROVISION", "start_char": 4433, "end_char": 4438, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 105F", "label": "PROVISION", "start_char": 4548, "end_char": 4555, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay City Civil Court", "label": "COURT", "start_char": 4578, "end_char": 4601, "source": "ner", "metadata": {"in_sentence": "An appeal was filed under s. 105F of the Act before the Bombay City Civil Court."}}, {"text": "ss. 105B", "label": "PROVISION", "start_char": 4726, "end_char": 4734, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 68", "label": "PROVISION", "start_char": 5293, "end_char": 5303, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 105B", "label": "PROVISION", "start_char": 6298, "end_char": 6310, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 105B, 105C, 105D and 105E", "label": "PROVISION", "start_char": 6354, "end_char": 6383, "source": "regex", "metadata": {"statute": null}}, {"text": "Maharashtra Act XIV of 1961", "label": "STATUTE", "start_char": 6404, "end_char": 6431, "source": "regex", "metadata": {}}, {"text": "s. 105B", "label": "PROVISION", "start_char": 6584, "end_char": 6591, "source": "regex", "metadata": {"linked_statute_text": "Maharashtra Act XIV of 1961", "statute": "Maharashtra Act XIV of 1961"}}, {"text": "s. 68", "label": "PROVISION", "start_char": 7473, "end_char": 7478, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 7673, "end_char": 7678, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 7966, "end_char": 7971, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 8178, "end_char": 8183, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 105B to 105E", "label": "PROVISION", "start_char": 8254, "end_char": 8270, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 9668, "end_char": 9673, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 68", "label": "PROVISION", "start_char": 10081, "end_char": 10086, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay\n\nCity Civil Court", "label": "COURT", "start_char": 10471, "end_char": 10495, "source": "ner", "metadata": {"in_sentence": "D We allow the appeal and set aside the order of the Bombay\n\nCity Civil Court and restore the order of the officer who exercised powers under s. 1 OSB of the Act, but make no order about costs."}}, {"text": "s. 1", "label": "PROVISION", "start_char": 10560, "end_char": 10564, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_2_934_947_EN", "year": 1965, "text": "SRI LA SRI SUBRAMANIA DESIGA GNANASAMBANDA A\n\nPANDARA SANNADHI, TRUSTEE OF SRI VAIDYANA\n\nTHASWAMI TEMPLE, VAITHEESWARANKOIL\n\nSTATE OF MADRAS\n\nFebruary 8, 1965 (K. SUBBA RAo, RAGHUBAR DAYAL, J. R. MUDHOLKAR,\n\nR. S. BACHAWAT AND V. RAMASWAMI, JJ.)\n\nMadras Hindu Religious & Charitable Endowments Act (XIX of 1951 )-High Court framing scheme for administration of temple providing for appointment of Executive Officer-Whether such appointment C can be made where mismanagement not proved-whether CommissioneY1 advice decisive or court•to decide on facts of each case.\n\nBy virtue of a scheme framed by the Madras High Court in 1919, the administration of a temple was placed in the hands of the )<:altali Thambiran to be appointed by the appellant in his capacity as the trustee.\n\nIn June 1951, the Commissioner, Hindu Religious and Charitable Endowments, Madras, filed a petition under s. 62(3) (a) of the Madras D Hindu Religious and Charitable Endowments Act, 1951, (Act No. XIX of 1951 ( in the court of the Sub-Judge, for the modification of the 1919 scheme.\n\nThe petition contained various allegations of mismanagement and of the full income of the temple not having been secured and safeguarded; this was stated to be attributable mainly to defective machinery set up under the 1919 scheme and it was suggested that an executive officer should be apPointed to undertake the administration of the temple.\n\nE The Subordinate Judge found that the petitioner had not substantiated any of the allegations made against the trustees and no case had been made out for amending the 1919 scheme so as to provide for the appointment of an Executive Officer.\n\nIn a:meal, although the respondent State did not question the finding of the lower court that there was no proof of mismanagement, the High Court modified the scheme by introducing the suggested provision for the appointment of an Executive Officer and by providing for the appointment of additional trustees, if necessary.\n\nIt was contended on behalf of the appellant that the High Court, having agreed with the Subordinate Judge that the Commissioner had failed to establish any of the charges levelled by him aginst <he Trustee. erred in modifying the 1919 scheme as above.\n\nOn the other hand, it was urged by the State that under the Act a scheme for administration of a temple could be framed or an earlier scheme amended not only when there was misoJanagement by the Trustee, but also so as to provide for a better administration of the temple. Furthermore the Commissioner was empovvcred to frame a scheme if he considered this desirab1e for the proper administration of a religious inStitution and his opinion in this\n\nregard must be given decisive weight by the court when amending a scheme. In the present case, in view of the fact that the temple owned extensive immovable properties, some of which were required to be sold. and there were many other complicated problems connected with the administration of the temple requiring attention, it was necessary to appoint a trained Executive Officer in the best interest of the temple;\n\n. '\n\nSUBllAMANIA DESIGA v. STATE (Subba Rao, I.) 93$\n\nHELD: (i) A consideration of the scheme of the Act showed there was no justification for the contention that a court should accept without scrutiny the view of the Deputy Commissioner that the scheme required modification in the manner suggested by him and that the formal impri matur of the court was all that was contemplated by the Act. While a court should have due regard to the views ot the Commissioner wh'O is in close touch with the administration of temples, it could not be held that the court was relieved of its duty of asce:taining the oecessity for framing a scheme or to consider the propriety or advisibility of the various clauses of a scheme. In framing a scheme the Deputy Commissioner and in a suit or application for amendment of a scheme the Court, will mould the relief under s. 58(2) having regard to the circumstances of each case. [939 H-940 A-CJ\n\n(ii) The Deputy Commissioner, the Commissioner, or the Court, as the case may be, is not bound, in framing a scheme, to appoint an exec cutive officer in every case; a case must be made out for such appoint meot. [940 GJ\n\n(iii) In the present case the proposed executive officer would have the entire administration of the temple with hardly any power left to the trustee. Such a drastic provision might be necessary where the temple was mismanaged or there were other compelling circumstances requiring such an appointment. But in view of the concurrent finding of fact that the Commissioner had failed to establish and of the charges against the trustee. it could not be held that a case had been made out for the appointment of an Executive Officer to practically displace the trustee.\n\nFurthermore, there wa~ no material before the court to ascertain the complicated nature of the problems of administration requiring the attention of an executive officer, and in any event the Commisioner had ample powers under the Act to issue orders or give appropriate advice to the trustee. [944 E-G; 945 A-BJ\n\n(iv) The proposed provision in the scheme only conferred a power to appoint additional trustees and did not direct their appointment In presenti or even in future; such a power was a1so available to the Com• missioner under s. 39 and the appellant was not therefore in any way prejudiced by this provision. [945 E-F]\n\n(v) Although the Commissioner was given wider powers in resoect of the appointment of an Eexecutive Officer under the Madras Act XXU of 1959. as the suit in the present case was filed in 1951 i.e. before the coming into force of that Act, the appeal had to be decided on the basis of circumstances prevailing in 1951. [945 HJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 272 of 1963.\n\nAppeal from the , iudgment and decree dated February 7, 1958 of the Madras High Court in Appeal Suit No. 318 of 1954.\n\nA. V. Viswanatha Sastri and Naunit Lal, for the appellant.\n\nA. Ranr?anatham Chetty, A. Vedavalli and A .V. Rangam, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nSubba Rao, J.\n\nSri Vaidyanathaswami Temple at V aitheeswaranlcoil, Sirkali Taluk, Thanjavur District, Madras State, is an\n\nSUPREME COURT REPORTS\n\n[1965) 2 S.C.R.\n\nancient and famous Siva temple.\n\nIt owns a large extent of im- A movable property and it is said that its annual income is more than Rs. 2 lakhs. In 1842 the British Government, which was then administering the temple, handed over its management to the Pandarasannadhi of Dharmapuram Adhinam.\n\nSince then the said .Pandarasannadhi has been managing the same through one of his selected disciples, a Kattalai Thambiran. In the year 1919, B the High Court of Madras framed a scheme for the administration of the said temple in A.S. No. 181 of 1917. The said scheme provided, among others, that the administration of the temple shoDI be in the bands of the Kattalai Thambiran appointed by the Pandarasannadhi, and that he should be assisted by a treasurer, C a shroff and an auctioneer who was to be appointed once in 3 years by the Court.\n\nThe Madras Legislature passed Act IT of 1927 providing for the good administration of temples and their endowments. The Religious Endowments Board functioning under the said Act, presumably because the administration of the temple in question was satisfactory, did not take any steps to have the scheme D framed by the High Court in 1919 modified under the said Act.\n\nThat Act was substituted by The Madras Hindu Religious and Charitable Endowments Act, 1951 (Act No. XIX of 1951), hereinafter called the Act.\n\nOn June 16, 1951, the Commissioner, Hindu Religious and Charitable Endowments, Madras, filed a petition in the Court of the Subordinate Judge, Mayuram, under E s. 62(3a) of the Act for modifying the scheme framed by the High Court. In the petition the Commissioner, after alleging various acts of commission and omission by the Trustee and his subordinates in the management of the temple and pointing out the defects in the earlier scheme, averred that the full income of the Devasthanam had not been secured and safeguarded and that F that was attributable mainly to the defective machinery set up under the scheme for the administration of the temple. The most important of the modifications suggested to the scheme was that an Executive Officer should be appointed in the place of the Kattalai Thambiran and the Treasurer, conferring large powers on him for the day-to-day administration of the temple.\n\nThe Pandarasan- G nadhi filed a counter-affidavit denying all the allegations made against the management of the temple and asserting that he had functioned in terms of the scheme and had piloted the temple through . difficult tinies successfully.\n\nThe learned Subordinate Judge, after considering the entire material placed .before him, came to the conCiusion that the petitioner had not substantiated H\n\nany of the allegations made against the Trustee and that no case had been 11111de out for amending the scheme and for the appoint-\n\nSUBRAMANIA DESIGA v. STATE (Subba Rao, J.) 937\n\nA ment of an Executive Officer.\n\nIn the result he dismissed the petition.\n\nThe State of Madras, represented b_y the Commissioner of Hindu Religious and Charitable Endowments, Madras, preferred an appeal against the said order to the High Court of Madras.\n\nThe said appeal came up before a Division Bench of the High\n\nCourt. In the High Court the learned Government pleader appearing for the State did not question the correctness of the finding given by the learned Subordinate Judge that there was no proof of mismanagement of any kind by the Pandarasannadhi or the Kattalai Thambiran.\n\nThe learned Counsel for the Pandarasannadhi had no objection for making formal amendments to the scheme, which became necessary due to lapse of time and due to the passing of the Act.\n\nAfter hearing the parties, the High Court modified the scheme introducing the controversial provision, viz., the appointment of an Executive Officer.\n\nIn the result, the order of the Subordinate Judge was set aside and the scheme made by the High Court in 1919 was modified.\n\nThis appeal has been D filed, on a certificate issued by the High Court, against the said decree of the High Court.\n\nMr. A. V. Viswanatha Sastry, learned counsel for the appellant, contends that the High Court, having agreed with the Subordinate Judge that the Commissioner had failed to establish any of the charges levelled by him against the Trustee, erred in modi- 1: fying the scheme framed by the High Court iti the year 1919 introducing drastic changes therein, such as putting the management of the temple under an Executive Officer who could be appointed and removed only by the Hindu Religious and Charitable Endowments Board and also making a provision for the appointment of additional Trustees in future.\n\nHe has no objection to F that part of the scheme introducing formal changes in the earlier scheme so a~ to bring it in conformity with the provisions of the Act.\n\nThe arguments of Mr. A. Ranganadham Chetty, learned counsel for the State, may be stated thus : Under the Act a scheme G for the administration of a temple may be framed or an earlier scheme may be amended not only when there is mismanagement by the Trustee but also for providing for a better administration of the temple; in the present case, though there is no misman1gemcnt by the Trustee, the extensive immovable properties the temple owns, the existence of large arrears of rents, settlement of disputes ff that may arise between the tenants and the Trustee under the new\n\ntenancy laws and such others call for the a\"oointment of a trained Executive Officer by the Commissioner in the best interests of the\n\nSUPREMB CX>U1T REPORTS\n\n(1965] 2 S.C.R.\n\nTemple.\n\nThat apart, as under the Act the Commissioner is A empowered to frame a scheme if he has reason to believe that in the interests of the proper administration of a religious institution a scheme should be settled for the same, his opinion must be given almost a .decisive weight by a Court in the matter of amending a scheme.\n\nTo appreciate the contentions of the parties it will be convenient at the outset to notice briefly the scheme of the Act.\n\nThe Act was passed to provide for the proper administration and governance of Hindu Religious and Charitable Endowments and institutions in the State of Madras. It provides for the appointment of 4 classes of authorities, namely, Commissioner, Deputy Commis- C sioners, Assistant Commissioners and . Area Committees.\n\nThe Commissioner is the highest authority in the hierarchy. Subject to the provisions of the Act, the administration of all religious endowments shall be subject to the general superintendence and control of the Commissioner and for the purpose of such control he can pass any orders which he may deem necessary to ensure D that such endowments are properly administered and that their incomes are duly appropriated for the purposes for which they were founded or exist.\n\nSpecific duties have been allotted to the other authorities subject to the overall control of the Commissioner.\n\nThere are many effective provisions in the Act to ensure proper administration of temples.\n\nTrustees have to keep registers for all E institutions for the scrutiny of the appropriate authority.\n\nThey have to furnish accounts and the accounts have to be audited in the manner prescribed in the Act.\n\nThe Trustees cannot alienate immovable properties or lease the same beyond 5 years without the sanction of the appropriate authority. They have to obey all lawful orders of the appropriate authorities.\n\nThe service F conditions of the office-holders are duly protected. The scales of expenditure have been standardized and a provision is made fixing the fees for archana and the apportionment of the same.\n\nThe Trustees have to prepare budgets and get their accounts audited.\n\nThere are provisions even for ordering surcharge against Trustees. G All the temples, whether governed by schemes or not, are subject to the said provisions of the Act.\n\nThus, there is a fair amount of financial and administrative control over the Trustees.\n\nThe general provisions of the Act may be sufficient in the case of temples which are properly administered; but there may be a temple without any scheme of administration or even if it has one, ff it may require to be improved to achieve better results. Section 58 enables a Deputy Commissioner to settle a scheme for an institution\n\nSUBllAMANL\\ DESIGA v. STATB (Subba Rao,/.) 939\n\nA if he has reason to believe that in the interests of better administration thereof a scheme should be settled for it.\n\nHis order framing a scheme is subject to appeal to the Commissioner. Under s. 62 of the Act a party aggrieved by the order can file a suit in a Court questioning the correctness of the same and against the order of that Court an appeal lies to the High Court. Under s. 103 ( d) of B the Act, \"all schemes settled or modified by a Court of law under the said Act (The Madras Hindu Religious Endowments Act,\n\n1926) or under section 92 of the Code of Civil Procedure, 1908, shall be deemed to have been settled or modified by the Court under this Act and shall have effect accordingly.\" Under s. 62(3) of the Act, any scheme modified by a Court under s. 62(2) C of the Act. or any scheme framed or any scheme deemed under s. 103 ( d) to have been settled or modified by a Court can at any time be modified or cancelled by a Court on an application macle to it by the Commissioner or a Trustee or any person having interest.\n\nAny party aggtjved by any order of the Court under\n\ncl. (a) of s. 62(3) may within 90 days of the order appeal to the High Court.\n\nThe effect of these provisions is that though the Deputy Commissioner settles a scheme at the first instance, an aggrieved party can finally go to a civil Court to have the scheme modified. So too, a scheme framed by a Court µnder s. 92 of the Code of Civil Procedure can be modified on an application made I: to a Court by the Commissioner, Trustee or any person having\n\nUiterest.\n\nBefore the Act, there was a conflict whether the scheme framed by a Court under s. 92 of the Code of Civil Procedure could be modified on an application made by an aggrieved party and that conflict is resolved under the Act by an express provision that it can be so done.\n\nWhere a temple is so badly mismanaged that r the administration cannot be improved by the exercise of ordinary powers under the Act or by framing a scheme, the Commissioner !s given the power to notify such a temple and put it under the direct control of an Executive Officer directly responsible to him.\n\nThis is in the nature of supersession of the ordinary administration of a temple.\n\nIt is, therefore, clear that under the Act the adminis- G tration of all temples is subject to the exercise of the powers conferred upon the authorities thereunder. The Deputy Commissioner can settle a scheme for the proper administration of a temple. If the administration of a temple is very bad, it can be superseded and the temple notified for a prescribed period.\n\nFrom the scheme of the said provisions we do not see any justification for H the argument of the learned counsel for the State that the Court shall accept without scrutiny the view of the Deputy Commissioner that the scheme requires modification in the manner suggested by\n\n940 SUPREME COUll'l' REPORTS\n\n[1965] 2 S.C.R.\n\nhim and that the formal imprimatur by the Court is all that is A contemplated thereunder.\n\nWhile we appreciate the argument that a Court shall have due regard to the views of the Commissioner or the Deputy Commissioner, as the case may be, who is in close . touch with the administration of temples, we cannot persuade ourselves to hold that the Court is relieved of its duty of ascertaining the necessity for framing a scheme or to find out the propriety B or advisability of the various clauses of a scheme. In framing a scheme, the Deputy Commissioner and, in a suit or application for amendment of a scheme, the Coun will mould the relief under s. 58(2) of the Act l.!ltving regard to the circumstances of each case.\n\nSection 58(2) of the Act reads :\n\n\"A scheme settled under sub-section ( 1 ) for a temple or for a specific endowment other than one attached to a math niay contain provision for-\n\n( a) removing any existing trustee, whether hereditary or non-hereditary;\n\n(b) appointing a new trustee or trustees in the place of or in addition to any existing trustee or trustees; ( c) defining the powers and duties of the trustee or trustees;\n\n( d) appointing, or directing the appointment of, a paid executive officer who shall be a person professing the Hindu religion, on such salary and allowances as may be fixed, to be paid out of the funds of the institution; and defining the powers and duties of such officer :\n\nThe Deputy Commissioner, the Commissioner or the Coun, .as the case may be, is not bound, in framing a scheme, to appomt an Executive Officer in every case; but a case will have to be made\n\nout for appointing him : that depends upon the facts established in G each case.\n\nWith this background let us look at the scheme framed by the High Court. The scheme is made a part of the judgment of the High Court.\n\nThe clauses of the scheme read thus :\n\n1. The temple of Sri Vaithianathaswami at Vaitheeswarankoil, Shiyali Taluk, and the shrines and minor temples attached thereto, and charities and endowments thereof, together comprise the \"Velur Devasthanam\",\n\nA •\n\nII ,\n\nSUBRAMANIA DESIGA v. STATE (Subba Rao,/.) 941\n\nand it shall be governed by the provisions of Act XIX of 1951 and the rules made thereunder.\n\n2. The properties, movables and immovables, belonging to be Devasthanam and that may hereafter be acquired by the Devasthanam shall vest in the deity of Sri Vaithianathaswami.\n\n3. The administration of the Devasthanam and its properties shall vest in the Pandarasannadhi at the Dharmapuram Adhinam for the time being, who shall be the \"trustee\" of the Devasthanam.\n\n4. On the application of the Commissioner, the Court shall have the power to add two additional trustees if at some future time it is found that it is necessary to do so in the interest of the Devasthanam on account of the mismanagement by the Pandarasannadhi, the Trustee.\n\n5. All the affairs of the Devasthanam, such as the receipt of income, incurring of expenditure, management of the property, the performance of the worship and the festivals of the temple, bringing and defending suits on behalf of the Devasthanam, shall be conducted by the Executive Officer under the supervision of the trustee, the mamool religious functions of the Kattalai Thambiran being reserved.\n\n6. The Trustee shall in April every year prepare a budget of the income and expenditure and such budget will be governed by the provisions of Madras Act XIX of 1951. The Trustee shall be given a discretion to spend any amount not exceeding Rs. 2,000/- (Rupees two thousand) every year in addition to the budgeted expenditure.\n\n7. (a) The Trustee shall from out of the five names sent to him by the Commissioner choose one of them for appointment as the Executive Officer of the Devasthanam and such person shall be appointed by the Commissioner as Executive Officer and shall be in management of the Devasthanam and its properties in the dayto-day administration including the maintenance of accounts, keeping of records, making collections and disbursements, and shall have the control of the temple servants.\n\n942 SUPllMB COURT :REPORTS\n\n(1965] 28.C.R.\n\n(b) The Executive Officer shall be a first class .l Executive Officer, and shall be paid such salary and employed on such terms as the Commissioner may from time to time prescribe and his powers and duties shall be regulated by Madras Act XIX of 1951 and the rules framed thereunder.\n\n8. The Pandarasannadhi shall select from among the Thambirans of the Dharmapuram Adhinam a Kattalai Thambiran competent to do the religious functions of the Trustee.\n\nThe Pandarasannadhi will be responsible for all acts of the Kattalai Thambiran as a master for the acts of the servant\n\n9. The Kattalai Thambiran shall attend to the performance in proper msnner and in proper times of the daily pujas and worship and of the monthly and yearly festivals of the Devasthanam under the supervision and direction of the Executive Officer.\n\n10. (a) The matam building belonging to the Devasthanam in Vaitheeswarankoil shall be set apart for the residence of Kattalai Thambiran, and a sum of Rs. 50/- a month shall be paid to him for his maintennance and personal expenses.\n\nHe will also be entitled to the enjoyment of one veli of maniam land, as in the pre-scheme days.\n\n(b) The present treasurer and shroff will continue in office on the present scale of pay, and they shall work under the directions of the Executive Officer and shall do such work as is assigned to them. The future treasurer and shroff will be appointed by the Commissioner.\n\nThe old scale of salary of the treasurer is reduced to the present scale of Rs. 100-5-125.\n\n11. The Executive Officer shall, with the permission of the Commissioner, sell in public auction the jewels and ornaments gold and silver coins not in circulation and other metallic objects in the hundials except current coins and any other offerings.\n\n12. The Trustee shall place one or more hundials, as occasions might require, for the deposit of voluntary and compulsory offerings by the worshippers. Each bundial shall be of copper brass or any other materials, and shall have metalic covering with an aperture. l!ach of such hundials shall be under double lock and\n\nSUBRAMANIA DESIGA v. STATE (Subba Rao, /.)\n\nscaled by the Trustee and the Executive Officer. One set of keys shall be with the Executive Officer and other set with the Trustee.\n\nThe hundials shall be opened every day or at such intervals as the Trustee may direct in the presence of the Executive Officer and the Kattalai Thambiran and the worshippers of the temple and the collections shall be kept by the Executive Officer.\n\n13. In the matter of accounts, preparing abstracts, and receipts and disbursement of the Devasthanam as also of preparation, publication and audit of accounts, the Executive Officer and the Trustee shall observe the procedure prescribed in Madras Act XIX of 1951 and the rules made thereunder.\n\n14. The accounts of the Devasthanam shall be open to inspection by any person having interest, on his giving one day's previous notice to the Executive Officer and paying a fee of Rs. 5 /- for each day or pan of a day in advance of such inspection.\n\nThe person so inspecting may bring to the notice of the Commissioner any irre- gularity and the Commissioner may pass such orders as he may think necessary.\n\n15. All the records of the Devasthanam shall be kept in proper order in the premises of the Devasthanam provided for the purpose in Vaitheeswarankoil, and an accurate list of all records should be maintained. There shall be a record-keeper who shall be in charge of all the\n\nrecords and he shall not allow any record to be taken out without the written authority of the Executive Officer and without getting proper vouchers.\n\n16. Power is reserved to the Trustee to apply to the Commissioner for permission to use the surplus funds on such religious and charitable and other purposes as may tend. to promote the cause of the institution such as an Agama Patasala or Thevara Patasala or Adhyayana Patasala or such other purposes as are prescribed by the Act.\n\n17. The Trustee shall have the discretion to maKe jewels, vahanams, etc., or to do thiruppani work for the Devasthanam out of the sumlus income of each vear after obtaining the sanction of the Commissioner and in accordance with the provisions of Act XIX of 1951, and the rules made thereunder. The Trustee shall have\n\n\na discretion to spend Rs. 2,000/- annually over and A above the sanctioned amount if necessary and if funds are available.\n\n18. The Trustee may with the sanction of the Commissioner invest the surplus funds of the Devasthanam in such manner as is prescribed under Madras Act XIX of 1951 and the rules made thereunder.\n\n19. There sh.all be no money dealings or transactions between the Devasthanam Trustee and the Adhinam or any of the Kattalai charities or trusts managed by the Pandarasannadhi of Dharmapuram or any person under his orders.\n\n20. Save as expressly provided herein, the administration of the temple shall be governed by the provisions of the Madras Act XIX of 1951 and the rules made thereunder.\n\nIt will be seen from the aforesaid provisions of the scheme that it D\n\nintroduce~ an Executive Officer to be appointed by the Commissioner and removable by him; his salary is fixed by the Commissioner and his powers and duties are regulated by the Act and the rules framed thereunder. In substance, he is a servant of the Commissioner and is under his control. He is to be in charge of the entire administration of the temple.\n\nNothing can be dorie in E the temple without his permission.\n\nIt is true that he functions under the supervision of the Trustee; but there is an essential distinction between supervision and management. If the Executive Officer disobeys him, the Pandarasannadhi cannot do anything, except perhaps to complain to the Commissioner.\n\nSuch a drastic F provisiQn may be necessary in a case where the temple is mismanaged or if there are other circumstances which compel such an ap119intment. But there is concurrent finding of fact in this case 1tlj_i1j the Commissioer has failed to establish any of the chargesJevelled by him against the Trustee.\n\nIt is not, therefore, possible to hold that any case has been made out for the appoint- G ment of an Executive Officer who practically displaces the Trustee.\n\nMr. A. Ranganadham Chetty says that the appointment of the Executive Officer is necessary in view of the great things which have to be done in the temple, like sale of 3,000 acres of land to the tenants under the new legislation at agreed prices, H checking cash collections, including the hundial collections, doing away with the ad hoc auctioneers appointed by the Commissioner\n\n; .\n\nSUBRAMANIA DESIGA v. STATB (Subba Rao,/.) 9'5\n\nA from time to time, and for auctioning leases, and all kinds of pm\n\nperties like jewellery, lands, etc.\n\nWe have no material before\n\n111 to find out what is the complicated and difficult action the Trustee has to take in the matter of selling 3,000 acres of land\n\nto the tenants under the new legislation at agreed prices.\n\nH there is any such difficulty, the Commissioner has ample powers B under the Act to issue orders or at any rate advice the Trustee in the matter of disposal of such lands.\n\nOther difficulties are not such as to necessitate the appointment of an Executive Officer practically displacing the Trustee.\n\nFurther it appears from the record that the present Kattalai Thambiran is a legally qualified person and he can ordinarily be expected to look after these c things with appropriate expert advice.\n\nWe do not think any case has been made out for the appointment of the Executive Officer.\n\nThe next objection raised by Mr. Viswanatha Sastry relates to cl. ( 4) of th~ scheme, which reads :\n\nD \"On the application of the Commissioner, the Court\n\nshall have the power to add two additional trustees if at some future time it is found that it is necessary to do so in the interest of the Devasthanam on account of the mismanagement by the Pandarasannadhi, the\n\nTrustee.\"\n\nClanse 4 of the scheme only confers a power and it does not direct the appointment of additional trustees in presenti or even in future.\n\nIndeed, s. 39 of the Act was amended in 1954 whereunder such a power is conferred even on the Commissioner. We do not think the appellant is in any way prejudiced by the said P clause. Therefore, it may stand. As we are deleting the clause appointing the Executive Officer, there will be consequential amendments in the various clauses of the scheme framed by the High Court.\n\nIt is brought to our notice that in 1959 the Madras Hindu G Religious and Charitable Endowments Act (Act XXIl of 1959) was passed by the Madras Legislature. Under s. 45 thereof, the Commissioner is given a plenary power to appoint an Executive Officer to any temple and, therefore, it is argued, this Court shall not interfere with the clause of the scheme providing for the appointment of an Executive Officer to the temple in question.\n\nH The said Act was passed subsequent to the filing of the suit. We are deciding this appeal on the basis of the circumstances obtaining in the year 1951 when the suit was filed.\n\nIt may be\n\nSUPUMJI' COURT lll!POllTS [196S] 2 s.c.L\n\nthat under the new Act the Commissioner has higher power1 A than he had under the 1951 Act and subsequent events may call for the exercise of those powers.\n\nOur judgment will not preclude the Commissioner to take any action under the new\n\nict as the circumstances demand.\n\nWith these observations we atall proceed to modify the scheme framed by the High Court. ' B ;' :~\n\nIn the scheme framed by the High Court, clauses l, 2, 3, 4, 6, 10(a), 16, 17, 18, 19 and 20 will be retained; clause 7 will be deleted; and the other clause will be amended as under:\n\nClause 5. The words \"the Executive Officer under the supervision of' will be omitted.\n\nClause 8. The word \"religious\" will be omitted.\n\nClause 9. The words \"under the supervision and direction of the Executive Officer\" will be omitted.\n\nClause lO(b) shall read :\n\nThe treasurer and shroff will continue in office on the present scale of pay, and they shall work under the directions of the Trustees.\n\nClause 11. The words \"Executive Officer\" shall be replaced by the word ''Trustee\".\n\nClause 12 shall read :\n\nThe Trustee shall place one or more hundials, as occasions might require, for the deposit of voluntary and compulsory offerings by the worshippers.\n\nEach hunclial shall be of copper brass or any other materials, and shall have metallic covering with an aperture.\n\nEach of such hundials shall be under double lock and sealed by the Trustee or his nominee and the Kattalai Thambiran.\n\nOne set of keys shall be with the Kattalai Thambiran and the other set -with the. Trustee or his nominee.\n\nThe hundials shall be opened every day or at such intervals as the Trustee may direct in the presence of the Kattalai Thambiran and the worshippers of the temple and the collections shall be kept by the Trustee.\n\nClause 13. The words \"Executive Officer\" will be substituted by the words \"Kattalai Thambiran\".\n\nSUBRAMANIA DESIGA v. STA.TB (Subba Rao, /.) 947\n\nClause 14. The words \"Executive Officer\" will be substituted by the words \"Kattalai Thambiran\".\n\nClause 15. The words \"Executive Officer\" will be substituted by the words \"Kattalai Thambiran\".\n\nIn the result, the decree of the High Court is modified as 8 aforesaid.\n\nThe parties will bear their respective costs throughi oat.\n\nDecree modified.", "total_entities": 84, "entities": [{"text": "SRI LA SRI SUBRAMANIA DESIGA GNANASAMBANDA A\n\nPANDARA SANNADHI, TRUSTEE OF SRI VAIDYANA\n\nTHASWAMI TEMPLE, VAITHEESWARANKOIL", "label": "PETITIONER", "start_char": 0, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "SRI LA SRI SUBRAMANIA DESIGA GNANASAMBANDA PANDARA SANNADHI, TRUSTEE OF SRI VAIDYANATHASWAMI TEMPLE, VAITHEESWARANKOIL", "offset_not_found": false}}, {"text": "STATE OF MADRAS", "label": "RESPONDENT", "start_char": 125, "end_char": 140, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADRAS", "offset_not_found": false}}, {"text": "1965 (K. SUBBA RAo", "label": "JUDGE", "start_char": 154, "end_char": 172, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL, J.", "label": "JUDGE", "start_char": 174, "end_char": 192, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 193, "end_char": 205, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 208, "end_char": 222, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 227, "end_char": 244, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Charitable Endowments Act", "label": "STATUTE", "start_char": 272, "end_char": 297, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Madras High Court", "label": "COURT", "start_char": 602, "end_char": 619, "source": "ner", "metadata": {"in_sentence": "By virtue of a scheme framed by the Madras High Court in 1919, the administration of a temple was placed in the hands of the )<:altali Thambiran to be appointed by the appellant in his capacity as the trustee."}}, {"text": "altali Thambiran", "label": "OTHER_PERSON", "start_char": 694, "end_char": 710, "source": "ner", "metadata": {"in_sentence": "By virtue of a scheme framed by the Madras High Court in 1919, the administration of a temple was placed in the hands of the )<:altali Thambiran to be appointed by the appellant in his capacity as the trustee."}}, {"text": "s. 62(3)", "label": "PROVISION", "start_char": 883, "end_char": 891, "source": "regex", "metadata": {"linked_statute_text": "Charitable Endowments Act", "statute": "Charitable Endowments Act"}}, {"text": "Madras D Hindu Religious and Charitable Endowments Act, 1951", "label": "STATUTE", "start_char": 903, "end_char": 963, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 58(2)", "label": "PROVISION", "start_char": 3950, "end_char": 3958, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 5353, "end_char": 5358, "source": "regex", "metadata": {"statute": null}}, {"text": "A. V. Viswanatha Sastri", "label": "LAWYER", "start_char": 5954, "end_char": 5977, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri and Naunit Lal, for the appellant.", "canonical_name": "A. V. Viswanatha Sastri"}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 5982, "end_char": 5992, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri and Naunit Lal, for the appellant."}}, {"text": "A. Ranr?anatham Chetty", "label": "LAWYER", "start_char": 6014, "end_char": 6036, "source": "ner", "metadata": {"in_sentence": "A. Ranr?anatham Chetty, A. Vedavalli and A .V. Rangam, for the respondent.", "canonical_name": "A. Ranr?anatham Chetty"}}, {"text": "A. Vedavalli", "label": "LAWYER", "start_char": 6038, "end_char": 6050, "source": "ner", "metadata": {"in_sentence": "A. Ranr?anatham Chetty, A. Vedavalli and A .V. Rangam, for the respondent."}}, {"text": "A .V. Rangam", "label": "LAWYER", "start_char": 6055, "end_char": 6067, "source": "ner", "metadata": {"in_sentence": "A. Ranr?anatham Chetty, A. Vedavalli and A .V. Rangam, for the respondent."}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 6134, "end_char": 6143, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSubba Rao, J.\n\nSri Vaidyanathaswami Temple at V aitheeswaranlcoil, Sirkali Taluk, Thanjavur District, Madras State, is an\n\nSUPREME COURT REPORTS\n\n[1965) 2 S.C.R.\n\nancient and famous Siva temple."}}, {"text": "Dharmapuram Adhinam", "label": "OTHER_PERSON", "start_char": 6569, "end_char": 6588, "source": "ner", "metadata": {"in_sentence": "In 1842 the British Government, which was then administering the temple, handed over its management to the Pandarasannadhi of Dharmapuram Adhinam."}}, {"text": ".Pandarasannadhi", "label": "RESPONDENT", "start_char": 6611, "end_char": 6627, "source": "ner", "metadata": {"in_sentence": "Since then the said .Pandarasannadhi has been managing the same through one of his selected disciples, a Kattalai Thambiran.", "canonical_name": "Pandarasan- G nadhi"}}, {"text": "Kattalai Thambiran", "label": "RESPONDENT", "start_char": 6696, "end_char": 6714, "source": "ner", "metadata": {"in_sentence": "Since then the said .Pandarasannadhi has been managing the same through one of his selected disciples, a Kattalai Thambiran.", "canonical_name": "Kattalai Thambiran"}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 6740, "end_char": 6760, "source": "ner", "metadata": {"in_sentence": "In the year 1919, B the High Court of Madras framed a scheme for the administration of the said temple in A.S. No."}}, {"text": "Pandarasannadhi", "label": "RESPONDENT", "start_char": 6987, "end_char": 7002, "source": "ner", "metadata": {"in_sentence": "The said scheme provided, among others, that the administration of the temple shoDI be in the bands of the Kattalai Thambiran appointed by the Pandarasannadhi, and that he should be assisted by a treasurer, C a shroff and an auctioneer who was to be appointed once in 3 years by the Court.", "canonical_name": "Pandarasan- G nadhi"}}, {"text": "Madras Legislature", "label": "PETITIONER", "start_char": 7139, "end_char": 7157, "source": "ner", "metadata": {"in_sentence": "The Madras Legislature passed Act IT of 1927 providing for the good administration of temples and their endowments."}}, {"text": "That Act was substituted by The Madras Hindu Religious and Charitable Endowments Act, 1951", "label": "STATUTE", "start_char": 7503, "end_char": 7593, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "June 16, 1951", "label": "DATE", "start_char": 7649, "end_char": 7662, "source": "ner", "metadata": {"in_sentence": "On June 16, 1951, the Commissioner, Hindu Religious and Charitable Endowments, Madras, filed a petition in the Court of the Subordinate Judge, Mayuram, under E s. 62(3a) of the Act for modifying the scheme framed by the High Court."}}, {"text": "Commissioner, Hindu Religious and Charitable Endowments, Madras", "label": "PETITIONER", "start_char": 7668, "end_char": 7731, "source": "ner", "metadata": {"in_sentence": "On June 16, 1951, the Commissioner, Hindu Religious and Charitable Endowments, Madras, filed a petition in the Court of the Subordinate Judge, Mayuram, under E s. 62(3a) of the Act for modifying the scheme framed by the High Court."}}, {"text": "Subordinate Judge, Mayuram", "label": "COURT", "start_char": 7770, "end_char": 7796, "source": "ner", "metadata": {"in_sentence": "On June 16, 1951, the Commissioner, Hindu Religious and Charitable Endowments, Madras, filed a petition in the Court of the Subordinate Judge, Mayuram, under E s. 62(3a) of the Act for modifying the scheme framed by the High Court."}}, {"text": "s. 62(3a)", "label": "PROVISION", "start_char": 7806, "end_char": 7815, "source": "regex", "metadata": {"linked_statute_text": "That Act was substituted by The Madras Hindu Religious and Charitable Endowments Act, 1951", "statute": "That Act was substituted by The Madras Hindu Religious and Charitable Endowments Act, 1951"}}, {"text": "Pandarasan- G nadhi", "label": "RESPONDENT", "start_char": 8558, "end_char": 8577, "source": "ner", "metadata": {"in_sentence": "The Pandarasan- G nadhi filed a counter-affidavit denying all the allegations made against the management of the temple and asserting that he had functioned in terms of the scheme and had piloted the temple through .", "canonical_name": "Pandarasan- G nadhi"}}, {"text": "State of Madras", "label": "ORG", "start_char": 9219, "end_char": 9234, "source": "ner", "metadata": {"in_sentence": "The State of Madras, represented b_y the Commissioner of Hindu Religious and Charitable Endowments, Madras, preferred an appeal against the said order to the High Court of Madras."}}, {"text": "Madras", "label": "GPE", "start_char": 9315, "end_char": 9321, "source": "ner", "metadata": {"in_sentence": "The State of Madras, represented b_y the Commissioner of Hindu Religious and Charitable Endowments, Madras, preferred an appeal against the said order to the High Court of Madras."}}, {"text": "A. V. Viswanatha Sastry", "label": "LAWYER", "start_char": 10310, "end_char": 10333, "source": "ner", "metadata": {"in_sentence": "Mr. A. V. Viswanatha Sastry, learned counsel for the appellant, contends that the High Court, having agreed with the Subordinate Judge that the Commissioner had failed to establish any of the charges levelled by him against the Trustee, erred in modi- 1: fying the scheme framed by the High Court iti the year 1919 introducing drastic changes therein, such as putting the management of the temple under an Executive Officer who could be appointed and removed only by the Hindu Religious and Charitable Endowments Board and also making a provision for the appointment of additional Trustees in future.", "canonical_name": "A. V. Viswanatha Sastri"}}, {"text": "Hindu Religious and Charitable Endowments Board", "label": "ORG", "start_char": 10777, "end_char": 10824, "source": "ner", "metadata": {"in_sentence": "Mr. A. V. Viswanatha Sastry, learned counsel for the appellant, contends that the High Court, having agreed with the Subordinate Judge that the Commissioner had failed to establish any of the charges levelled by him against the Trustee, erred in modi- 1: fying the scheme framed by the High Court iti the year 1919 introducing drastic changes therein, such as putting the management of the temple under an Executive Officer who could be appointed and removed only by the Hindu Religious and Charitable Endowments Board and also making a provision for the appointment of additional Trustees in future."}}, {"text": "A. Ranganadham Chetty", "label": "LAWYER", "start_char": 11092, "end_char": 11113, "source": "ner", "metadata": {"in_sentence": "The arguments of Mr. A. Ranganadham Chetty, learned counsel for the State, may be stated thus : Under the Act a scheme G for the administration of a temple may be framed or an earlier scheme may be amended not only when there is mismanagement by the Trustee but also for providing for a better administration of the temple; in the present case, though there is no misman1gemcnt by the Trustee, the extensive immovable properties the temple owns, the existence of large arrears of rents, settlement of disputes ff that may arise between the tenants and the Trustee under the new\n\ntenancy laws and such others call for the a\"oointment of a trained Executive Officer by the Commissioner in the best interests of the\n\nSUPREMB CX>U1T REPORTS\n\n(1965] 2 S.C.R.\n\nTemple.", "canonical_name": "A. Ranr?anatham Chetty"}}, {"text": "Section 58", "label": "PROVISION", "start_char": 14476, "end_char": 14486, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62", "label": "PROVISION", "start_char": 14800, "end_char": 14805, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 103", "label": "PROVISION", "start_char": 14991, "end_char": 14997, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras Hindu Religious Endowments Act", "label": "STATUTE", "start_char": 15092, "end_char": 15129, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 92", "label": "PROVISION", "start_char": 15147, "end_char": 15157, "source": "regex", "metadata": {"linked_statute_text": "The Madras Hindu Religious Endowments Act,\n\n1926", "statute": "The Madras Hindu Religious Endowments Act,\n\n1926"}}, {"text": "Code of Civil Procedure, 1908", "label": "STATUTE", "start_char": 15165, "end_char": 15194, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 62(3)", "label": "PROVISION", "start_char": 15315, "end_char": 15323, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "s. 62(2)", "label": "PROVISION", "start_char": 15373, "end_char": 15381, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "s. 103", "label": "PROVISION", "start_char": 15444, "end_char": 15450, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "s. 62(3)", "label": "PROVISION", "start_char": 15710, "end_char": 15718, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "s. 92", "label": "PROVISION", "start_char": 16009, "end_char": 16014, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 16018, "end_char": 16045, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 92", "label": "PROVISION", "start_char": 16241, "end_char": 16246, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 16250, "end_char": 16277, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 58(2)", "label": "PROVISION", "start_char": 18163, "end_char": 18171, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 58(2)", "label": "PROVISION", "start_char": 18236, "end_char": 18249, "source": "regex", "metadata": {"statute": null}}, {"text": "Vaithianathaswami", "label": "OTHER_PERSON", "start_char": 19409, "end_char": 19426, "source": "ner", "metadata": {"in_sentence": "The temple of Sri Vaithianathaswami at Vaitheeswarankoil, Shiyali Taluk, and the shrines and minor temples attached thereto, and charities and endowments thereof, together comprise the \"Velur Devasthanam\",\n\nA •\n\nII ,\n\nSUBRAMANIA DESIGA v. STATE (Subba Rao,/.) 941\n\nand it shall be governed by the provisions of Act XIX of 1951 and the rules made thereunder."}}, {"text": "Vaitheeswarankoil", "label": "GPE", "start_char": 19430, "end_char": 19447, "source": "ner", "metadata": {"in_sentence": "The temple of Sri Vaithianathaswami at Vaitheeswarankoil, Shiyali Taluk, and the shrines and minor temples attached thereto, and charities and endowments thereof, together comprise the \"Velur Devasthanam\",\n\nA •\n\nII ,\n\nSUBRAMANIA DESIGA v. STATE (Subba Rao,/.) 941\n\nand it shall be governed by the provisions of Act XIX of 1951 and the rules made thereunder."}}, {"text": "Devasthanam", "label": "OTHER_PERSON", "start_char": 20309, "end_char": 20320, "source": "ner", "metadata": {"in_sentence": "On the application of the Commissioner, the Court shall have the power to add two additional trustees if at some future time it is found that it is necessary to do so in the interest of the Devasthanam on account of the mismanagement by the Pandarasannadhi, the Trustee."}}, {"text": "Madras Act XIX of 1951", "label": "STATUTE", "start_char": 20936, "end_char": 20958, "source": "regex", "metadata": {}}, {"text": "Devasthanam", "label": "ORG", "start_char": 21272, "end_char": 21283, "source": "ner", "metadata": {"in_sentence": "a) The Trustee shall from out of the five names sent to him by the Commissioner choose one of them for appointment as the Executive Officer of the Devasthanam and such person shall be appointed by the Commissioner as Executive Officer and shall be in management of the Devasthanam and its properties in the dayto-day administration including the maintenance of accounts, keeping of records, making collections and disbursements, and shall have the control of the temple servants."}}, {"text": "Madras Act XIX of 1951", "label": "STATUTE", "start_char": 21878, "end_char": 21900, "source": "regex", "metadata": {}}, {"text": "Pandarasannadhi", "label": "RESPONDENT", "start_char": 21942, "end_char": 21957, "source": "ner", "metadata": {"in_sentence": "The Pandarasannadhi shall select from among the Thambirans of the Dharmapuram Adhinam a Kattalai Thambiran competent to do the religious functions of the Trustee.", "canonical_name": "Pandarasan- G nadhi"}}, {"text": "Madras Act XIX of 1951", "label": "STATUTE", "start_char": 24407, "end_char": 24429, "source": "regex", "metadata": {}}, {"text": "Vaitheeswarankoil", "label": "OTHER_PERSON", "start_char": 25002, "end_char": 25019, "source": "ner", "metadata": {"in_sentence": "All the records of the Devasthanam shall be kept in proper order in the premises of the Devasthanam provided for the purpose in Vaitheeswarankoil, and an accurate list of all records should be maintained."}}, {"text": "Madras Act XIX of 1951", "label": "STATUTE", "start_char": 26213, "end_char": 26235, "source": "regex", "metadata": {}}, {"text": "Devasthanam Trustee", "label": "ORG", "start_char": 26334, "end_char": 26353, "source": "ner", "metadata": {"in_sentence": "There sh.all be no money dealings or transactions between the Devasthanam Trustee and the Adhinam or any of the Kattalai charities or trusts managed by the Pandarasannadhi of Dharmapuram or any person under his orders."}}, {"text": "Adhinam", "label": "OTHER_PERSON", "start_char": 26362, "end_char": 26369, "source": "ner", "metadata": {"in_sentence": "There sh.all be no money dealings or transactions between the Devasthanam Trustee and the Adhinam or any of the Kattalai charities or trusts managed by the Pandarasannadhi of Dharmapuram or any person under his orders."}}, {"text": "Dharmapuram", "label": "GPE", "start_char": 26447, "end_char": 26458, "source": "ner", "metadata": {"in_sentence": "There sh.all be no money dealings or transactions between the Devasthanam Trustee and the Adhinam or any of the Kattalai charities or trusts managed by the Pandarasannadhi of Dharmapuram or any person under his orders."}}, {"text": "Madras Act XIX of 1951", "label": "STATUTE", "start_char": 26607, "end_char": 26629, "source": "regex", "metadata": {}}, {"text": "Viswanatha Sastry", "label": "OTHER_PERSON", "start_char": 29273, "end_char": 29290, "source": "ner", "metadata": {"in_sentence": "The next objection raised by Mr. Viswanatha Sastry relates to cl. ("}}, {"text": "s. 39", "label": "PROVISION", "start_char": 29765, "end_char": 29770, "source": "regex", "metadata": {"statute": null}}, {"text": "Charitable Endowments Act", "label": "STATUTE", "start_char": 30208, "end_char": 30233, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Madras Legislature", "label": "ORG", "start_char": 30271, "end_char": 30289, "source": "ner", "metadata": {"in_sentence": "It is brought to our notice that in 1959 the Madras Hindu G Religious and Charitable Endowments Act (Act XXIl of 1959) was passed by the Madras Legislature."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 30297, "end_char": 30302, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPUMJI' COURT", "label": "COURT", "start_char": 30763, "end_char": 30777, "source": "ner", "metadata": {"in_sentence": "It may be\n\nSUPUMJI' COURT lll!POllTS [196S] 2 s.c."}}, {"text": "clause 7", "label": "PROVISION", "start_char": 31287, "end_char": 31295, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 5", "label": "PROVISION", "start_char": 31361, "end_char": 31369, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 8", "label": "PROVISION", "start_char": 31448, "end_char": 31456, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 9", "label": "PROVISION", "start_char": 31497, "end_char": 31505, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 11", "label": "PROVISION", "start_char": 31762, "end_char": 31771, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 12", "label": "PROVISION", "start_char": 31846, "end_char": 31855, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 13", "label": "PROVISION", "start_char": 32573, "end_char": 32582, "source": "regex", "metadata": {"statute": null}}, {"text": "Executive Officer", "label": "RESPONDENT", "start_char": 32595, "end_char": 32612, "source": "ner", "metadata": {"in_sentence": "The words \"Executive Officer\" will be substituted by the words \"Kattalai Thambiran\"."}}, {"text": "Kattalai Thambiran", "label": "RESPONDENT", "start_char": 32648, "end_char": 32666, "source": "ner", "metadata": {"in_sentence": "The words \"Executive Officer\" will be substituted by the words \"Kattalai Thambiran\".", "canonical_name": "Kattalai Thambiran"}}, {"text": "Clause 14", "label": "PROVISION", "start_char": 32719, "end_char": 32728, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 15", "label": "PROVISION", "start_char": 32816, "end_char": 32825, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_103_109_EN", "year": 1965, "text": "RAMLAL ONKARMAL FIRM v.\n\nMOHANLAL J\"OGANI RICE AND ATIA MILLS February 16, 1965\n\nB (RAGHUBAR DAYAL, J. R. MUDHOLKAR, R. S.\n\nBACHAWAT\n\nAND\n\nV. RAMASWAMI. JJ.]\n\nDebt-Discharge of on payment by cheque-acceptance by c~! !ecting bank draft in payment of cheque-Whether debt discharged.\n\nIn oayment of an amount due from them to the respondents. the aopellants sent to the respondents on August 31, 1948 a cheque which had been drawn on the Sibsagar branch of a Tripura Bank in favour of the appellants by a third party and thereafter endorsed by the appellants to the respondents. On September, 4, 1948, the respondents forwarded the cheque to their bankers, a Gauhati Bankwho, in turn, sent the cheque to the Tripura Bank at Sibsagar for encashment. That bank debited the amount of the cheque to the account of the third party and sent to the respondent's Gauhati Bank a draft which was payable at its own Head Office at Calcutta. Thereafter the respondents' Gauhati Bank forwarded the draft to their Head Office at Calcutta for collection but the latter never presented the draft and made no a !tempt to collect the amount of the draft.\n\nIn the meantime, the respondents bank closed its business on\n\nSeptmber 17, 1948 and was ordered to be wound up. About a month later, the Tripura Bank also closed its business and was compelled to enter into a scheme of arrangement with its creditors.\n\nUpon the failure of their attempts to obtain payment of the draft amount from the Tripura B•nk, the respondents instituted a suit against the appellants claiming payment of their dues on the ground that the cheque dated August 31, 1948 was received by the respondents as a conditional payment, and as the cheque had not been cashed, the respondents were entitled to enforce their original claim. The sub-Judge dismissed the suit but the High Court in appeal reversed the decision and decree the suit.\n\nOn appeal to the Supreme Court, HELD: (per Raghubar D•yal, Bachawat and Ramaswami, JJ)- Although the respondents originally received the cheque as -a condi- -6 tional payment of their dues, and if nothing else had happened, the ori!\\inal debt would have revived on non-payment of the cheque, havmg regard to the !aches of the respondents in the collection of the draft and the consequential prejudice to the appellants, the respondents must be deemed to have retained the draft as. absolute payment of the cheque and on the payment of the cheque, the original debt stood discharged. rl05 E-Fl B Chetty on Contracts, 22nd Edn. Art. 1079; Addison's Treating on the Law of Contracts, 11th Edn. p. 156;\n\nflobkins v. Ware, L.R. (1869) 4 Ex. 268; Chamber.!yn v. Delarive, 2 Wils. K.B. 353, referred to. (per Mudholkar. , J.) : There was evidence to show that respondents' bank, instead of collecting cash from the Tripu\"a Bank at Sibsagar, sought, for reasons of their own, to collect th; amount by draft. Furthermore, after the resrxmdent bank went into J:quidation, the respondents wrote to the Tripura Bank stating that the\n\nlOJ\n\nSUPREME\n\nCOURT\n\nREPORTS (1965] 3 s.o.R.\n\namount of the demand draft belonged to them and not to their A bankers who were only acting as their agents for collection purposes and that accordingly the draft amount should be paid to them. Thus, though the cheque endorsed by the appellants in favour of the r.espondonts was only a conditional payment of the amount for which tne cheue was drawn, the respondents, by accepting the demand draft drawn by the Tripura Bank must be deemed to have accepted the draft as a legal tender or. as absolute payment of the amount payable under the cheque endorsed in their favour by the appel- B !ant. Their rights thereafter would rest only upon the demand draft\n\n~!'d not upon the original debt which the appellant owed to them. 1 he remedy of the respondents, therefore, could be against their own bank, or against the Tripura Bank, but not against the appellants. fl08 E, 109 CJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 638 of 0 1962.\n\nAppeal by special leave from the judgment and decree dated May 21, 1957 of the Assam High Court in First Appeal No.']., of 1962. ;\n\nN.C. Chatterjee and D.N. Mukherjee. for the appellants.\n\nD S.C. Nath, P.K. Chatterjee for R. Gopa/akrishnan, for the respondent.\n\nThe Judgment of RAGHUBAR DAYAL, BACHAWAT and RAMA- SWAMJ JJ. was delivered by BACH~WAT J. MUDHOLKAR J. delivered a separate Judgment.\n\nBachawat J. The appellants carrying on business at Raha in Now gong District had dealings with the respondents, carrying on business at Gatihati. As a result of the said dealings, the appel )ants were indebted to t, he respondents in a sum of Rs. 9,447-4-9.\n\nIn order to satisfy the dues of the respondents, the appellants sent\n\nto the respondents a cheque for Rs. 9,461-4·0 dated August 31, F\n\n1948. The cheque was drawn by a third party, Messrs. Nathuram Ja:dayal of Sibsagar on the Tripura Mo::!ern Bank, Sibsagar Branch, in favour of the appellants, who endorsed it to the respondents. On September 4, 1948, the respondents sent the clieque to\n\ntheir bankers, the Calcutta Commercial Bank, Gauhati for collection. On the same day, the Calcutta Commercial Bank, Gauhati sent the cheque to the Tripura Modern Bank, Sibsagar\n\nfor encashment. The Tripura Modern Bank, Sibsagar debited the accounts of their constituents. Messrs Nahuram Jaidayal with the sum of Rs. 9,461-4-0, and after deducting Rs. 6·4-0 on account of commission charges, sent to the Calcutta Commerci3l Bank, Gauhati a draft for Rs. 9,435/- dated September 14, 1948 towards II payment of the cheque. The draft was drawn by the Tripura Modern Bank, Sibsagar on its Calcutta Head Office .. and was marked current for three months from the date of the issue. On receipt of the draft, the Calcutta Commercial Bank, Gauhati sent it to the'r Head Office at Calcutta for colh; ction.. But the Calcutta Commercial Bank never presented the draft to the Tripura Modern Bank, and made no attempts to collect the amount of the draft.\n\nRAMLAL v. MUHANLAL (Bach.iwat, J.) 105\n\nA In the meantime, the respondents wrote to the appellants informing them that cash payment for the cheque has not been recdved, and on September 18, 1948 the appellants replied asking the respondents to get back the cheque. But the cheque was never returned to the respondents. On September 17, 1948, the Calcutta Commercial Bank closed its business, and subsequently, it was B ordered to be wound up. On October 16, 1948, the Tripura Modern\n\nBank also closed its bus'ness, and in view of its inability to pay its dues, was compelled to enter into a scheme of arrangement with its creditors.\n\nOn November 19, 1948, the respondents requested the Tr, ipura Modern Bank to pay the amount of the draft to them and not to C the Calcutta Commercial Bank. But no payment was made by the Tripura Modern Bank either to the respondents or to the Calcutta Commercial Bank. On March 8, 1949, the respondents instituted the suit, out of which the appeal arises, claiming payment of their dues from the appellants on the footing that the cheque dated D August 31, 1948 was received by the respondents as a conditional payment, and as the cheque was not cashed, the respondents were entitled to enforce their original claim. The Subordinate Judge, Lower Assam District, dismissed the suit. On appeal, the High Court reversed the judgment appealed from, and decreed the suit.\n\nThe appellants now appeal to this Court by special leave.\n\nE The High Court rightly held that the respondents originally received the cheque dated August 3], 1948 as a conditional payment of their dues, and if nothing else happened, the original debt would have revived on non-payment of the cheque. But we think that having regard to the laches of the respondents in the collection of the draft and the consequential prejudice to the appellants, the F respondents must be deemed to have retained the draft as absolute payment of the cheque, and on the payment of the cheque, the original debt stood discharged.\n\nIn Chitty on Contracts, 22nd &In., Art. 1079, the law is stated thus:\n\n\"Where a negotiable instrument, upon which the debtor is not primarily liable, is accepted by the creditor as conditional payment, he is bound to do all that a holder of such an instrument may do in order to get payment; thus it is his duty to present a cheque within a reasonable time, and if he fails to do so, and the debtor is thereby prejudiced, the creditor is guilty of !aches and makes the cheque his own, so that it amounts to payment of the debt.\" In Addison's Treatise on the Law of Contrac.ts, I Ith Edn., p. 156, it is stated:-\n\n\"If the debtor makes an order upon hs banker for payment of the amount of the debt, and the creditor accepts it, and keeps it in his hands an unreasonable time before\n\n8'UPREME\n\nCOURT REPOltTS\n\n[1965] 3 S.C.R.\n\npresenting it for payment, and the banker becomes in- A solvent, the debtor is discharged on account of the !aches of the. creditor.\" In Ii ob kins v. Ware('), it was held that a creditor who takes from his debtx's agent on account of the debt the cheque of the agent, is bound to present it for payment within a reasonable time; and if he fails to do so and by his delay alters for the worse the posi- B tion of the debtor, the debtor is d'scharged, although he was not a party to the cheque. In the old case of Chamblerlyn v. Delarive('), it was held that if a creditor accepting a note or draft of his debtor upon a third person holds it an unreasonable time before he demands the money, and the person upon whom. it is drawn becomes insolvent, it is the creditor's own loss, though the draft be C not a bill of exchange or negotiable.\n\nNow, in the instant case, the respondents accepted from their debtors, the appellants, a cheque drawn by a third party on the Tripura Modern Bank and endorsed by the appellants. The respondents through their collecting agents, the Calcutta Commercial D Bank, presented the cheque for collection to the Tripura Modern Bank, and instead of obtaining cash payment, received. a draft drawn by the Sibsagar Branch of the Tripura Modern Bank on its Head Office .. Having accepted this draft in course of collection of the cheque, the respondents vis-a-vis the appellants were in no better position than they would have been,· if they had accepted E the draft from the appellants d'rectly as conditional payment of the cheque. In the circumstances, the respondents owed a duty to the appellants to present the draft for payment within a reasonable time. The draft could be presented for payment at any time during the period of three months from the date of its issue. Instead of presenting the draft for payment, the respondents' collecting agents F kept it in their hands, and made no attempts to cash it. P.W. 3, an emPJoyee of the Calcutta Commercial Bank, said that the draft, was sent by the Gauhati Office of the Bank to its head office by registered post, but the head office had closed its business and the draft came back to the Gauhati office undelivered. The closure of the business of the collecting agents was not a lawful excuse for not G obtaining delivery of the draft and not presenting it for payment within a reasonable time. P.W. 3 admitted that had the draft been presented for payment to the Tripura Modern Bank before October 16, 194R, it would have been paid on presentation, and the money . could not be realised only because the Calcutta Commercial Bank had closed in the meantime. The Tripura Modern Bank closed its R business on October 16, 1948. Because of its inability to pay its debts, the Tripura Modern Bank is now working under a scheme of arrangement. The failiure of the respondents and their agents to cash the draft within a reasonable time altered the position of the appellants for the worse, and caused prejudice to them. In the circumstances, the respondents must be regarded as having kept the\n\nI') L. R. [1869] 4 Ex. 268.\n\n(1) 2 Wils. K. B. 353; 95 E.R. 854.\n\nRA}!LAL V. McHANLAL (Mudh.otkar, J.) 107\n\nA draft in absolute payment of the cheque. The cheque must be treated as duly paid and consequently, the original debt stood discharged.\n\nThe High Court was 'n error in holding that the failure to obtain payment of the draft was not due to the !aches of the respondents' collecting agents. In one part of the judgment, the High B Court wrongly assumed. contrary to fact, that the TriJYura Modem Bank had stopped business on September 16, 1948 and therefore the draft could not be cashed on oresentation, whereas, in fact. the Tripura Modern Bank had stopped business a month later on October 16, 1948. Moreover, the High Court wrongly assumed that the appellants did not suffer any loss on account of the delay in the C presentation of the draft. There 's clear evidence on the record that\n\nthe draft would have been cashed, if it had been presented for payment before October 16, 1948.\n\nMr. Chatterjee also contended that the respondents' collecting agents must be deemed to have accepted the demand draft on D September 14, 1948 as absolute payment of the cheque, and that the cheque was. in the eye of law, paid and discharged on that date. There is a lengthy discussion on this point in the j'udgment of the H; gh Court. but we do not think it necessary to decide this question.\n\nIn the result. the appeal is allowed, the judgment and decree E passed by the High Court are set aside, and those of the trial Court are restored. The respondents shall pay to the appellants the costs in this Court. The parties will pay and bear the'r own costs in the Courts below.\n\nMudbolkar, J. I agree with my brother Bachawat that this F appeal should be allowed; but I would prefer to rest my decision upon a different ground.\n\nIt is not necessary to repeat here the facts which have been set out in my learned brother's j, udgment. Mr. N. C. Chatter.iee, appearing for the defendants-appellants, urged two grounds, the first of which was that the plaintiffs-respondents had accepted the G draft for Rs. 9,455/- dated September 14, 1948 drawn by the Tnpura Modern Bank, S1bsagar on its Head Office at Calcutta in payment of the cheque for _Rs. 9,461-4-0 drawn on the Tripura Modern .Bank, S1bsagar wh•ch .the appellants had endorsed in favour of the respondents in satisfaction of the amount due upon that cheque and that, therefore, the subsequent dishonour of the H draft would not revive the appellants' liability to pay Rs. 9,455/- to the respondents. The other ground was 'that the appellants were\n\nischarged fro.m liability because of the !aches of the respondents m not presentmg the draft for encashment within reasonable time of the drawing of that draft. My learned brother has'rested his decision on the second ground. In my view, however, it is not necessary to express any opinin upon the second ground as the first ground urged by Mr. Chattef)ee 1s a good answer to the respondent's claim.\n\nSUPREME\n\nCOUR1' n.EPOR'fS [J 965] 3 il.C.R.\n\nIt is a well accepted rule of English law, wh'ch has been ap- A -plied in this country also, that when a debt becomes due the debtor must tender to the creditor the exact amount of the debt in cash or other legal tender and that where a cheque is tendered by the debtor to the creditor the payment may be absolute or conditional, the strong presumption being in favom of conditional payment. (see Chalmers on Bills of Exchange, p. 301, 12th ed.). There- B fore, when the respondents accepted the cheque drawn by Messrs Nathuram Jaidayal of Sibsagar in favour of the appellants and endorsed by the appellants in their favour and sent it to the Calcutta Commercial Bank Ltd., Gauhati Branch for collection they must nave accepted ; t as conditional payment. The respondents' bank, instead of collecting cash from the Tripura Modern Bank Ltd., C_ Sibsagar, sought to collect the amount by draft. The reason for this given by Debendra Chandra Mazumdar, P.W. 3. who was A'-\n\nsistant Accountant at the Gauhati Branch of the Calcutta Commercial Bank Ltd. at the relevant time was that the Bank 'usuallv collected money from other banks by draft. There is nothing to ind'cate in his evidence that this was the prevailing practice in the D Banks carrying on business in Assam. According to him, the respondents' bank asked for a draft payable at Gauhati but the Tri- -pura Modern Bank Ltd. sent one payable at Calcutta. The respondents' bank, however, accepted the draft and sent it by registered post to Calcutta for collection. Some time thereafter the respondents' bank closed business and the demand draft was returned E undelivered. The respondents' Bank made over the draft to the respondents. It may be mentioned thatthough the Tripura Modern Bank Ltd., had branch at Gauhati the respondents' Bank did not object to a draft payable at Calcutta thinking that the money due thereunder cauld be collected earlier from the Calcutta branch of F the Tripura Modern Bank. The matter, however, did not rest there.\n\nAfter the respondents' Bank went into liquidation the respondents wrote a letter on November 19, 1948 to the Agent of the Tripura Modern 'Bank Ltd., Calcutta saying that tlie demand draft belonged to them and not to the Calcutta Commercial Bank Ltd., who were only acting as their agents for collection purposes and that G the amount for which the draft was drawn should be paid to them and not to the Calcutta Commercial Bank or any one on its behalf. This letter clearly shows that the respondents accepted the 'draft in full payment of the amount due to them under the cheque which the appellants had endorsed in their favour. Thus, though the cheque endorsed by the appellants in favour of the respondents H was only a conditional payment of the amount for which the cheque was drawn the respondents by accepting the demand draft drawn by the Tripura Modern Bank, Sibsagar on its Calcutta Branch must be deemed to have accepted that draft as a legal tender or as absolute payment of the amount payable under the cheqite endorsed in their favour by the appellant. Their rights thereafter would rest only upon the demand draft and not upon thl'. original debt which the appellant owed to them. It may be mentioned that the\n\nltAMLAL v. MOllANLAL (Mudholkar, J.) 109\n\nA Trioura Modem Bank harl not gone into liquidation till a month\n\nlater and would, as stated by Debendra Chandra Mazumdar, P.W. 3 have been able to meet the draft had it been presented to its Calcutta Branch within reasonable time from the date on which it was drawn. It is because tbe respondents' Bank went into liquidation just about the time the registered letter containing the draft B was sent to Calcutta and no one took delivery of it that the draft could not be presented to the Calcutta Branch of the Tripura Modern Bank. The remedy of the respondents, therefore, could be against their own bank, that is, the Calcutta Commercial Bank or against the Tripura Modern Bank but certainly not against the appellants. Reliance, however, was placed by Mr. S. C. Nath for the C respondents upon the letter dated September JO, 1949 written by the appellant to the respondents in which the appellant wrote as follows.\n\n\" ............ and received your letter. You wrote that the payment of Rs. 9 ,461-4-0 had not been received. Please get the cheque D back. We have written to the drawer, which please note.\"\n\nAccording to learned counsel, therefore, the appellant must be deemed to have accepted its liability upon the cheque which it had endorsed in favour of the respondents. There is no reference in this letter to the demand draft and it is quite clear therefore what the appellant said was in ignorance of the fact that the respondents' bank had accepted a demand draft in payment of the E cheque. It may be mentioned that the Tripura Modern Bank, Sibsagar had actually debited the account of the drawer of the cheque .. with the amount for which the cheque had been drawn. The cheque \" had thus been honoured by them. But instead of paying cash they issued a demand draft at the instance of the respondents' bank.\n\nThis letter, therefore, does not improve matters for the respon- F dents. •\n\n. For these reasons the appeal is allowed, the decree. of the High Court is set aside and that of the trial court restored. The respondents will pay. the appellants' costs in this Court and in the Courts below and bear their own costs.\n\nAppeal allowed.\n\nL/B(D)2SCI-9", "total_entities": 74, "entities": [{"text": "RAMLAL ONKARMAL FIRM", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "RAMLAL ONKARMAL FIRM", "offset_not_found": false}}, {"text": "MOHANLAL J\"OGANI RICE AND ATIA MILLS", "label": "RESPONDENT", "start_char": 25, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "MOHANLAL JOGANI RICE AND ATIA MILLS", "offset_not_found": false}}, {"text": "B (RAGHUBAR DAYAL, J.", "label": "JUDGE", "start_char": 81, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL*", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 103, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "R. MUDHOLKAR", "offset_not_found": false}}, {"text": "BACHAWAT", "label": "JUDGE", "start_char": 124, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "BACHAWAT", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 139, "end_char": 151, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Tripura Bank", "label": "ORG", "start_char": 705, "end_char": 717, "source": "ner", "metadata": {"in_sentence": "On September, 4, 1948, the respondents forwarded the cheque to their bankers, a Gauhati Bankwho, in turn, sent the cheque to the Tripura Bank at Sibsagar for encashment."}}, {"text": "Sibsagar", "label": "GPE", "start_char": 721, "end_char": 729, "source": "ner", "metadata": {"in_sentence": "On September, 4, 1948, the respondents forwarded the cheque to their bankers, a Gauhati Bankwho, in turn, sent the cheque to the Tripura Bank at Sibsagar for encashment."}}, {"text": "Calcutta", "label": "GPE", "start_char": 917, "end_char": 925, "source": "ner", "metadata": {"in_sentence": "That bank debited the amount of the cheque to the account of the third party and sent to the respondent's Gauhati Bank a draft which was payable at its own Head Office at Calcutta."}}, {"text": "Septmber 17, 1948", "label": "DATE", "start_char": 1197, "end_char": 1214, "source": "ner", "metadata": {"in_sentence": "In the meantime, the respondents bank closed its business on\n\nSeptmber 17, 1948 and was ordered to be wound up."}}, {"text": "Tripura B•nk", "label": "ORG", "start_char": 1469, "end_char": 1481, "source": "ner", "metadata": {"in_sentence": "Upon the failure of their attempts to obtain payment of the draft amount from the Tripura B•nk, the respondents instituted a suit against the appellants claiming payment of their dues on the ground that the cheque dated August 31, 1948 was received by the respondents as a conditional payment, and as the cheque had not been cashed, the respondents were entitled to enforce their original claim."}}, {"text": "August 31, 1948", "label": "DATE", "start_char": 1607, "end_char": 1622, "source": "ner", "metadata": {"in_sentence": "Upon the failure of their attempts to obtain payment of the draft amount from the Tripura B•nk, the respondents instituted a suit against the appellants claiming payment of their dues on the ground that the cheque dated August 31, 1948 was received by the respondents as a conditional payment, and as the cheque had not been cashed, the respondents were entitled to enforce their original claim."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 1906, "end_char": 1919, "source": "ner", "metadata": {"in_sentence": "On appeal to the Supreme Court, HELD: (per Raghubar D•yal, Bachawat and Ramaswami, JJ)- Although the respondents originally received the cheque as -a condi- -6 tional payment of their dues, and if nothing else had happened, the ori!\\inal debt would have revived on non-payment of the cheque, havmg regard to the !"}}, {"text": "Raghubar D•yal", "label": "JUDGE", "start_char": 1932, "end_char": 1946, "source": "ner", "metadata": {"in_sentence": "On appeal to the Supreme Court, HELD: (per Raghubar D•yal, Bachawat and Ramaswami, JJ)- Although the respondents originally received the cheque as -a condi- -6 tional payment of their dues, and if nothing else had happened, the ori!\\inal debt would have revived on non-payment of the cheque, havmg regard to the !"}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 1948, "end_char": 1956, "source": "ner", "metadata": {"in_sentence": "On appeal to the Supreme Court, HELD: (per Raghubar D•yal, Bachawat and Ramaswami, JJ)- Although the respondents originally received the cheque as -a condi- -6 tional payment of their dues, and if nothing else had happened, the ori!\\inal debt would have revived on non-payment of the cheque, havmg regard to the !", "canonical_name": "BACHAWAT"}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 1961, "end_char": 1970, "source": "ner", "metadata": {"in_sentence": "On appeal to the Supreme Court, HELD: (per Raghubar D•yal, Bachawat and Ramaswami, JJ)- Although the respondents originally received the cheque as -a condi- -6 tional payment of their dues, and if nothing else had happened, the ori!\\inal debt would have revived on non-payment of the cheque, havmg regard to the !", "canonical_name": "V. RAMASWAMI"}}, {"text": "Art. 1079", "label": "PROVISION", "start_char": 2515, "end_char": 2524, "source": "regex", "metadata": {"statute": null}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 2691, "end_char": 2700, "source": "ner", "metadata": {"in_sentence": "per Mudholkar. ,", "canonical_name": "R. MUDHOLKAR"}}, {"text": "Tripura Bank", "label": "RESPONDENT", "start_char": 2980, "end_char": 2992, "source": "ner", "metadata": {"in_sentence": "Furthermore, after the resrxmdent bank went into J:quidation, the respondents wrote to the Tripura Bank stating that the\n\nlOJ\n\nSUPREME\n\nCOURT\n\nREPORTS (1965] 3 s.o."}}, {"text": "N.C. Chatterjee", "label": "LAWYER", "start_char": 4128, "end_char": 4143, "source": "ner", "metadata": {"in_sentence": "N.C. Chatterjee and D.N. Mukherjee.", "canonical_name": "N. C. Chatter.iee"}}, {"text": "D.N. Mukherjee", "label": "LAWYER", "start_char": 4148, "end_char": 4162, "source": "ner", "metadata": {"in_sentence": "N.C. Chatterjee and D.N. Mukherjee."}}, {"text": "D S.C. Nath", "label": "LAWYER", "start_char": 4185, "end_char": 4196, "source": "ner", "metadata": {"in_sentence": "D S.C. Nath, P.K. Chatterjee for R. Gopa/akrishnan, for the respondent.", "canonical_name": "D S.C. Nath"}}, {"text": "P.K. Chatterjee", "label": "LAWYER", "start_char": 4198, "end_char": 4213, "source": "ner", "metadata": {"in_sentence": "D S.C. Nath, P.K. Chatterjee for R. Gopa/akrishnan, for the respondent."}}, {"text": "R. Gopa", "label": "LAWYER", "start_char": 4218, "end_char": 4225, "source": "ner", "metadata": {"in_sentence": "D S.C. Nath, P.K. Chatterjee for R. Gopa/akrishnan, for the respondent."}}, {"text": "BACHAWAT", "label": "JUDGE", "start_char": 4290, "end_char": 4298, "source": "ner", "metadata": {"in_sentence": "The Judgment of RAGHUBAR DAYAL, BACHAWAT and RAMA- SWAMJ JJ.", "canonical_name": "BACHAWAT"}}, {"text": "RAMA- SWAMJ", "label": "JUDGE", "start_char": 4303, "end_char": 4314, "source": "ner", "metadata": {"in_sentence": "The Judgment of RAGHUBAR DAYAL, BACHAWAT and RAMA- SWAMJ JJ.", "canonical_name": "V. RAMASWAMI"}}, {"text": "BACH~WAT J. MUDHOLKAR", "label": "JUDGE", "start_char": 4336, "end_char": 4357, "source": "ner", "metadata": {"in_sentence": "was delivered by BACH~WAT J. MUDHOLKAR J. delivered a separate Judgment."}}, {"text": "Nathuram Ja:dayal of Sibsagar", "label": "OTHER_PERSON", "start_char": 4841, "end_char": 4870, "source": "ner", "metadata": {"in_sentence": "The cheque was drawn by a third party, Messrs. Nathuram Ja:dayal of Sibsagar on the Tripura Mo::!ern Bank, Sibsagar Branch, in favour of the appellants, who endorsed it to the respondents."}}, {"text": "September 4, 1948", "label": "DATE", "start_char": 4986, "end_char": 5003, "source": "ner", "metadata": {"in_sentence": "On September 4, 1948, the respondents sent the clieque to\n\ntheir bankers, the Calcutta Commercial Bank, Gauhati for collection."}}, {"text": "Calcutta Commercial Bank, Gauhati", "label": "ORG", "start_char": 5061, "end_char": 5094, "source": "ner", "metadata": {"in_sentence": "On September 4, 1948, the respondents sent the clieque to\n\ntheir bankers, the Calcutta Commercial Bank, Gauhati for collection."}}, {"text": "Tripura Modern Bank, Sibsagar", "label": "ORG", "start_char": 5189, "end_char": 5218, "source": "ner", "metadata": {"in_sentence": "On the same day, the Calcutta Commercial Bank, Gauhati sent the cheque to the Tripura Modern Bank, Sibsagar\n\nfor encashment."}}, {"text": "Nahuram Jaidayal", "label": "ORG", "start_char": 5321, "end_char": 5337, "source": "ner", "metadata": {"in_sentence": "Messrs Nahuram Jaidayal with the sum of Rs."}}, {"text": "Calcutta Commerci3l Bank, Gauhati", "label": "ORG", "start_char": 5445, "end_char": 5478, "source": "ner", "metadata": {"in_sentence": "6·4-0 on account of commission charges, sent to the Calcutta Commerci3l Bank, Gauhati a draft for Rs."}}, {"text": "September 14, 1948", "label": "DATE", "start_char": 5509, "end_char": 5527, "source": "ner", "metadata": {"in_sentence": "9,435/- dated September 14, 1948 towards II payment of the cheque."}}, {"text": "Calcutta Commercial Bank", "label": "ORG", "start_char": 5848, "end_char": 5872, "source": "ner", "metadata": {"in_sentence": "On receipt of the draft, the Calcutta Commercial Bank, Gauhati sent it to the'r Head Office at Calcutta for colh; ction.. But the Calcutta Commercial Bank never presented the draft to the Tripura Modern Bank, and made no attempts to collect the amount of the draft."}}, {"text": "Tripura Modern Bank", "label": "ORG", "start_char": 5906, "end_char": 5925, "source": "ner", "metadata": {"in_sentence": "On receipt of the draft, the Calcutta Commercial Bank, Gauhati sent it to the'r Head Office at Calcutta for colh; ction.. But the Calcutta Commercial Bank never presented the draft to the Tripura Modern Bank, and made no attempts to collect the amount of the draft."}}, {"text": "September 18, 1948", "label": "DATE", "start_char": 6161, "end_char": 6179, "source": "ner", "metadata": {"in_sentence": "RAMLAL v. MUHANLAL (Bach.iwat, J.) 105\n\nA In the meantime, the respondents wrote to the appellants informing them that cash payment for the cheque has not been recdved, and on September 18, 1948 the appellants replied asking the respondents to get back the cheque."}}, {"text": "September 17, 1948", "label": "DATE", "start_char": 6307, "end_char": 6325, "source": "ner", "metadata": {"in_sentence": "On September 17, 1948, the Calcutta Commercial Bank closed its business, and subsequently, it was B ordered to be wound up."}}, {"text": "October 16, 1948", "label": "DATE", "start_char": 6431, "end_char": 6447, "source": "ner", "metadata": {"in_sentence": "On October 16, 1948, the Tripura Modern\n\nBank also closed its bus'ness, and in view of its inability to pay its dues, was compelled to enter into a scheme of arrangement with its creditors."}}, {"text": "Tripura Modern\n\nBank", "label": "ORG", "start_char": 6453, "end_char": 6473, "source": "ner", "metadata": {"in_sentence": "On October 16, 1948, the Tripura Modern\n\nBank also closed its bus'ness, and in view of its inability to pay its dues, was compelled to enter into a scheme of arrangement with its creditors."}}, {"text": "November 19, 1948", "label": "DATE", "start_char": 6622, "end_char": 6639, "source": "ner", "metadata": {"in_sentence": "On November 19, 1948, the respondents requested the Tr, ipura Modern Bank to pay the amount of the draft to them and not to C the Calcutta Commercial Bank."}}, {"text": "ipura Modern Bank", "label": "ORG", "start_char": 6675, "end_char": 6692, "source": "ner", "metadata": {"in_sentence": "On November 19, 1948, the respondents requested the Tr, ipura Modern Bank to pay the amount of the draft to them and not to C the Calcutta Commercial Bank."}}, {"text": "March 8, 1949", "label": "DATE", "start_char": 6891, "end_char": 6904, "source": "ner", "metadata": {"in_sentence": "On March 8, 1949, the respondents instituted the suit, out of which the appeal arises, claiming payment of their dues from the appellants on the footing that the cheque dated D August 31, 1948 was received by the respondents as a conditional payment, and as the cheque was not cashed, the respondents were entitled to enforce their original claim."}}, {"text": "Subordinate Judge, Lower Assam District", "label": "COURT", "start_char": 7240, "end_char": 7279, "source": "ner", "metadata": {"in_sentence": "The Subordinate Judge, Lower Assam District, dismissed the suit."}}, {"text": "August 3], 1948", "label": "DATE", "start_char": 7534, "end_char": 7549, "source": "ner", "metadata": {"in_sentence": "E The High Court rightly held that the respondents originally received the cheque dated August 3], 1948 as a conditional payment of their dues, and if nothing else happened, the original debt would have revived on non-payment of the cheque."}}, {"text": "Chitty", "label": "GPE", "start_char": 8003, "end_char": 8009, "source": "ner", "metadata": {"in_sentence": "In Chitty on Contracts, 22nd &In.,"}}, {"text": "Art. 1079", "label": "PROVISION", "start_char": 8035, "end_char": 8044, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta Commercial D Bank", "label": "ORG", "start_char": 9895, "end_char": 9921, "source": "ner", "metadata": {"in_sentence": "The respondents through their collecting agents, the Calcutta Commercial D Bank, presented the cheque for collection to the Tripura Modern Bank, and instead of obtaining cash payment, received."}}, {"text": "Gauhati", "label": "GPE", "start_char": 10855, "end_char": 10862, "source": "ner", "metadata": {"in_sentence": "P.W. 3, an emPJoyee of the Calcutta Commercial Bank, said that the draft, was sent by the Gauhati Office of the Bank to its head office by registered post, but the head office had closed its business and the draft came back to the Gauhati office undelivered."}}, {"text": "October 16, 194R", "label": "DATE", "start_char": 11299, "end_char": 11315, "source": "ner", "metadata": {"in_sentence": "P.W. 3 admitted that had the draft been presented for payment to the Tripura Modern Bank before October 16, 194R, it would have been paid on presentation, and the money ."}}, {"text": "V. McHANLAL", "label": "JUDGE", "start_char": 11971, "end_char": 11982, "source": "ner", "metadata": {"in_sentence": "RA}!LAL V. McHANLAL (Mudh.otkar, J.) 107\n\nA draft in absolute payment of the cheque."}}, {"text": "Mudh.otkar", "label": "JUDGE", "start_char": 11984, "end_char": 11994, "source": "ner", "metadata": {"in_sentence": "RA}!LAL V. McHANLAL (Mudh.otkar, J.) 107\n\nA draft in absolute payment of the cheque.", "canonical_name": "R. MUDHOLKAR"}}, {"text": "TriJYura Modem Bank", "label": "ORG", "start_char": 12385, "end_char": 12404, "source": "ner", "metadata": {"in_sentence": "contrary to fact, that the TriJYura Modem Bank had stopped business on September 16, 1948 and therefore the draft could not be cashed on oresentation, whereas, in fact."}}, {"text": "September 16, 1948", "label": "DATE", "start_char": 12429, "end_char": 12447, "source": "ner", "metadata": {"in_sentence": "contrary to fact, that the TriJYura Modem Bank had stopped business on September 16, 1948 and therefore the draft could not be cashed on oresentation, whereas, in fact."}}, {"text": "Chatterjee", "label": "OTHER_PERSON", "start_char": 12897, "end_char": 12907, "source": "ner", "metadata": {"in_sentence": "Mr. Chatterjee also contended that the respondents' collecting agents must be deemed to have accepted the demand draft on D September 14, 1948 as absolute payment of the cheque, and that the cheque was.", "canonical_name": "Chatterjee"}}, {"text": "Mudbolkar", "label": "JUDGE", "start_char": 13573, "end_char": 13582, "source": "ner", "metadata": {"in_sentence": "Mudbolkar, J. I agree with my brother Bachawat that this F appeal should be allowed; but I would prefer to rest my decision upon a different ground.", "canonical_name": "R. MUDHOLKAR"}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 13611, "end_char": 13619, "source": "ner", "metadata": {"in_sentence": "Mudbolkar, J. I agree with my brother Bachawat that this F appeal should be allowed; but I would prefer to rest my decision upon a different ground.", "canonical_name": "BACHAWAT"}}, {"text": "N. C. Chatter.iee", "label": "LAWYER", "start_char": 13832, "end_char": 13849, "source": "ner", "metadata": {"in_sentence": "Mr. N. C. Chatter.iee, appearing for the defendants-appellants, urged two grounds, the first of which was that the plaintiffs-respondents had accepted the G draft for Rs.", "canonical_name": "N. C. Chatter.iee"}}, {"text": "Tnpura Modern Bank", "label": "ORG", "start_char": 14045, "end_char": 14063, "source": "ner", "metadata": {"in_sentence": "9,455/- dated September 14, 1948 drawn by the Tnpura Modern Bank, S1bsagar on its Head Office at Calcutta in payment of the cheque for _Rs."}}, {"text": "S1", "label": "PROVISION", "start_char": 14065, "end_char": 14067, "source": "regex", "metadata": {"statute": null}}, {"text": "S1", "label": "PROVISION", "start_char": 14184, "end_char": 14186, "source": "regex", "metadata": {"statute": null}}, {"text": "Chattef)ee", "label": "OTHER_PERSON", "start_char": 14844, "end_char": 14854, "source": "ner", "metadata": {"in_sentence": "In my view, however, it is not necessary to express any opinin upon the second ground as the first ground urged by Mr. Chattef)ee 1s a good answer to the respondent's claim.", "canonical_name": "Chatterjee"}}, {"text": "Nathuram Jaidayal", "label": "OTHER_PERSON", "start_char": 15464, "end_char": 15481, "source": "ner", "metadata": {"in_sentence": "There- B fore, when the respondents accepted the cheque drawn by Messrs Nathuram Jaidayal of Sibsagar in favour of the appellants and endorsed by the appellants in their favour and sent it to the Calcutta Commercial Bank Ltd., Gauhati Branch for collection they must nave accepted ; t as conditional payment."}}, {"text": "Calcutta Commercial Bank Ltd., Gauhati", "label": "ORG", "start_char": 15588, "end_char": 15626, "source": "ner", "metadata": {"in_sentence": "There- B fore, when the respondents accepted the cheque drawn by Messrs Nathuram Jaidayal of Sibsagar in favour of the appellants and endorsed by the appellants in their favour and sent it to the Calcutta Commercial Bank Ltd., Gauhati Branch for collection they must nave accepted ; t as conditional payment."}}, {"text": "Tripura Modern Bank Ltd., C_ Sibsagar", "label": "ORG", "start_char": 15760, "end_char": 15797, "source": "ner", "metadata": {"in_sentence": "The respondents' bank, instead of collecting cash from the Tripura Modern Bank Ltd., C_ Sibsagar, sought to collect the amount by draft."}}, {"text": "Debendra Chandra Mazumdar", "label": "WITNESS", "start_char": 15867, "end_char": 15892, "source": "ner", "metadata": {"in_sentence": "The reason for this given by Debendra Chandra Mazumdar, P.W. 3."}}, {"text": "Calcutta Commercial Bank Ltd.", "label": "ORG", "start_char": 15963, "end_char": 15992, "source": "ner", "metadata": {"in_sentence": "who was A'-\n\nsistant Accountant at the Gauhati Branch of the Calcutta Commercial Bank Ltd. at the relevant time was that the Bank 'usuallv collected money from other banks by draft."}}, {"text": "Assam", "label": "GPE", "start_char": 16206, "end_char": 16211, "source": "ner", "metadata": {"in_sentence": "There is nothing to ind'cate in his evidence that this was the prevailing practice in the D Banks carrying on business in Assam."}}, {"text": "Tri- -pura Modern Bank Ltd.", "label": "ORG", "start_char": 16298, "end_char": 16325, "source": "ner", "metadata": {"in_sentence": "According to him, the respondents' bank asked for a draft payable at Gauhati but the Tri- -pura Modern Bank Ltd. sent one payable at Calcutta."}}, {"text": "Tripura Modern Bank Ltd.", "label": "ORG", "start_char": 16671, "end_char": 16695, "source": "ner", "metadata": {"in_sentence": "It may be mentioned thatthough the Tripura Modern Bank Ltd., had branch at Gauhati the respondents' Bank did not object to a draft payable at Calcutta thinking that the money due thereunder cauld be collected earlier from the Calcutta branch of F the Tripura Modern Bank."}}, {"text": "Tripura Modern 'Bank Ltd., Calcutta", "label": "ORG", "start_char": 17072, "end_char": 17107, "source": "ner", "metadata": {"in_sentence": "After the respondents' Bank went into liquidation the respondents wrote a letter on November 19, 1948 to the Agent of the Tripura Modern 'Bank Ltd., Calcutta saying that tlie demand draft belonged to them and not to the Calcutta Commercial Bank Ltd., who were only acting as their agents for collection purposes and that G the amount for which the draft was drawn should be paid to them and not to the Calcutta Commercial Bank or any one on its behalf."}}, {"text": "Trioura Modem Bank", "label": "PETITIONER", "start_char": 18220, "end_char": 18238, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that the\n\nltAMLAL v. MOllANLAL (Mudholkar, J.) 109\n\nA Trioura Modem Bank harl not gone into liquidation till a month\n\nlater and would, as stated by Debendra Chandra Mazumdar, P.W. 3 have been able to meet the draft had it been presented to its Calcutta Branch within reasonable time from the date on which it was drawn."}}, {"text": "S. C. Nath", "label": "LAWYER", "start_char": 18977, "end_char": 18987, "source": "ner", "metadata": {"in_sentence": "Reliance, however, was placed by Mr. S. C. Nath for the C respondents upon the letter dated September JO, 1949 written by the appellant to the respondents in which the appellant wrote as follows.", "canonical_name": "D S.C. Nath"}}, {"text": "September JO, 1949", "label": "DATE", "start_char": 19032, "end_char": 19050, "source": "ner", "metadata": {"in_sentence": "Reliance, however, was placed by Mr. S. C. Nath for the C respondents upon the letter dated September JO, 1949 written by the appellant to the respondents in which the appellant wrote as follows."}}]}
{"document_id": "1965_3_110_121_EN", "year": 1965, "text": "llO\n\nKESHARit':BAND IAISUKBAL\n\nTHE SHILLONG BANKING CORPORATION\n\nFebruary 16, 1965\n\n(RAGHUBAR DAYAL, J. R.\n\nMUDHOLKAR,\n\nR. S. BACHAWAT AND B\n\nV. RAMASWAMI, JJ.] Banker and Customer-Nature of relationship between.\n\nIndian Limitation Act (9 of 1908), Art. 81>--Mutual dealings between Banker and Customer-If article applicable.\n\nThe appellant had a combined overdraft and deposit account, C also described as a mutual open and current account, with the respondent bank. In December 1946, the respondent credited two chegues to the appellant's account one for Rs. 8,200 and the other for Rs. 600 and sent them for collection to the Shillong branch of the Bharati Central Bank, on which they were drawn. Instead of obtaining cash from that Bank, the respondent accepted a cheque on the Nath Bank. This the respondent did without consulting the D appellant and on its own responsibility. When the respondent presented the cheque to the Nath Bank, it was returned with a note \"full cover not received\". The respondent thereupon debited the appellant with the sum of Rs. 8,800 in the accounts without inform ing him.\n\nOn the instructions of the appellant, who was informed about the dishonouring of the cheque, the respoJldent accepted a demand draft from the Bharati Central Bank drawn on its Calcutta B branch for the amount. The Calcutta branch of the Bharati Central Bank however. requested the respondent to present it to the Shillong branch. The respondent presented the draft to the Shillong\\ branch of the Bharati Central Bank, but the Bank applied for moratorium and closed its business, in January 1947 and the draft was not cashed. In the proceedings for the reconstruction of the Bharati Central Bank, the respondent asked to h€ treated as a preferential .F creditor in respect of the amount of the draft, and was so treated.\n\nThe dealings between the appellant and respondent continued till December 1950. In May 1953, the respondent Bank was ordered to be wound up and the liquidator presented an application to 'the High Court under s. 45D of the Banking Companies Act, 1949, for settlement of the list of debtors, claiming a decree for about Rs. 6,000 and interest, against the appellant. The appellant resisted the claim but the High Court decreed it.\n\nG In the appeal to the Supreme Court, it was contended that (i) the respondent acted negligently and in breach of its duty as collecting agent of the appellant and was bound to give credit for .. the sum of Rs. 8,800 and (ii) the claim was barred by limitation.\n\nHELD: (per Raghubar Dayal, Bachawat and Ramaswami. JJ.)-\n\n(i) It was not shown that the respondent acted negli!iently or in H breach of its duties or contrary to any instructions given by the appellant or any lawful usages prevailing amongst bankers and therefore was not bound to give credit to the appellant for the sum of Rs. 8,800. r114 H] A banker entrusted by its customer With the collection of a cheque is bound to act according to the directions given by a customer, and in the absence of such directions, according to the usages prevailing at the place where the banker conducts his business\n\nKESliARICl!AND V. S.B. CO.RP. 111\n\nand applicable to the matter in hand. The banker is also J?ound to use reasonable skill and diligence in presenting and securmg payment of cheques and placing the proceeds to his customers' accounts and in taking such other steps as may be proper to secure the customer's interests. The respondent in the iristant case. received the two cheques for coJlection in the usual way as agent of the appel-. !ant and not with the intention of acquiring title to them. The appellant, instead of disowning the various acts of the respondent in respect of the collection of the cheques, had ratified them, By preferring a claim as creditor .in respect of 'the draft, in the 1-iquidation\n\nproceedings of the Bharati Central Bank, the respondent was not accepting the draft in satisfaction of its dues from the appellant. It was only preserving all the .rights in respect of the draft and was acting in his bes~ interests. fl14 A, F-H; 115 A-Bl\n\n(ii) The respondent gave loans on overdrafts and the appellanl made deposits. The loans and deposits created mutual obligations.\n\nSince the account was mutual and continued to be so until December 1950, the claim against the appellant was not barred by limitation having regard to s. 45 (0) of the Banking Companies Act.\n\n[116 B, E]\n\nPer Mudholkar, J. (Dissenting), the appellant's name could not be included in the list of the respondent's debtors. f121 A]\n\nWhere a customer hands in a cheque to his banker for collection, the banker accepting the performance of that duty becomes the agent of the customer for the purpose of collection. But if a banker credits a cheque in the customer's account with the bank, the banker would not necessarily be deemed to be the customer's agent, when he takes steps for collecting the amount payable under the cheque. The facts, that the cheques when paid in, were credited in the appellant's account with the respondent and that when the cheques were returned unpaid, the respondent made a debit entry against the appellant's account without informing the appellant show that the respondel).t accepted the position that it was acting in the matter not as the appellant's agent but as a payee, Since the appellant had a mutual. open and current account with the respondent, the respondent would, with respect to the amounts for whir.h the cheques were drawn, have become upon realisation of tl1e cheques drawn by the appellant an actual recipient of the money from the appellant. Therefoe. though it is true that the amount was not received by the respondent in cash it must be deemed to have received the sum either by reason of the fact that it obtained from the Bharati Central Bank a cheque for the amount on the Nath Bank, or by the acceptance of the demand draft. Having claimed as against the Bharati Central Bank to be treated as a preferential creditor for the sum of Rs. 8,800 whatever rights the respondent would be against that Bank and not against the appellant. f118 H; 120 A, C, F-Hl\n\nCIVIL APPELLATE JurusmcnoN: Civil Appeal No. 892 of 1963.\n\nAppeal by special leave from the judgment and order dated December 22, 1958, of the Assam High Court in Misc. (First) No. 39 of 1955.\n\nD. N. Mukherjee, for the appellant.\n\nP. K. Chatterjee, for the respondent.\n\nSUPREME\n\nCOURT REPORtS\n\n(1965] 3 S.C.R.\n\nThe Judgment of RAGHUBAR DAYAL, R. S.\n\nBACHAWAT and A\n\nv. RAMASWAMI, JJ. was delivered by BACHAWAT, J. MUDHOLKAR, J. delivered a separate Opinion.\n\nBachawat, J. The respondent is a banking company now in liquidation. The appellant had a combiµed overdraft and deposit account with the Shillong branch of the respondent. On December B 9, 1946, the appellant gave the respondent for collection two cheques for Rs. 8,200 and Rs. 600 respectively drawn on the Bharati Central Bank, Shillong. On receipt of the cheques, the respondent credited the appellant with the sum of Rs. 8,800 in the accounts.\n\nThe respondent then sent the cheques to the Bharati Central Bank, Shillong for collection . .Instead of paying cash, the Bharati Cenc tral Bank sent to the respondent a cheque dated December 9, 1946 for Rs. 8,800 drawn by the Bharati Central Bank on the Nath Bank, Shillong in favour of the respondent. The respondent accepted this cheque on its own responsibility without consulting the appellant. On December I 0, 1946, the respondent presented the cheque to the Nath Bank for payment. The Nath Bank returned D the cheque w'th the remark \"f:ull cover not received\". The respondent orally informed the appellant of the non-payment of the cheque on the Nath Bank, and on December 11, 1946 under oral instructions from the appellant, represented the cheque to Nath Bank for payment. The Nath Bank again returned the cheque with the remark \"ful.l cover not received\", and the respondent E thereupon debited the appellant with the sum of Rs. 8,800 in the accounts. On the same day, the respondent wrote to the Bharati Central Bank demanding cash payment of the two cheques drawn • on them and dated December 9. 1946. The respondent also contacted the appellant. Under instructions from the appellant, the refpondent accepted from the Bharati Central Bank a demand F draft for Rs. 8,800 dated December 13, 1946 drawn .by its Shillong Branch on its Calcutta Head Office towards payment of the two cheques. The respondent presented the draft to the Bharati Central Bank, Calcutta for payment, but instead of making payment, the Bharati Central Bank wrote on December 16, 1946 requesting the respondent to obtain payment from its Shillong Branch. The G respondent orally communicated this advice to the appellant. On several dates thereafter, the respondent presented the draft to the Bharati Central Bank for payment. but the draft was not paid. On January 2, 1947, the Bharati Central Bank closed its business.\n\nOn January 11, 1947,, the respondent wrote to the appellant H stating that it was holding the demand draft as also the cheque on the Nath Bank and would be glad to receive further instructions in the matter for necessary action. As the appellant refused to give any instructions, the respondent continued to hold the securities on account of the appellant. In respect of the draft, the respondent duly preferred a claim in the liquidati.on of the Bharati Central Bank, and was admitted as a preferential creditor for the amount\n\nKESHARICHAND v. s.n. CORP. (Bachr>wat, J.) 1!3\n\nA of the draft. On January 28. 1947, the appellant wrote to the respondent alleging that the respondent had accepted the. demand draft at its own risk and responsibility and was bound to give credit to the appellant for the sum of Rs. 8,800. The dealings between :he appellant and the respondent continued, and the last entry in the combined overdraft and deposit account is dated December B 29, 1950.\n\nOn February 26. 1953, a petition was presented in the Assam High Court for the winding up of the respondent. By order dated May 24. 1953, the respondent was ordered to be wound up. On June 28, 1954 the liquidator of the respondent Bank presented an applicat'on to the Assam High Court under s. 45(D) of the Banking Companies Act, 1949 for settlement of the list of debtors, claiming a decree for Rs. 5 .965-8-9 and interest against the appellant.\n\nThe appellant resisted the claim. The two issues, which are now material, are:-\n\n(J) Is the suit barred by l'mitation, and\n\n14) Whether the respondent is bound to give credit to the appellant for the sum of Rs. 8,800? •\n\nA learned single Judge of the Assam High Court answered both the issues in the negative, and decreed the claim. An appeal preferred to a Division Bench of the High Court was dismissed. The E appellant now appeals to this Court by special leave.\n\nThe main contention of the appellant in the Courts below was that the respondent had accepted the demand draft on its own responsibility. The High Court held tht the respondent accepted the draft w'th the cor..rnt and sanction of the appellant. This finding is no longer challenged. But the appellant before us contends that F the respondent having credited the appellant's a; count with the amount of the two cheques on the Bharati Central Bank and having accepted on its own responsibility from the Bharati Central Bank the cheque dated December 9, 1945 on the Nath Bank ought not to be allowed to say that it received the cheque on ac count of and as agent of the appellant, and that in any event the G respondent acted negl'gently and in breach of its duty as the collecting agent of the appellant and is bound to give credit for the sum of Rs. 8,800. These contentions in the present form were not raised in th~ Courts below. Nevertheless, we allowed the appellant to raise these contentions, but we think that there is no substance in them.\n\nAccording to the uncontradicted testimony of the witnes>\" called on behalf of the respondent, the two cheques on !he Bhara,.\n\nCentral Bank were entrusted by the appellant to the respondent for collection. In paragraph 2 of its objections, the appellant admitted that the cheques were entruste:I to the respondent for realis1tion. Bevond doubt. on Dec::mber 9, 1946 the respondent received the two cheques for collection in the usual way as agent of\n\nSUPlll!JIE\n\nCOURT\n\nREPORTS (1965] 3 s.c.R.\n\nthe appellant and not with the intention of acquiring title to them.\n\nA On the same day, the respondent credited the appellant's account with the amount of the cheques before the cheques were cleared.\n\nBut on December II, 1946, before the appellant drew upon this amount and as soon as the cheque on Nath Bank received in course of collection of the two cheques was dishonoured, the respondent debited the appellant's account with the like amount. It does not B appear that the credit entry .in the accounts was contemporaneously communicated to the appellant. Nor does the appellant prove any arrangement that the appellant was entitled to draw against the amount of the cheques before they were cleared. In the circumstances. the fact that the appellant's account was credited with the amount of the two cheques does not show that the respondent C ceased to be an agent for collection of the cheques.\n\nThe respondent duly presented the cheques on the Bharati Central Bank for payment. Instead of paying the cheques in cash. the Bharati Central Bank sent its own cheque on the Nath Bank.\n\nAccording to the uncontradicted testimony of the witness called D on behalf of the respondent, it was not the usual practice of the banks at ShillO!!g to collect cash in all .ses in respect of cheques entrusted for collection. When the respondent found that the drawee Bank instead of paying cash offered to pay by a cheque, the respondent acting in good faith in the int~'.'ests of the appellant, accepted the cheque on its own responsibility. On being in- E formed of the dishonour of the cheque on Nath Bank, the appellant adopted and ratified the respondent's acceptance of the cheque, and on that footing, asked the respondent to represent the cheque.\n\nSubsequently, the appellant instructed the respondent to accept 11 demand draft drawn by the Bharati Central Bank on the head office in lieu of its cheque on the Nath Bank, and approved of all F steps taken by the respondent in the matter of coUection of the draft. Instead of disowning the acts of the respondent in respect of the collection of the cheques on the Bharati Central Bank, the appellant ratified them. In the circumstances, it is not open to the appellant now to say that the respondent accepted the cheque on the Nath Bank or the draft of the Bharati Central Bank on the G respondent's own account and not as agent of the appellant.\n\nA banker entrusted by its customer with the collection of a cheque is bound to act according to the directions given by the customer, and in the absence of such directions, according to the usages prevailing at the place where the banker conducts his business and applicable to the matter in hand. The banker i~ also bound B to use reasonable skill and diligence in presenting and securing payment of the cheque and placing the proceeds to his customer's accounts and in taking such other steps as may be proper, to secure the customer's interests. In the instant case, it is not shown that the respondent acred negligently of in breach of its duties or contrary to any instructions given by the appellant or any lawful • usages prevailing amongst bankers at Shillong.\n\nKESIU.RICllAND V. 8.B, CLRP. (Bachalliat, J.) 115\n\nl There is no substance in the further contention of the appellant that by preferring a claim as creditor in respect of the draft in the liquidation of the Bharati Central Bank, the respondent accepted the draft in satisfaction of its dues from the appellant. The respondent owed a duty to the appellant to take steps In the liquidation proceedings for the realisation of the amount of the B draft. By preferring the claim, the respondent preserved all rights in respect of the draft and acted in the best interests of the appellant. In the circumstances, the Courts below rightly gave appropriate directions on the respondent for giving credit to the appellant for all sums which may be realised by the respondent from the Official Liqu; dator of the Bharati Central Bank. The Courts below C rightly answered issue No. 4 in the negative.\n\nThe next point in issue is whether the proceedings are governed by Art. 85 of the Indian Limitation Act, 1908, and if so, whether the suit is barred by limitation. The argument before us proceeded on the footing that an application under s. 45(0) of the D Banking Companies Act is governed by the Indian Limitation Act, and we must decide this case on that footing. But we express no opinion one way or the other on the question of the applicability of the Indian Limitation Act to an application under s. 45(0). Now, Art. 85 of the Indian Limitation Act, 1908 provides that the period of limitation for the balance due on a mutual, open and current E account, where there have been reciprocal demands between the parties is three years from the close of the year in which the last item admitted or proved is entered in the account; such year to be computed as in the account. It is not disputed that the account between the parties was at all times an open and current one. The dis\n\n1 pute is whether it was mutual during the relevant period.\n\nNow in the leading case of Hirada Basappa v. Gadigi Muddappa('). Holloway, Acting C. J. observed:\n\n\"To be mutual there must be transactions on each side creating independent obligations on the other, and not merely transactions which create obligations on the one side, those on the other being merely complete or partial discharges of such obligations.\"\n\nThese observations were followed and applied in Tea Financing Syndicate Ltd. v. Chandrakamal Bezbaruah(') and Monotosh B K. Chatterjee v. Central Calcutta Bank Ltd.('), and the first mentioned Calcutta case was approved by this Court in Hindustan Forest Company v. Lal Chand('). Holloway, Acting C.J. laid down the test of mutuality on a construction of s. 8 of Act XIV of 1859, though that section did not contain the words \"where there\n\n(') [1871) VI Modraa High Court Reports. 142, 144.\n\n(1) [1931) l.L.R. !\\80.I. 60\n\n(1) (1953] 91 C.L.J. 16.\n\n(') (1960) I $.C.R. 563.\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n[1965) 3 S.C.R.\n\nhave been reciprocal demands, between the parties\". The addition of A those words in the corresponding Art. 87 of Act IX of 187l, Art. 85 of Act XV of 1877 and Art. 85 of the Act of 1908 adopts and emphasises the test of mutuality laid down in the Madras case.\n\nIn the instant case. there were mutual dealings between the parties. The respondent Bank gave loans on overdrafts, and the appellant made deposits. The loans by the respondent created B obligations on the appellant to repay them. The respondent was under independent obligations to repay the amourit of the cash deposits and to account for the cheques, hundis and drafts deposited for collection. There were thus transactions on each side creating independent obligations on the other, and both sets of transactions were entered in the same account. The deposits made c by the appellant were not merely complete or partial discharges of its obligations to the respondent: There were shifting balances; on many occasions the balance was in favour of the appellant and on many other occasions. the balance was in favour of the respondent.\n\nThere were reciprocal demands between the part'es. and the account was mutual. This mutual account was fairly active up to D\n\nune 25, 1947. It is not shown that the account ceased to be mutual thereafter. The parties contemplated the possibility of .mutual dealings in future. The mutual account cont'nued until December 29, 1950 when the last entry in the account was made.\n\nIt is conceded on behalf of the appellant that if the account was mutual and continued to be so until December 29, 1950, the suit E is not barred by limitation, having regard to s. 45 (0) of the Banking Companies Act. The Courts below, therefore, rightly answered issue No. 1 in the negative.\n\nThe claim by the respondent on account of interest was contested in the Courts below, but that claim is no longer contested before us.\n\nThe High Court discussed at length the legal characteristics of a demand draft as also questions relating to the interpretation of s. 45(0) of the Banking Companies Act. In view of the contentions raised before us, those questions do not arise, and we do not propose to express any opinion thereon.\n\nIn the result, the appeal is dism'ssed with costs.\n\nMudholkar, J. I regret my inability to agree with the judgment of my learned brother Bachawat. This appeal arises out .of a petition made under s. 45-D of the Banking Companies Act, 1949 (] 0 of 1949) by 'the Liquidator of the respondent, the Shillong Ban~- ing Corporation for inclusion of the name of the appellant in the H list of debtors of the Bank. The liquidator filed a list of 20 debtors of the Company with necessary particulars in Annexure A, to the application. One of the debtors mentioned therein is the appellant and the amount of debt due from him to the Bank is stated therein to be Rs. 5,965-5-9. Annexure A appears to have been prepared in accordance with the rules framed underthe Banking Companies Act. The fourth item in the Annexure is \"Description of\n\nKESHARHHAND V. 8.B. CORP. (Murlho/br. J.)\n\n11 T\n\nA papers, writings and documents, if any, relating to each debt\". In respect of this item the following particulars ha vc been set out:\n\n\"A cheque for Rs. 8.800 on Bharati Central Bank Ltd., Shillong was realised by the Bank 'on behalf \"of the pcuty' by a Demand Draft on Calcutta Branch of the Bharati Central Bank Limited. but the said Demand-D; aft could not be realised due to the suspension of business by Bharati Central Bank Ltd. The Bank's claim to be treated as preferential Creditor has been adm; tted.\" A notice of this claim having been served on the appellant he preferred an objection before the Court. There, the appellant bad C contendd that the claim of the Bank is barred by time. Paras\n\n2, 3. and 5 of the objection are material and it would be convenient to set them out ; n full. They run as follows:\n\n\"2. That it is a fact that this opposite-party did give a cheque for Rs. 8,800 to the Bank on the Bharati Central Bank Ltd., Shillong for realisation in 1947 and in normal course it reafaed the amount in cash but either for its own convenience or for remitting its own money to Calcutta it accepted a draft from the Bharati Central Bank Limited on its branch at Calcutta without any instruction or ; ntimation to this opposite party and also this opposite-party withdrew their amount by a cheque after this and if in the meantime the said bank stopped its business this opposite-party cannot be held liable for the same.\n\n(3) That had the bank not received any cash payment in case of the opposite-party's cheque as it should have received it should have informed them in time. • * • * • •\n\n(5) That it ; s not a fact that the demand-draft was accepted by the bank instead of cash payment with any knowledge of this opposite-party and as such the claim of the Bank is false and frivolous.\" G Deka J., who heard the application framed four issues one of which related to limitation and the fourth was as follows:\n\n\"Issue No. 4, whether the plaintiff bank is bound to give credit to the defendant for a sum of Rs. 8,800 covered by a cheque or cheques on the Bharati Central Bank Limited, Shillong Branch?\" H The only oral evidence tendered was that of Narendra Nath Dutta, Assistant of the respondent Bank. Upon a cons; deration of the evidence of Dutta and the documents placed on record Deka J. found against the appellant on these issues and passed a decree in favour of the Bank for Rs. 5,965-5-9 .in addition to Rs. 2,000 by way of interest. He further allowed Rs. 300 as costs and 6 per cent p.a. inter1!61 on the decretal amount till realisation.\n\nAn appeal was preferred by the appellant under the Letters Patent\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n(1965] 3 8.C.B.\n\nand that having been dismissed he has come up before this court A by special leave. It is the case of the respondent Bank that the appellant had a mutual open and current account with the Bank.\n\nIt is upon that basis that they have met the appellant's contention that the suit was barred by time .. On December 9, 1946 the respondent credited two cheques to the appellant's account one for Rs. 8,200 and another for Rs. 600 and sent them for collection B to the Bharati Central Bank Ltd., Shillong Branch upon which they were drawn. Instead of obtaining cash from the Bharati Cen tral Bank the respondent obtained and accepted from that Bank a cheque on the Nath Bank Limited. This the respondent did, as ad- ' mitted by Dutta, without consulting the appellant. Dutta has further admitted that the respondent Bank obtained the cheque on C their own responsibility. They then presented the cheque to the Nath Bank on December 10, 1946. The Nath Bank returned the cheque with a note \"full cover not received\". According to the witness the Bank referred the matter to the appellant and with his specific instruction the cheque was presented the next day to the Nath Bank, when also it was returned. Thereafter, the witness pro- D ceeds, the respondent contected the appellant for instructions.\n\nOn December 13, 1946 they accepted a demand draft from the Bharati Central Bank for an identical amount which they sent to their Calcutta Branch for collection. When the demand draft was presented to the Calcutta Branch of the Bharati Central Bank they requested by letter dated December 16, 1946 to present it to the Shillong Branch. Then, according to Dutta. on the advice of the appellant they presented the draft to the Shillong Branch of the Bharati Central Bank. In the meanwhile the Bharati Central Bank had applied for moratorium and this demand draft was not cashed. It would appear that in the proceedings for reconstructing the Bharati Central Bank the respondent asked to be treated as preferential creditors in respect of the amount for which the draft had been made out and have been so treated. lt is contended on behalf of the appellant that the respondent having accepted the demand draft on their own responsibilicy and having sought to be treated as preferential creditors of the Bharati Central Bank and having in fact been so treated cannot now G turn round and say that the appellant's cheques were not honoured and that, therefore, they are entitled to claim the sum of Rs.5,965-5-9 and interest from him. The question to which I would address myse1f is whether the respondent has to be regarded as the appellant's agent only for the collection of these two cheques or whether they received these 'two cheques for being credited in the H mutual and open current account between themselves and the appellant. It is no doubt that where a customer hands in a cheque to his banker for collection the banker accepting the performance of that duty becomes the agent of the customer for the purpose of collection. But if a banker credits a cheque in the customer's account with the bank would the banker be necessarily deemed to be his agent when he takes the step of collecting the amount\n\nKESllARICBAND v. s. B. CORP. (Mudholk1r, J.) 119\n\nA payable under the cheque. If the customer makes an endorsement on the cheque to the effect that it is handed in for collection no difficulty would arise. But if there were no such endorsement what would be the position? The accepted position in banking law is that when a banker receives money from a customer he does not hold it in a fiduciary capacity. (see Practke and Law of Bank- B ing by H.P. Sheldon, 8th edn. p. 20 I). As the author points out\n\n\"To pay that money is 'deposited' with a banker is likely to cause misapprehension. What really happens is that the money is not deposited with, but lent to the banker. and all that the banker engages to do is to d; scharge the debt by paying over an equal amount when called upon.\" Sheldon has quoted the following ob- C servations of Lord Cottenham in Foley v. Hill (1948).\n\n\"Money, when paid into a bank, ceases altogether to be the money of the principal; it is then the money of the banker, who, is bound to return an equivalent by paying a similar sum to that deposited with him when he is asked for it. The money paid into the banker's is money known by the princ; pal to be placed there for the purpose of being under the control of the banker; it is then the banker's money; he is known to deal with it as his own; he makes what profit he can, which profit he retains to himself, by paying back only the principal, according to the custom of bankers in some places, or the principal and a small rate of interest, according to the custom of bankers in other places ......... That being established to be the relative situations of banker and customer, the banker is not an agent or factor, but he is a debtor.\" What would be the position if instead of paying in cash the custo- F mer hands in cheques or bills? With regard to this Sheldon has said as follows :\n\n\"In Joachimson v. Swiss Bank Corporation, 1921 Lord Justice Atkin gave an admirable summary of the position. He stated that the banker undertakes to receive money and collect bills for his customer's account, and G that money so received is not held in trust for the customer but borrowed from him with a promise to repay it or any part of it .. .. . .. .. against the customer's written order addressed to the bank at such branch.\" (pp. 201-202), In the appeal before us the two cheques for Rs. 600 and Rs. 8.200 s have not been placed on record and so we do not know in whose favour they were drawn and if they were drawn by the appellant in favour of \"self\" what endorsement he had made on the hack of the cheques. The cheques could have been drawn by the appellant either in his own favour or in favour of the. bank. Whichever be the position the fact remains that these two cheques were credited by him in his account with the respondent. That is not all. Since the appellant had a mutual open and current account\n\nSUPREME\n\nCOURT\n\nREPORTS [1965] 3 s.c.ii.\n\nwith the respondent it may well be that money was owing by him A to the respondent on that date and, therefore, he drew these two cheq'ues on the Bharati Central Bank and credited them in his account with the rei; pondent. Or it may be that the appellant merely credited the money in his own account even though nothing may have been owing from him to the respondent on that date.\n\nWhether it was one or the other the respondents would, with res- B peel to the amounts for which the cheques were drawn, have become actual recepients of the money from the appellant~ upon realisation of the cheques drawn by the appellant.\n\nIndeed, as the cheques were returned unpaid by the drawee bank the respondent have made a debit entry on December 11, 1960 of Rs. 8,800 against the appellant in his account with them. This C would show that the respondent accepted the position that they were acting in this matter not as the appellant's agents but as payees. This explains why, as admitted by Dutta. the respondent accepted from the Bharati Central Bank cheques on Nath Bank r>n their own responsibility instead of insisting upon cash. Indeed. as pointed out at p. 300 in Chalmers on Bills of Exchange (8th edl D \"consequently an authority to an agent to receive a payment due to his principal is not in itself an authority to receive it by bill or cheque\". Therefore, the respondents would not have acted in the way they did had they regarded themselves as merely agents of the appellant for collecting his cheques. Dutta has, in his evidence, stated that no formal note in writin_g was sent to the appellant by E the respondents about the dishonouring of the cheque by the Nath Bank. Nor did they inform him of having debited his account with Rs. 8.800. No doubt, according to him. after a demand draft was issued to them by the Bharati Central Bank the respondents informed the appellant. B'ut after that-draft was dishonoured on presentation. no information whatsoever was given to the appel- F !ant. This would further strengthen the conclusion that the respondents were acting for themselves at every stage after the cheques for Rs. 600 and Rs. 8,200 were credited in his account with them by the appellant. Therefore, though it is true that. the sum of Rs. 8,800 was not received by the respondent in cash they must be deemed to have received the sum either by reason of the fact G that they obtained from the Bharati Central Bank a cheque for Rs.· 8,800 on the Nath Bank or by the acceptance by them of a demand draft drawn by the Bharati Central Bank, Shillong, on their Calcutta Branch. It is difficult to see how they can hold the appellant, whose account with the Bharati Central Bank has been debited by that Bank to the extent of Rs. 8,800, as being still liable H upon those cheques. Whatever rights the respondents have. are against the Bharati Central Bank and not the appellant. Indeed, having claimed, as against the Bharati Central BanK to be treated as preferential creditors of that Bank to the t'une of Rs. 8,800, particularly on their own showing what was owing to them from the appellant was something less than Rs. 6,000 they cannot now he Reard to say that they merely acted as the appellant's agents.\n\nKESHARICHAND V. s. B. CORP. (Mudholkar, J.) 121\n\nA For these reasons, disagreeing with the High Court, I hold that the appellant's name cannot be included in the list of the respondent's debtors. I would, therefore, allow the appeal and dismiss the application of the Liquidator under s. 45-D of the Banking Companies Act in so far as it relates to the appellant, with costs throughout and would direct further that the respondents pay B the appellants costs both here and in the High Court.\n\nORDER BY COURT\n\nIn accordance with the opinion of the majority, this apcal is dismissed with costs.", "total_entities": 92, "entities": [{"text": "THE SHILLONG BANKING CORPORATION", "label": "RESPONDENT", "start_char": 31, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "THE SHILLONG BANKING CORPORATION", "offset_not_found": false}}, {"text": "February 16, 1965", "label": "DATE", "start_char": 65, "end_char": 82, "source": "ner", "metadata": {"in_sentence": "llO\n\nKESHARit':BAND IAISUKBAL\n\nTHE SHILLONG BANKING CORPORATION\n\nFebruary 16, 1965\n\n(RAGHUBAR DAYAL, J. R.\n\nMUDHOLKAR,\n\nR. S. BACHAWAT AND B\n\nV. RAMASWAMI, JJ.]"}}, {"text": "RAGHUBAR DAYAL, J.", "label": "JUDGE", "start_char": 85, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL, J.", "offset_not_found": false}}, {"text": "MUDHOLKAR", "label": "JUDGE", "start_char": 108, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "MUDHOLKAR", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 120, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "R. S.\n\nBACHAWAT", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 142, "end_char": 159, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Indian Limitation Act", "label": "STATUTE", "start_char": 214, "end_char": 235, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 81", "label": "PROVISION", "start_char": 249, "end_char": 256, "source": "regex", "metadata": {"linked_statute_text": "Indian Limitation Act", "statute": "Indian Limitation Act"}}, {"text": "Shillong", "label": "GPE", "start_char": 629, "end_char": 637, "source": "ner", "metadata": {"in_sentence": "600 and sent them for collection to the Shillong branch of the Bharati Central Bank, on which they were drawn."}}, {"text": "Bharati Central Bank", "label": "ORG", "start_char": 652, "end_char": 672, "source": "ner", "metadata": {"in_sentence": "600 and sent them for collection to the Shillong branch of the Bharati Central Bank, on which they were drawn."}}, {"text": "Nath Bank", "label": "ORG", "start_char": 782, "end_char": 791, "source": "ner", "metadata": {"in_sentence": "Instead of obtaining cash from that Bank, the respondent accepted a cheque on the Nath Bank."}}, {"text": "Calcutta", "label": "GPE", "start_char": 1287, "end_char": 1295, "source": "ner", "metadata": {"in_sentence": "On the instructions of the appellant, who was informed about the dishonouring of the cheque, the respoJldent accepted a demand draft from the Bharati Central Bank drawn on its Calcutta B branch for the amount."}}, {"text": "Shillong\\", "label": "GPE", "start_char": 1483, "end_char": 1492, "source": "ner", "metadata": {"in_sentence": "The respondent presented the draft to the Shillong\\ branch of the Bharati Central Bank, but the Bank applied for moratorium and closed its business, in January 1947 and the draft was not cashed."}}, {"text": "s. 45D", "label": "PROVISION", "start_char": 2041, "end_char": 2047, "source": "regex", "metadata": {"statute": null}}, {"text": "Banking Companies Act, 1949", "label": "STATUTE", "start_char": 2055, "end_char": 2082, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Supreme Court", "label": "COURT", "start_char": 2286, "end_char": 2299, "source": "ner", "metadata": {"in_sentence": "G In the appeal to the Supreme Court, it was contended that (i) the respondent acted negligently and in breach of its duty as collecting agent of the appellant and was bound to give credit for .. the sum of Rs."}}, {"text": "Raghubar Dayal", "label": "JUDGE", "start_char": 2537, "end_char": 2551, "source": "ner", "metadata": {"in_sentence": "HELD: (per Raghubar Dayal, Bachawat and Ramaswami.", "canonical_name": "RAGHUBAR DAYAL, J."}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 2553, "end_char": 2561, "source": "ner", "metadata": {"in_sentence": "HELD: (per Raghubar Dayal, Bachawat and Ramaswami.", "canonical_name": "Bachawat"}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 2566, "end_char": 2575, "source": "ner", "metadata": {"in_sentence": "HELD: (per Raghubar Dayal, Bachawat and Ramaswami."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 4379, "end_char": 4384, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 4404, "end_char": 4417, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 4436, "end_char": 4445, "source": "ner", "metadata": {"in_sentence": "[116 B, E]\n\nPer Mudholkar, J. (Dissenting), the appellant's name could not be included in the list of the respondent's debtors.", "canonical_name": "MUDHOLKAR"}}, {"text": "Assam High Court", "label": "COURT", "start_char": 6279, "end_char": 6295, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated December 22, 1958, of the Assam High Court in Misc. ("}}, {"text": "P. K. Chatterjee", "label": "LAWYER", "start_char": 6367, "end_char": 6383, "source": "ner", "metadata": {"in_sentence": "P. K. Chatterjee, for the respondent."}}, {"text": "R. S.\n\nBACHAWAT", "label": "JUDGE", "start_char": 6479, "end_char": 6494, "source": "ner", "metadata": {"in_sentence": "SUPREME\n\nCOURT REPORtS\n\n(1965] 3 S.C.R.\n\nThe Judgment of RAGHUBAR DAYAL, R. S.\n\nBACHAWAT and A\n\nv. RAMASWAMI, JJ.", "canonical_name": "R. S.\n\nBACHAWAT"}}, {"text": "A\n\nv. RAMASWAMI", "label": "JUDGE", "start_char": 6499, "end_char": 6514, "source": "ner", "metadata": {"in_sentence": "SUPREME\n\nCOURT REPORtS\n\n(1965] 3 S.C.R.\n\nThe Judgment of RAGHUBAR DAYAL, R. S.\n\nBACHAWAT and A\n\nv. RAMASWAMI, JJ."}}, {"text": "BACHAWAT", "label": "JUDGE", "start_char": 6537, "end_char": 6545, "source": "ner", "metadata": {"in_sentence": "was delivered by BACHAWAT, J. MUDHOLKAR, J. delivered a separate Opinion.", "canonical_name": "Bachawat"}}, {"text": "MUDHOLKAR", "label": "JUDGE", "start_char": 6550, "end_char": 6559, "source": "ner", "metadata": {"in_sentence": "was delivered by BACHAWAT, J. MUDHOLKAR, J. delivered a separate Opinion.", "canonical_name": "MUDHOLKAR"}}, {"text": "Bharati Central Bank, Shillong", "label": "ORG", "start_char": 6903, "end_char": 6933, "source": "ner", "metadata": {"in_sentence": "600 respectively drawn on the Bharati Central Bank, Shillong."}}, {"text": "Bharati Cenc tral Bank", "label": "ORG", "start_char": 7165, "end_char": 7187, "source": "ner", "metadata": {"in_sentence": ".Instead of paying cash, the Bharati Cenc tral Bank sent to the respondent a cheque dated December 9, 1946 for Rs."}}, {"text": "December 9, 1946", "label": "DATE", "start_char": 7226, "end_char": 7242, "source": "ner", "metadata": {"in_sentence": ".Instead of paying cash, the Bharati Cenc tral Bank sent to the respondent a cheque dated December 9, 1946 for Rs."}}, {"text": "Nath Bank, Shillong", "label": "ORG", "start_char": 7298, "end_char": 7317, "source": "ner", "metadata": {"in_sentence": "8,800 drawn by the Bharati Central Bank on the Nath Bank, Shillong in favour of the respondent."}}, {"text": "December I 0, 1946", "label": "DATE", "start_char": 7446, "end_char": 7464, "source": "ner", "metadata": {"in_sentence": "On December I 0, 1946, the respondent presented the cheque to the Nath Bank for payment."}}, {"text": "December 11, 1946", "label": "DATE", "start_char": 7715, "end_char": 7732, "source": "ner", "metadata": {"in_sentence": "The respondent orally informed the appellant of the non-payment of the cheque on the Nath Bank, and on December 11, 1946 under oral instructions from the appellant, represented the cheque to Nath Bank for payment."}}, {"text": "December 13, 1946", "label": "DATE", "start_char": 8333, "end_char": 8350, "source": "ner", "metadata": {"in_sentence": "8,800 dated December 13, 1946 drawn .by its Shillong Branch on its Calcutta Head Office towards payment of the two cheques."}}, {"text": "Bharati Central Bank, Calcutta", "label": "ORG", "start_char": 8487, "end_char": 8517, "source": "ner", "metadata": {"in_sentence": "The respondent presented the draft to the Bharati Central Bank, Calcutta for payment, but instead of making payment, the Bharati Central Bank wrote on December 16, 1946 requesting the respondent to obtain payment from its Shillong Branch."}}, {"text": "December 16, 1946", "label": "DATE", "start_char": 8596, "end_char": 8613, "source": "ner", "metadata": {"in_sentence": "The respondent presented the draft to the Bharati Central Bank, Calcutta for payment, but instead of making payment, the Bharati Central Bank wrote on December 16, 1946 requesting the respondent to obtain payment from its Shillong Branch."}}, {"text": "January 2, 1947", "label": "DATE", "start_char": 8887, "end_char": 8902, "source": "ner", "metadata": {"in_sentence": "On January 2, 1947, the Bharati Central Bank closed its business."}}, {"text": "January 11, 1947", "label": "DATE", "start_char": 8954, "end_char": 8970, "source": "ner", "metadata": {"in_sentence": "On January 11, 1947,, the respondent wrote to the appellant H stating that it was holding the demand draft as also the cheque on the Nath Bank and would be glad to receive further instructions in the matter for necessary action."}}, {"text": "January 28. 1947", "label": "DATE", "start_char": 9547, "end_char": 9563, "source": "ner", "metadata": {"in_sentence": "On January 28."}}, {"text": "December B 29, 1950", "label": "DATE", "start_char": 9909, "end_char": 9928, "source": "ner", "metadata": {"in_sentence": "The dealings between :he appellant and the respondent continued, and the last entry in the combined overdraft and deposit account is dated December B 29, 1950."}}, {"text": "February 26. 1953", "label": "DATE", "start_char": 9934, "end_char": 9951, "source": "ner", "metadata": {"in_sentence": "On February 26."}}, {"text": "May 24. 1953", "label": "DATE", "start_char": 10055, "end_char": 10067, "source": "ner", "metadata": {"in_sentence": "By order dated May 24."}}, {"text": "June 28, 1954", "label": "DATE", "start_char": 10115, "end_char": 10128, "source": "ner", "metadata": {"in_sentence": "On June 28, 1954 the liquidator of the respondent Bank presented an applicat'on to the Assam High Court under s. 45(D) of the Banking Companies Act, 1949 for settlement of the list of debtors, claiming a decree for Rs."}}, {"text": "s. 45(D)", "label": "PROVISION", "start_char": 10222, "end_char": 10230, "source": "regex", "metadata": {"statute": null}}, {"text": "Banking Companies Act, 1949", "label": "STATUTE", "start_char": 10238, "end_char": 10265, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "December 9, 1945", "label": "DATE", "start_char": 11385, "end_char": 11401, "source": "ner", "metadata": {"in_sentence": "But the appellant before us contends that F the respondent having credited the appellant's a; count with the amount of the two cheques on the Bharati Central Bank and having accepted on its own responsibility from the Bharati Central Bank the cheque dated December 9, 1945 on the Nath Bank ought not to be allowed to say that it received the cheque on ac count of and as agent of the appellant, and that in any event the G respondent acted negl'gently and in breach of its duty as the collecting agent of the appellant and is bound to give credit for the sum of Rs."}}, {"text": "Art. 85", "label": "PROVISION", "start_char": 16513, "end_char": 16520, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 16528, "end_char": 16555, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 45(0)", "label": "PROVISION", "start_char": 16684, "end_char": 16692, "source": "regex", "metadata": {"linked_statute_text": "the Indian Limitation Act, 1908", "statute": "the Indian Limitation Act, 1908"}}, {"text": "Banking Companies Act is governed by the Indian Limitation Act", "label": "STATUTE", "start_char": 16702, "end_char": 16764, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 16910, "end_char": 16924, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 45(0)", "label": "PROVISION", "start_char": 16949, "end_char": 16957, "source": "regex", "metadata": {"linked_statute_text": "But we express no opinion one way or the other on the question of the applicability of the Indian Limitation Act", "statute": "But we express no opinion one way or the other on the question of the applicability of the Indian Limitation Act"}}, {"text": "Art. 85", "label": "PROVISION", "start_char": 16964, "end_char": 16971, "source": "regex", "metadata": {"linked_statute_text": "But we express no opinion one way or the other on the question of the applicability of the Indian Limitation Act", "statute": "But we express no opinion one way or the other on the question of the applicability of the Indian Limitation Act"}}, {"text": "Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 16979, "end_char": 17006, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 8", "label": "PROVISION", "start_char": 18201, "end_char": 18205, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 87", "label": "PROVISION", "start_char": 18565, "end_char": 18572, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 85", "label": "PROVISION", "start_char": 18592, "end_char": 18599, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 85", "label": "PROVISION", "start_char": 18622, "end_char": 18629, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras", "label": "GPE", "start_char": 18710, "end_char": 18716, "source": "ner", "metadata": {"in_sentence": "85 of the Act of 1908 adopts and emphasises the test of mutuality laid down in the Madras case."}}, {"text": "D\n\nune 25, 1947", "label": "DATE", "start_char": 19685, "end_char": 19700, "source": "ner", "metadata": {"in_sentence": "This mutual account was fairly active up to D\n\nune 25, 1947."}}, {"text": "December 29, 1950", "label": "DATE", "start_char": 19874, "end_char": 19891, "source": "ner", "metadata": {"in_sentence": "The mutual account cont'nued until December 29, 1950 when the last entry in the account was made."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 20116, "end_char": 20121, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 20141, "end_char": 20154, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 45(0)", "label": "PROVISION", "start_char": 20499, "end_char": 20507, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 20523, "end_char": 20536, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 20805, "end_char": 20813, "source": "ner", "metadata": {"in_sentence": "Mudholkar, J. I regret my inability to agree with the judgment of my learned brother Bachawat.", "canonical_name": "Bachawat"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 20864, "end_char": 20869, "source": "regex", "metadata": {"statute": null}}, {"text": "Banking Companies Act, 1949", "label": "STATUTE", "start_char": 20879, "end_char": 20906, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Shillong Ban~- ing Corporation", "label": "ORG", "start_char": 20963, "end_char": 20993, "source": "ner", "metadata": {"in_sentence": "This appeal arises out .of a petition made under s. 45-D of the Banking Companies Act, 1949 (] 0 of 1949) by 'the Liquidator of the respondent, the Shillong Ban~- ing Corporation for inclusion of the name of the appellant in the H list of debtors of the Bank."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 21429, "end_char": 21442, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bharati Central Bank Ltd.", "label": "ORG", "start_char": 21709, "end_char": 21734, "source": "ner", "metadata": {"in_sentence": "8.800 on Bharati Central Bank Ltd., Shillong was realised by the Bank 'on behalf \"of the pcuty' by a Demand Draft on Calcutta Branch of the Bharati Central Bank Limited."}}, {"text": "Bharati Central Bank Ltd., Shillong", "label": "ORG", "start_char": 22466, "end_char": 22501, "source": "ner", "metadata": {"in_sentence": "8,800 to the Bank on the Bharati Central Bank Ltd., Shillong for realisation in 1947 and in normal course it reafaed the amount in cash but either for its own convenience or for remitting its own money to Calcutta it accepted a draft from the Bharati Central Bank Limited on its branch at Calcutta without any instruction or ; ntimation to this opposite party and also this opposite-party withdrew their amount by a cheque after this and if in the meantime the said bank stopped its business this opposite-party cannot be held liable for the same."}}, {"text": "Bharati Central Bank Limited", "label": "ORG", "start_char": 22684, "end_char": 22712, "source": "ner", "metadata": {"in_sentence": "8,800 to the Bank on the Bharati Central Bank Ltd., Shillong for realisation in 1947 and in normal course it reafaed the amount in cash but either for its own convenience or for remitting its own money to Calcutta it accepted a draft from the Bharati Central Bank Limited on its branch at Calcutta without any instruction or ; ntimation to this opposite party and also this opposite-party withdrew their amount by a cheque after this and if in the meantime the said bank stopped its business this opposite-party cannot be held liable for the same."}}, {"text": "G Deka", "label": "JUDGE", "start_char": 23358, "end_char": 23364, "source": "ner", "metadata": {"in_sentence": "G Deka J., who heard the application framed four issues one of which related to limitation and the fourth was as follows:\n\n\"Issue No."}}, {"text": "Narendra Nath Dutta", "label": "OTHER_PERSON", "start_char": 23718, "end_char": 23737, "source": "ner", "metadata": {"in_sentence": "H The only oral evidence tendered was that of Narendra Nath Dutta, Assistant of the respondent Bank."}}, {"text": "Dutta", "label": "JUDGE", "start_char": 23814, "end_char": 23819, "source": "ner", "metadata": {"in_sentence": "Upon a cons; deration of the evidence of Dutta and the documents placed on record Deka J. found against the appellant on these issues and passed a decree in favour of the Bank for Rs.", "canonical_name": "Dutta"}}, {"text": "Deka", "label": "JUDGE", "start_char": 23855, "end_char": 23859, "source": "ner", "metadata": {"in_sentence": "Upon a cons; deration of the evidence of Dutta and the documents placed on record Deka J. found against the appellant on these issues and passed a decree in favour of the Bank for Rs."}}, {"text": "Bharati Cen tral Bank", "label": "ORG", "start_char": 24798, "end_char": 24819, "source": "ner", "metadata": {"in_sentence": "Instead of obtaining cash from the Bharati Cen tral Bank the respondent obtained and accepted from that Bank a cheque on the Nath Bank Limited."}}, {"text": "Nath Bank Limited", "label": "ORG", "start_char": 24888, "end_char": 24905, "source": "ner", "metadata": {"in_sentence": "Instead of obtaining cash from the Bharati Cen tral Bank the respondent obtained and accepted from that Bank a cheque on the Nath Bank Limited."}}, {"text": "Dutta", "label": "JUDGE", "start_char": 24951, "end_char": 24956, "source": "ner", "metadata": {"in_sentence": "This the respondent did, as ad- ' mitted by Dutta, without consulting the appellant.", "canonical_name": "Dutta"}}, {"text": "December 10, 1946", "label": "DATE", "start_char": 25146, "end_char": 25163, "source": "ner", "metadata": {"in_sentence": "They then presented the cheque to the Nath Bank on December 10, 1946."}}, {"text": "H.P. Sheldon", "label": "OTHER_PERSON", "start_char": 27875, "end_char": 27887, "source": "ner", "metadata": {"in_sentence": "see Practke and Law of Bank- B ing by H.P. Sheldon, 8th edn."}}, {"text": "Sheldon", "label": "OTHER_PERSON", "start_char": 28217, "end_char": 28224, "source": "ner", "metadata": {"in_sentence": "Sheldon has quoted the following ob- C servations of Lord Cottenham in Foley v. Hill (1948)."}}, {"text": "Cottenham", "label": "OTHER_PERSON", "start_char": 28275, "end_char": 28284, "source": "ner", "metadata": {"in_sentence": "Sheldon has quoted the following ob- C servations of Lord Cottenham in Foley v. Hill (1948)."}}, {"text": "Atkin", "label": "JUDGE", "start_char": 29364, "end_char": 29369, "source": "ner", "metadata": {"in_sentence": "With regard to this Sheldon has said as follows :\n\n\"In Joachimson v. Swiss Bank Corporation, 1921 Lord Justice Atkin gave an admirable summary of the position."}}, {"text": "December 11, 1960", "label": "DATE", "start_char": 31094, "end_char": 31111, "source": "ner", "metadata": {"in_sentence": "Indeed, as the cheques were returned unpaid by the drawee bank the respondent have made a debit entry on December 11, 1960 of Rs."}}, {"text": "Chalmers", "label": "GPE", "start_char": 31528, "end_char": 31536, "source": "ner", "metadata": {"in_sentence": "as pointed out at p. 300 in Chalmers on Bills of Exchange (8th edl D \"consequently an authority to an agent to receive a payment due to his principal is not in itself an authority to receive it by bill or cheque\"."}}, {"text": "Bharati Central BanK", "label": "ORG", "start_char": 33292, "end_char": 33312, "source": "ner", "metadata": {"in_sentence": "Indeed, having claimed, as against the Bharati Central BanK to be treated as preferential creditors of that Bank to the t'une of Rs."}}, {"text": "KESHARICHAND", "label": "JUDGE", "start_char": 33586, "end_char": 33598, "source": "ner", "metadata": {"in_sentence": "KESHARICHAND V. s. B. CORP. (", "canonical_name": "KESHARICHAND JAISUKHAL"}}, {"text": "s. 45", "label": "PROVISION", "start_char": 33871, "end_char": 33876, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 33894, "end_char": 33907, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1965_3_122_129_EN", "year": 1965, "text": "AMIRE'.DDI RAJAGOPALA RAO AND OTHERS\n\nAMIREDDI SITHARAMAMMA AND OTHERS\n\nFebruary 18, 1965\n\n[K. SUBBA RAo, RAGHUBAR DAYAL, J. R. MuDHOLKAR. R. s. BACHA B WA!f AND V. RAMASWAMI, JJ.J Hindu Law-Married Brahmin woman becomina. concubine of Sudra male-having children-Their rights of maintenance-Whether such rights affected by the Hindu Adoption and Maintenance Act, 1956.\n\nThe first respondent S, a Brahrnin woman married to R, during the lifetime of her husband became the permanently kept concubine of L, a sudra by caste. The other thre~ respondents were the sons of S & L. After L's death, in a suit filed by the respondent against L's brother and their sons (the appellants here), the sub-judge, by a decree dated September 20, 1954, awarded maintenance to the respondents during their life-time out of the estate of L and this award was upheld on appeal by the High Court. During the pendency oi the appeal before the High Court, the Hindu Adoptions and Main tenance Act of 1956 came into force and upon a contentoon being raised before it, the High Court held that the relevant provisions of tne new Act did not have retrospective effect so as to adversely affect the rights of maintenance available to the. respondents under the Hindu Law before the Act came into force.\n\nIn appeal before the Supreme Court, it was contended on bhalf of the appellants (1), that the respondents were not entitled to claim any maintenance from the estate of L under the Hindu Law in torce before the 1956 Act because (a) the first respondent was not a Dasi and the other three respondents were not Dasiputraa of L;\n\n(b) the husband of the first respondent having been alive, her con nection with L was adulterous and she could not therefore be entitled to maintenance as an Avaruddha Stree and (c) the first respondent being a Brahmin adulteress and L being a Sudra. the connection was\n\nPrwti!oma and illegal. (2) That in any event, by virtue of s. 4 of the 1956 Act, the Hindu Law prior to that Act cease<l to have effect with respect to matters for which provision was made in the Act and that provision for maintenance, etc. had in fact been made in sections 21 and 22 of the Act.\n\nHELD: (1) The respondents were entitled to maintenance during their lives out of the estate of L under the Hindu Law as it stood before the 1956 Act came into force. [127 Dl\n\n(a) It was well recognised that independently of the express texts of the Mitakshara, whereby, in the case of Sudras the Dasiputra was entitled to a share od' the inheritance, the illegitimate son of a H Sudra was entitled to maintenance out of his father's estate though his mother was not a Dasi in the strict sense and though he was the result of a casual or adulterous relationship. f125 Cl\n\nMitakshara Ch. I, S. 12 V. 1, 2 and 3 referred to; Case law reviewed.\n\n(b) Under Mitakshar.. law, a married woman who left her husband and lived with her paramour as his permanently kept mis.tress could claim the status of an Avaruddha Stree by remaii).ing faithful\n\nRAJAGUPALA V, SITHARAMAMM.A (Bachawat, J.) 123\n\nA to her paramour, even though the connection was adulterous, and she was entitled to maintenance from the estate of the paramour so long as she preserved sexual fidelity to him. (125 H, 126 BJ Akku Prah!ad v. Ganesh Prah!ad LL.R. [19451 Born. 216 affirmed Case law reviewed.\n\n(c) A Brahmin concubine in the exclusive and continuous keep. ing of a Sudra until his death was entitled to claim maintenance. 'B\n\n[127 BJ Case law referred to.\n\n(2) Seciions 21 and 22 are in terms prospective and these sections read with section 4 did not destroy or ect the right of maintenance of the respondents which vested in them on the death of L and before the commencement of the 1956 Act. [126 F; 129 AJ\n\nCl S. Kameshwaramma v. Subramanyam A.LR. 1959 Andhra Pradesh 269; distinguished.\n\nCivIL APPELLATE JURISDICTION : Civil Appeal No. 434 of 1963.\n\nAppeal from the judgment and decree dated July 22, 1960, of• the Andhra Pradesh High Court in Appeal Suit No. 709 of 1954.\n\nD A. Ranganadham Chetty, A. Vedavalli and A. V. Rangam, for the appellants.\n\nM. S. K. Sastri and M. S. Narasimhan, for the respondents.\n\nThe Judgment of the Court was delivered by Bachawat, J. The first respondent, Seetharamamma, is a B Brahmin woman. She was married to one Ramakrishnayya. During the life-time of her husband she became the concubine of one Lingayya, a Sudra by caste. From 1938 until the death of Lingayya in February, 1948, she was the permanently kept concubine of Lingayya, and lived with him. During this period and thereafter, F she preserved sexual fidelity to Lingayya. The second, third and fourth respondents are the sons of the first respondent by Lingayya.\n\nThe husband of the first respondent is still alive. The appellants are the brothers and brothers' sons of Lingayya. Lingay}UI was separate in estate from his brothers and brothers' sons. The parties are residents of Choragudi, Bapatla, now in Andhra Pradesh and G go.vrned by the Mitakshara school of Hindu law. In the plaint, as\n\nonmally filed, the respondents claimed that they were exclusively\n\nentitld to the estate left by Lingayya. The Subordinate Judge and the High Court found that as the lirst respondent was and continued to .be a marr!ed woman while she lived with Lingayya and bore him\n\nchdren, she was not the lawfully wedded wife of Lingayya and the B ch1lren born of the union wre not his.legitimate sons, nor were they\n\nDf!Sputras nd. as such entitled to his properties. The suit was ongmally d1sm1ssed by the Subordinate Judge, but on appeal, the\n\nHig~ Coui; i gave the respondents leave to amend the plaint by makmg suitable averments for the award of maintenance and remanded the suit for trial on the question of maintenan~. At the subsequent trial on the amended plaint, the Subordinate Judge decreed the respondents' claim for maintenance and consequential\n\n12 l\n\n8UPREME COURT REPORTS\n\n[ 1965) 3 S.C.R.\n\nreliefs and awarded to them maintenance during their lifetime A. out of the estate of Lingayya. The Subordinate Judge passed his decree on September 20, 1954. During the pendency of the appeal preferrd by the appellants before the High Court, the Hindu Adoptions and Maintenance Act of 1956 (hereinafter referred to as the\n\nAt) came into force. The main controversies in the appeal before the High Court were (1) whether the provisions of the Act are B retrospective; and (2) whether a married woman who left her husband and lived with another as his permanently kept mistress could be regarded as an Avaruddha Strce. In view of the importance of these questions, the appeal was referred to a Full Bench of the Hicrh Court. On the first question, the High Court held that the\n\nrelvant provisions of the Act applied only to the estates of Hindus C dying after the commencement of the Act, and that the right of the respondents to maintenance during. their lifetime under the Hindu law in force at the time of the death of Lingayya was not atfecied by the Act. On the second question, the High Court held 1hat the first respondent was anAvaruddha Stree of Lingayya, and was entitled to maintenance from his estate, though her husband D. was alive and the coqnection with Lingayya was adulterous. The High Court agreed with the Subordinate Judge with regard to the quantum of maintenance. .\n\nOn behalf of the appellants, it is contended that the respondents are not entitled to claim any maintenance from the estate E of Lingayya under the Hindu law as it stood prior to the commencement of the Act, because (a) the first respondent is not a DaYi and the second, third and fourth respondents are not Dasipufras of Lingayya, and this point is concluded by the previous judgment of the High Court, Which has now become final between the parties; (b) the husband of the first husband was and is F still alive, and the connection of the first respondent with Lingayya was adulterous during the period of tier intimacy with Lingayya and while she bore him children; (c) the first respondent being a Brahmin adulteress and Lingayya being a Sudra, the connection wqs Prafi/oma and illegal.\n\nNow, .under the Hindu law as it stood before the commence- G ment of the Act, the claim of a Dasiputra or the son of a Dasi. that is, a Hindu concubine in the continuous and exclusive keeping of the father rested on the express texts of the Mitakshara, Ch. I, s. 12, V. I, 2 and 3. In the case of Sudras, the Dasipufra was entitled to a share of the inheritance, and this share was given to him not merely in lieu of maintenance but in recognition of his status as a son, H see Gur Narain Das and another v. Gur Taha/ Das and others(').\n\nBut the illegitimate son of a Sudra by his concubine was not entitled to a share of the inheritance if he were the offspring of an Incestuous connection, see Dafti Parisi Nayudu v. Daffi Banl!aru Nayudu('), or if at the time of his conception, the connection was\n\n('I [l 9•12] S.C.R. 869, SW.\n\n(2) [1869] 4 Madras Hih Court Reports. 204,\n\nBAJAGOPALA v. SITHABAMAMMA (Bachawat, J.) 125\n\nA adulterous, see Rahi and others v. Govind Valad Teja('), Narayan Bharthi v. Laving Bharthi and others('), Tukaram v. Dinnkar(').\n\nSuch an illegimate son could not claim the status of a member of his father's family and could not get a share of the inheritance as a Dasiputra under the express text of the Mitakshara. For the reason, the previous judgment of the High Court rightly held that B the second, third and fourth respondents were not Dasiputras of Lingayya, and could no1 claim the inheritance. But the point whether they are entilled to maintenance out of the estate of Lingayya is not concluded by the previous judgment. It is well recognised \\hat independently of the express texts of the Mitakshara, Ch. I s. 12, V. 3, the illegitimate son of a Sudra was entitled to main- 0 tenance out of his father's estate, though his mother was not a Dasi in the strict sense artd though he was the result of a casual or adulterous intercourse. It was not essential to his title to maintenance that he should have been born in the house of his father or of a concubine possessing the peculiar status therein. See: Muttusawmy Jagavera Yettappa Naicker v. Vencataswara Yettayya(').\n\nD The illegitimate son of a Sudra was entitled to maintenance out of his father's estate, though at the time of his conception his mother was a married woman, her husband was alive and her connection with the putative father was adulterous, see Rahi v. Govind('), Viraramuthi Udayan v. Singaravelu('), Subramania Mudaly v.\n\nValu('). According to the Mitakshara school of law, the illegiti- Ji: mate son a Sudra was entitled to maintenance from his father's estate during his lifetime. Under the Hindu law, as it stood prior to the commencement of the Act, the first, second and third respondents were, therefore, entitled to maintenance during their lifetime, out of the estate of Lingayya. i' The claim of an A varuddha Stree or woman kept in concubinage for maintenance for her lifetime against the estate of her paramour rested on the express text of Mitakshara, Ch. 2, s. I, Vs. 27 and 28 read with V. 7. In Bai Nagubai v. Bai Monghibai('), where the man and th~ woman were Hindus and the paramour was governed by the law of the Mayuka, Lord Darling said:- G \"providing the concubinage be permanent, until the death of the paramour, and sexual fidelity to him be preserved, the right to maintenance is established; although the concubine be not kept in the family house of the deceased.\" R The Jaw of the Mitakshara is in agreement with ihe law of the Mayuka on this point. In the instant case, the first respondent\n\n(1; llSi51 LL.~. l Hom. !li (') [l8ii.-;] T.L.R. 2 Hn'\"· I-io. (') [l\\J::l] :i; l R.L.H. 2.:; t1. 1'1 [lSu'J 12 !ILL\\. 2 ·~. 221.\n\n(li) \\ 1877] T.L. L{. 111'! H1.: 01\\. (') [1911] I.L.ll :1.i :\\[:uL !iS. (') f1021ij T.J,.H , i'I ltnn. n11.i,61+, (P.C'.).\n\nbeing continuously and exclusively in the keeping cf Lingayya A until his death for about IO years, the concubinage has been found to be permanent. She observed sexual fidelity to Lingayya during n1s Jilet1me, ami after his death has continued to preserve her qualified chastity. In Akku Prathad v. Ganesh Pralhad('), a Full Bench of the Bombay High Court held that a married woman who left her husband and lived with her paramour as his permanently B .k:ept mistress could claim the status of an Avaruddha Stree by remaining faithful to her paramour, though the connection was adulterous, and was entitled to maintenance from the estate of the paramour so long as she preserved her sexual fidelity to him. This Full Bench decision overruled the decision in Anandilal Hhagchand v. Chandrabai(') and followed the earlier decisions in C Khemkore v. Umiashankar(\"), and Bingareddi v. Lakshmawar').\n\nThe decision in Akku Pra/had v. Ganesh Pra!had(') has been the subject of strong criticism in Mayne's Hindu law and Usage, I Ith Edn., Art. 683, p. 816 edited by Sri N. Chandrasekhara Aiyar and in a learned article in (1946) I M.L.J., Noles of Indian cases, p. I, D but the Full Bench of the Andhra Pradesh High Court in the instant case found themselves in complete agreement with the Bombay decision. We are of the opinion that the Bombay decision lays down'the correct Jaw.\n\nAvaruddha Stree, as understood by Vijnaneswara, mcludes a Swairini or adulteress kept in concubinage. While dealing with the E assets of a deceased Hindu not liable to partition, Mitakshara, Ch. I, s. 4, V. 22, he says, \"Swairini and others who are Avaruddha by the father, though even in number, should not be divided among the sons\". Colebrooke's translation of. the passage is as follows: .. But women (adulteresses and others) kept in concubinage bv the father must not be shared by the sons, though equal in number\".\n\nIn his commentary on Yajnavalkya's Verse 290 in VyavahGra Adhyaya, Ch. 24 on Stree Sangrahana, Vijnaneswara, citing Manu, explains Swairini as a woman who abandons her own husband and goes to another man of her own Varna out of love for him.\n\nThus, a Swairini and other adulteress kept in concubinage could claim the status of an Avaruddha Stree. The connection was no doubt immoral, but concubinage itself is immoral; yet it was recognised by law for the purpose of founding a claim for maintenance by her and her illegitimate sons. The paramour may be punishable for the offence of adultery, but the concubine is not punishable as abettor of the offence.\n\nA concubine was not disqualified from claiming maintenance by reason of the fact that she was a Brahmin. The claim of a concubine who was a respectable woman of the Brahm in caste and\n\n(1 ) l.L.H. fl!J45I h 1111. 216.\n\n(2 / [H,241I.L.P~4R B\"m. 203.\n\n( 3) fl8/:l] lfJ B•n11hav High Court Repris. 381. 'J [1901] J.J,..R. 26 Born. 163.\n\nRAJ, i.r; oPALA V. SITHARAMAMMA (Ba.cluiwat, J.) 127\n\nher illegitimate sons for maintenance was allowed in Hargol'ind Kuari v. Dharam Singh('). No doubt, a Pratilo111a connection is denounced by the Smriti-writers and the Commentators. and before the Hindu Marriages Validity Act, 1949 (Act XXI of 1949) Pratiloma marriages between a Sudra male and a Brahmin female were declared invalid in Bai Kashi\" v. Jamnadas(') and in Ramchandra Doddappa v. Hanamnaik Dodnaik('), but even those cases\n\nrecognis~ that a Brahmin concubine in the exclusive and continu0us\n\nkeeping of a Sudra until his death was entitled to claim maintenance. We express no opinion on the question whether a Pratiloma marriage was valid under the old Hindu Jaw, but we are satisfied that the claim of the respondents for maintenance cannot he defeated on the ground that the first respondent was a Brahmin and her paramour was a Sudra.\n\nWe are satisfied that the respondents were entitled to maintenance during their lives out of the estate of Lingayya under the Hindu law as it stood in 1948, when Lingayya died, in December 1949, when the suit was instituted and also in 1954, when the suit was decreed by the Subordinate Judge. The question is whether this right is taken away by the Hindu Adoptions and Maintenance Act, 1956, which came into forc.'l during the pendency of the appeal to the High Court. The Act is intended to amend and coify the law relating to adoptions and maintenance\n\namong Hindus. Section 4 of the Act is as fclJows:\n\n\"4. Save as otherwise expressly provided in this Act,-\n\n(a) any text, rule or interpretation of Hindu Jaw or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;\n\n(b) any other law in fore immediately before the commencement of this Act shitll cease to apply to Hindus in •o far as it is inconsistent with any of the provisions contained in this Act.\"\n\nG Section 21 defines \"dependants\" as meaning certain relatives of the deceased, and under sub-cl (viii), includes \"his or her minor illegitim11te son, so long as he remains a minor''. A concubine is not one of the persons within the definition of \"dependants\" given ins. 21, and an illegitimate son is not a dependant when he ceases to be a minor. Section 22 reads thus: H\n\n'\"22. (!) Subject to the provisions of sub-section (2) the heirs of a deceased Hindu are bound to maintai; the dependants of the deceased out of the estate inherited by them from the deceased. ·\n\n('I [J8R+] ! J,.R. fi ..Ill.\n\n0 2·1.\n\n(ll) rJPl:?] J.t Bnn1. I~. P. .. 'il7. r:s) rl!l\"fJl)LL.R. fir) Il'Hl'. 'i:'i.\n\n(2) Where a dependant has not obtained, by testamen- A tary or intestate success'on, any share in the estate of a Hindu dying after the commencement of this Act, the dependant shall be entitled, subject to the provision of this Act, to maintenance from those who take the estate.\n\n(3) The liability of each of the persoµs who takes the B estate shall be in proportion to the value of the share or part of the estate taken by him or her.\n\n(4) Notwithstanding anything contained in sub-section\n\n(2) or sub-section (3), no person who is himself or herself a dependant shall be liable to contribute to the mainten- C\n\n(2) or sub-section (3), no person who is himself or herself the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this\n\nAct.\"\n\nSub-section (1) of s. 22 imposes upon the heirs of a deceased Hindu the liability to maintain the dependants of the deceased defined\n\nin s. 21 out of the estate inherited by them from the deceased. but this liability is subject to the provisions of sub-s. (2), under which only a dependant who )las not obtained by testamentary or intes- E tate succession, any share in the estate of a Hindu dying after the commencement of the Act ts entitled, subject to the provisions of the Act, to maintenance. Specific provision is thus made in s. 22 with regard to maintenance of the dependants defined in s. 21 out of the estate of the deceased Hindu, and in view of s. 4, the Hindu law in force immediately. before the commencement of the Act ceases to have effect after the commencement of the Act with res- F pect to matters for which provision is so made. In terms, ss. 21 and 22 are prospective. Where the Act is intended to be retrospective, it expressly says so. Thus, s. 18 provides for maintenance of a Hindu wife, whether married before or after the commencement of the Act, by her husband, s. 19 provides for the mainten- G ance of a Hindu wife, whether married before or after the commencement of the Act, by her father-in-law, after the death of her husband, and s. 25 provides for alteration of the amount of maintenance whether fixed by a decree of Court or by agreement either before er after the commencement of the Act. Now, before the Act came into force, rights of maintenance out of the estate of u a Hindu dying before the commencement of the Act were acquired, and the corresponding liability to pay the maintenance was incurred unde~ the Hindu law in force at the time of his death. It is a well-recognised rule that a statute should be interpreted, if possible, so as to respect vested rights. See Craies on Statute Law, 6th Edn. (1963), p. 397. We think that ss. 21 and 22 read with s. 4 do not destroy or affect any right of maintenance out of the estate\n\nRA.TAGOPALa v. S!THARAMAMMA (Bach-wat, J.) 129\n\nA of a deceased Hindu vested on his death before the commencement of the Act under the Hindu law in force at the time of his death.\n\nOn the death of Lingayya, the first respondent as his concubine and the second, third and fourth respondents as her illegitimate sons had a vested right of maintenance during their lives oul of the estate of Lingayya. This right and the corresponding liability of the appellants to pay maintenance are not affected by ss. 21 and 22 of the Act. The continuing claim of the respondents during their lifetime springs (out of the original right vested in them on the death of Lingayya and is not founded on any right arising after the commencement of the Act.\n\nIn S. Kameswaramma v. Subramanyam('), the plaintiff's hus band had died in the year 1916, and the plaintiff had entered intc a compromise in 1924 fixing her maintenance at Rs. 240 per yea1 and providing that the rate of maintenance shall not be increased or reduced. The question arose whether, in spite of this agreement, the plaintiff could claim increased maintenance in view of s. 25 of the Hindu Adoptions and Maintenance Act, 1956. It was held that, in spite of the aforesaid term of the compromise, s)ie was entitled to claim increased maintenance under s. 25. This conclusion follows from the plain words of s. 25, under which the amount of maintenance, whether fixed by decree or agreement either before or affer the commencement of the Act, may be altered subsequently. The decision was therefore, plainly right. No doubt, there are broad observations in that case to the effect that the right to maintenance is a recurring right and the liability to maintenance after the Act came into force is imposed by s. 22, and there is no reason fo exclude widows of persons who died before the Act from the operation of s. 22. Those observations were not necessary for the purpose of that case, because the widow in that case was clearly entitled to maintenance from the estate of her deceased husband dying in 1916 under the Hindu law, as it stood then, independently of ss. 21 and 22 of the Act, and in spite of the comyromise fixing the maintenance before the commencement of the Act, the widow could in view of s. 25 claim alteration of the amount of the maintenance. The decision cannot be regarded as an authority for the proposition that ss. 21 and 22 of the Act affect rights already vested before the commencement of the Act.\n\nWe. therefore, hold that the claim of the respondents to main tenance for their lives is not affected by the Act.\n\nWe see no reason to interfere with the concurrent finding of the Courts below with regard to the quantum of maintenance.\n\nIn the result, the appeal is dismis<ed with costs. '\n\nAppeal dismissed.", "total_entities": 76, "entities": [{"text": "AMIRE'.DDI RAJAGOPALA RAO AND OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "AMIRE'.DDI RAJAGOPALA RAO AND OTHERS", "offset_not_found": false}}, {"text": "AMIREDDI SITHARAMAMMA AND OTHERS", "label": "RESPONDENT", "start_char": 38, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "AMIREDDI SITHARAMAMMA AND OTHERS", "offset_not_found": false}}, {"text": "February 18, 1965", "label": "DATE", "start_char": 72, "end_char": 89, "source": "ner", "metadata": {"in_sentence": "DDI RAJAGOPALA RAO AND OTHERS\n\nAMIREDDI SITHARAMAMMA AND OTHERS\n\nFebruary 18, 1965\n\n[K. SUBBA RAo, RAGHUBAR DAYAL, J. R. MuDHOLKAR."}}, {"text": "RAGHUBAR DAYAL, J.", "label": "JUDGE", "start_char": 106, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "R. MuDHOLKAR", "label": "JUDGE", "start_char": 125, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ", "label": "JUDGE", "start_char": 162, "end_char": 178, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "September 20, 1954", "label": "DATE", "start_char": 716, "end_char": 734, "source": "ner", "metadata": {"in_sentence": "The other thre~ respondents were the sons of S & L. After L's death, in a suit filed by the respondent against L's brother and their sons (the appellants here), the sub-judge, by a decree dated September 20, 1954, awarded maintenance to the respondents during their life-time out of the estate of L and this award was upheld on appeal by the High Court."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 1298, "end_char": 1311, "source": "ner", "metadata": {"in_sentence": "In appeal before the Supreme Court, it was contended on bhalf of the appellants (1), that the respondents were not entitled to claim any maintenance from the estate of L under the Hindu Law in torce before the 1956 Act because (a) the first respondent was not a Dasi and the other three respondents were not Dasiputraa of L;\n\n(b) the husband of the first respondent having been alive, her con nection with L was adulterous and she could not therefore be entitled to maintenance as an Avaruddha Stree and (c) the first respondent being a Brahmin adulteress and L being a Sudra."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 1933, "end_char": 1937, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 21 and 22", "label": "PROVISION", "start_char": 2140, "end_char": 2158, "source": "regex", "metadata": {"statute": null}}, {"text": "Sudras", "label": "OTHER_PERSON", "start_char": 2457, "end_char": 2463, "source": "ner", "metadata": {"in_sentence": "127 Dl\n\n(a) It was well recognised that independently of the express texts of the Mitakshara, whereby, in the case of Sudras the Dasiputra was entitled to a share od' the inheritance, the illegitimate son of a H Sudra was entitled to maintenance out of his father's estate though his mother was not a Dasi in the strict sense and though he was the result of a casual or adulterous relationship.", "canonical_name": "Sudras"}}, {"text": "Sudra", "label": "OTHER_PERSON", "start_char": 2551, "end_char": 2556, "source": "ner", "metadata": {"in_sentence": "127 Dl\n\n(a) It was well recognised that independently of the express texts of the Mitakshara, whereby, in the case of Sudras the Dasiputra was entitled to a share od' the inheritance, the illegitimate son of a H Sudra was entitled to maintenance out of his father's estate though his mother was not a Dasi in the strict sense and though he was the result of a casual or adulterous relationship.", "canonical_name": "Sudras"}}, {"text": "S. 12", "label": "PROVISION", "start_char": 2761, "end_char": 2766, "source": "regex", "metadata": {"statute": null}}, {"text": "RAJAGUPALA V, SITHARAMAMM.A (Bachawat", "label": "JUDGE", "start_char": 3010, "end_char": 3047, "source": "ner", "metadata": {"in_sentence": "(b) Under Mitakshar.. law, a married woman who left her husband and lived with her paramour as his permanently kept mis.tress could claim the status of an Avaruddha Stree by remaii).ing faithful\n\nRAJAGUPALA V, SITHARAMAMM.A (Bachawat, J.) 123\n\nA to her paramour, even though the connection was adulterous, and she was entitled to maintenance from the estate of the paramour so long as she preserved sexual fidelity to him. ("}}, {"text": "section 4", "label": "PROVISION", "start_char": 3575, "end_char": 3584, "source": "regex", "metadata": {"statute": null}}, {"text": "D A. Ranganadham Chetty", "label": "LAWYER", "start_char": 4020, "end_char": 4043, "source": "ner", "metadata": {"in_sentence": "D A. Ranganadham Chetty, A. Vedavalli and A. V. Rangam, for the appellants."}}, {"text": "A. Vedavalli", "label": "LAWYER", "start_char": 4045, "end_char": 4057, "source": "ner", "metadata": {"in_sentence": "D A. Ranganadham Chetty, A. Vedavalli and A. V. Rangam, for the appellants."}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 4062, "end_char": 4074, "source": "ner", "metadata": {"in_sentence": "D A. Ranganadham Chetty, A. Vedavalli and A. V. Rangam, for the appellants."}}, {"text": "M. S. K. Sastri", "label": "LAWYER", "start_char": 4097, "end_char": 4112, "source": "ner", "metadata": {"in_sentence": "M. S. K. Sastri and M. S. Narasimhan, for the respondents."}}, {"text": "M. S. Narasimhan", "label": "LAWYER", "start_char": 4117, "end_char": 4133, "source": "ner", "metadata": {"in_sentence": "M. S. K. Sastri and M. S. Narasimhan, for the respondents."}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 4200, "end_char": 4208, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Bachawat, J. The first respondent, Seetharamamma, is a B Brahmin woman."}}, {"text": "Seetharamamma", "label": "RESPONDENT", "start_char": 4235, "end_char": 4248, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Bachawat, J. The first respondent, Seetharamamma, is a B Brahmin woman."}}, {"text": "Ramakrishnayya", "label": "OTHER_PERSON", "start_char": 4295, "end_char": 4309, "source": "ner", "metadata": {"in_sentence": "She was married to one Ramakrishnayya."}}, {"text": "Lingayya", "label": "OTHER_PERSON", "start_char": 4379, "end_char": 4387, "source": "ner", "metadata": {"in_sentence": "During the life-time of her husband she became the concubine of one Lingayya, a Sudra by caste."}}, {"text": "Choragudi", "label": "GPE", "start_char": 4924, "end_char": 4933, "source": "ner", "metadata": {"in_sentence": "The parties are residents of Choragudi, Bapatla, now in Andhra Pradesh and G go.vrned by the Mitakshara school of Hindu law."}}, {"text": "Bapatla", "label": "GPE", "start_char": 4935, "end_char": 4942, "source": "ner", "metadata": {"in_sentence": "The parties are residents of Choragudi, Bapatla, now in Andhra Pradesh and G go.vrned by the Mitakshara school of Hindu law."}}, {"text": "Hindu Adoptions and Maintenance Act", "label": "STATUTE", "start_char": 6182, "end_char": 6217, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Lingayya under the Hindu law as it stood prior to the commencement of the Act", "label": "STATUTE", "start_char": 7453, "end_char": 7530, "source": "regex", "metadata": {}}, {"text": "Mitakshara", "label": "OTHER_PERSON", "start_char": 8357, "end_char": 8367, "source": "ner", "metadata": {"in_sentence": "that is, a Hindu concubine in the continuous and exclusive keeping of the father rested on the express texts of the Mitakshara, Ch."}}, {"text": "s. 12", "label": "PROVISION", "start_char": 8376, "end_char": 8381, "source": "regex", "metadata": {"linked_statute_text": "Lingayya under the Hindu law as it stood prior to the commencement of the Act", "statute": "Lingayya under the Hindu law as it stood prior to the commencement of the Act"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 9761, "end_char": 9766, "source": "regex", "metadata": {"statute": null}}, {"text": "Darling", "label": "OTHER_PERSON", "start_char": 11270, "end_char": 11277, "source": "ner", "metadata": {"in_sentence": "In Bai Nagubai v. Bai Monghibai('), where the man and th~ woman were Hindus and the paramour was governed by the law of the Mayuka, Lord Darling said:- G \"providing the concubinage be permanent, until the death of the paramour, and sexual fidelity to him be preserved, the right to maintenance is established; although the concubine be not kept in the family house of the deceased.\""}}, {"text": "Mayuka", "label": "OTHER_PERSON", "start_char": 11580, "end_char": 11586, "source": "ner", "metadata": {"in_sentence": "R The Jaw of the Mitakshara is in agreement with ihe law of the Mayuka on this point."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 12239, "end_char": 12256, "source": "ner", "metadata": {"in_sentence": "In Akku Prathad v. Ganesh Pralhad('), a Full Bench of the Bombay High Court held that a married woman who left her husband and lived with her paramour as his permanently B .k:ept mistress could claim the status of an Avaruddha Stree by remaining faithful to her paramour, though the connection was adulterous, and was entitled to maintenance from the estate of the paramour so long as she preserved her sexual fidelity to him."}}, {"text": "Mayne", "label": "OTHER_PERSON", "start_char": 12891, "end_char": 12896, "source": "ner", "metadata": {"in_sentence": "The decision in Akku Pra/had v. Ganesh Pra!had(') has been the subject of strong criticism in Mayne's Hindu law and Usage, I Ith Edn.,"}}, {"text": "Art. 683", "label": "PROVISION", "start_char": 12932, "end_char": 12940, "source": "regex", "metadata": {"statute": null}}, {"text": "N. Chandrasekhara Aiyar", "label": "OTHER_PERSON", "start_char": 12963, "end_char": 12986, "source": "ner", "metadata": {"in_sentence": "683, p. 816 edited by Sri N. Chandrasekhara Aiyar and in a learned article in (1946) I M.L.J., Noles of Indian cases, p. I, D but the Full Bench of the Andhra Pradesh High Court in the instant case found themselves in complete agreement with the Bombay decision."}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 13089, "end_char": 13114, "source": "ner", "metadata": {"in_sentence": "683, p. 816 edited by Sri N. Chandrasekhara Aiyar and in a learned article in (1946) I M.L.J., Noles of Indian cases, p. I, D but the Full Bench of the Andhra Pradesh High Court in the instant case found themselves in complete agreement with the Bombay decision."}}, {"text": "Bombay", "label": "GPE", "start_char": 13183, "end_char": 13189, "source": "ner", "metadata": {"in_sentence": "683, p. 816 edited by Sri N. Chandrasekhara Aiyar and in a learned article in (1946) I M.L.J., Noles of Indian cases, p. I, D but the Full Bench of the Andhra Pradesh High Court in the instant case found themselves in complete agreement with the Bombay decision."}}, {"text": "Vijnaneswara", "label": "OTHER_PERSON", "start_char": 13309, "end_char": 13321, "source": "ner", "metadata": {"in_sentence": "Avaruddha Stree, as understood by Vijnaneswara, mcludes a Swairini or adulteress kept in concubinage."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 13473, "end_char": 13477, "source": "regex", "metadata": {"statute": null}}, {"text": "Colebrooke", "label": "OTHER_PERSON", "start_char": 13611, "end_char": 13621, "source": "ner", "metadata": {"in_sentence": "Colebrooke's translation of."}}, {"text": "Yajnavalkya", "label": "OTHER_PERSON", "start_char": 13819, "end_char": 13830, "source": "ner", "metadata": {"in_sentence": "In his commentary on Yajnavalkya's Verse 290 in VyavahGra Adhyaya, Ch."}}, {"text": "VyavahGra Adhyaya", "label": "OTHER_PERSON", "start_char": 13846, "end_char": 13863, "source": "ner", "metadata": {"in_sentence": "In his commentary on Yajnavalkya's Verse 290 in VyavahGra Adhyaya, Ch."}}, {"text": "Stree Sangrahana", "label": "OTHER_PERSON", "start_char": 13875, "end_char": 13891, "source": "ner", "metadata": {"in_sentence": "24 on Stree Sangrahana, Vijnaneswara, citing Manu, explains Swairini as a woman who abandons her own husband and goes to another man of her own Varna out of love for him."}}, {"text": "Manu", "label": "OTHER_PERSON", "start_char": 13914, "end_char": 13918, "source": "ner", "metadata": {"in_sentence": "24 on Stree Sangrahana, Vijnaneswara, citing Manu, explains Swairini as a woman who abandons her own husband and goes to another man of her own Varna out of love for him."}}, {"text": "Swairini", "label": "OTHER_PERSON", "start_char": 13929, "end_char": 13937, "source": "ner", "metadata": {"in_sentence": "24 on Stree Sangrahana, Vijnaneswara, citing Manu, explains Swairini as a woman who abandons her own husband and goes to another man of her own Varna out of love for him."}}, {"text": "RAJ", "label": "JUDGE", "start_char": 14790, "end_char": 14793, "source": "ner", "metadata": {"in_sentence": "RAJ, i.r; oPALA V. SITHARAMAMMA (Ba.cluiwat, J.) 127\n\nher illegitimate sons for maintenance was allowed in Hargol'ind Kuari v. Dharam Singh(')."}}, {"text": "oPALA V. SITHARAMAMMA", "label": "JUDGE", "start_char": 14800, "end_char": 14821, "source": "ner", "metadata": {"in_sentence": "RAJ, i.r; oPALA V. SITHARAMAMMA (Ba.cluiwat, J.) 127\n\nher illegitimate sons for maintenance was allowed in Hargol'ind Kuari v. Dharam Singh(')."}}, {"text": "Ba.cluiwat", "label": "JUDGE", "start_char": 14823, "end_char": 14833, "source": "ner", "metadata": {"in_sentence": "RAJ, i.r; oPALA V. SITHARAMAMMA (Ba.cluiwat, J.) 127\n\nher illegitimate sons for maintenance was allowed in Hargol'ind Kuari v. Dharam Singh(')."}}, {"text": "Hindu Marriages Validity Act, 1949", "label": "STATUTE", "start_char": 15041, "end_char": 15075, "source": "regex", "metadata": {}}, {"text": "question is whether this right is taken away by the Hindu Adoptions and Maintenance Act, 1956", "label": "STATUTE", "start_char": 15994, "end_char": 16087, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 4", "label": "PROVISION", "start_char": 16266, "end_char": 16275, "source": "regex", "metadata": {"linked_statute_text": "The question is whether this right is taken away by the Hindu Adoptions and Maintenance Act, 1956", "statute": "The question is whether this right is taken away by the Hindu Adoptions and Maintenance Act, 1956"}}, {"text": "Section 21", "label": "PROVISION", "start_char": 16797, "end_char": 16807, "source": "regex", "metadata": {"linked_statute_text": "The question is whether this right is taken away by the Hindu Adoptions and Maintenance Act, 1956", "statute": "The question is whether this right is taken away by the Hindu Adoptions and Maintenance Act, 1956"}}, {"text": "Section 22", "label": "PROVISION", "start_char": 17143, "end_char": 17153, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22", "label": "PROVISION", "start_char": 18349, "end_char": 18354, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 18467, "end_char": 18472, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22", "label": "PROVISION", "start_char": 18864, "end_char": 18869, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 18926, "end_char": 18931, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 18988, "end_char": 18992, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 21 and 22", "label": "PROVISION", "start_char": 19191, "end_char": 19204, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18", "label": "PROVISION", "start_char": 19297, "end_char": 19302, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 19422, "end_char": 19427, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 19597, "end_char": 19602, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 21 and 22", "label": "PROVISION", "start_char": 20206, "end_char": 20219, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 20230, "end_char": 20234, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 21 and 22", "label": "PROVISION", "start_char": 20803, "end_char": 20816, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 21424, "end_char": 21429, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindu Adoptions and Maintenance Act, 1956", "label": "STATUTE", "start_char": 21437, "end_char": 21478, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 25", "label": "PROVISION", "start_char": 21603, "end_char": 21608, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Adoptions and Maintenance Act, 1956", "statute": "the Hindu Adoptions and Maintenance Act, 1956"}}, {"text": "s. 25", "label": "PROVISION", "start_char": 21658, "end_char": 21663, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Adoptions and Maintenance Act, 1956", "statute": "the Hindu Adoptions and Maintenance Act, 1956"}}, {"text": "s. 22", "label": "PROVISION", "start_char": 22059, "end_char": 22064, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Adoptions and Maintenance Act, 1956", "statute": "the Hindu Adoptions and Maintenance Act, 1956"}}, {"text": "s. 22", "label": "PROVISION", "start_char": 22164, "end_char": 22169, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Adoptions and Maintenance Act, 1956", "statute": "the Hindu Adoptions and Maintenance Act, 1956"}}, {"text": "ss. 21 and 22", "label": "PROVISION", "start_char": 22416, "end_char": 22429, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Adoptions and Maintenance Act, 1956", "statute": "the Hindu Adoptions and Maintenance Act, 1956"}}, {"text": "s. 25", "label": "PROVISION", "start_char": 22559, "end_char": 22564, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 21 and 22", "label": "PROVISION", "start_char": 22689, "end_char": 22702, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_130_134_EN", "year": 1965, "text": "STATE OF U.P. AND OTHERS v.\n\nSRI NARAIN February 22, 1965\n\n[K. SUBBA\n\nRAO,\n\nRAGHUBAR DAYAL,\n\nJ. R. MUDHOLKAR, R. S.\n\nBACHAWAT AND V. RAMASWAMI, JJ.J B U.P. Zamindari Abolition & Land Reforms Act, 1950 (U.P. Act of\n\n1951)~U.P. Zamindari Abolition & Land Reforms Rules-Compensation Bonds-Acceptance in payment of tax dues-Delivery to intermediary-Ceases to be payable-Ss. 6(d), BB. r. B-A.\n\n1, he respondent who was assessed to agricultural income-tax made an application to the Assessing Officer depositing compensation Bonds and prayed that the Bonds be accepted in payment of tax C dues. This was rejected stating that there was no rule for acceptance of these bonds. Another attempt by the respondent was also turned down by the Collector. Thereafter the respondent presented a writ petition in the High Court for directing them to accept the Bonds in lieu of the tax dues. The High Court was of the opinion that the two officers completely ignored the provisions of s. 6(dJ of the Act and r. BA, and directed the Collector to decide the respon- D dent's application in accordance with law. In appeal by special leave: HELD: (i) Neither s. 6(d) nor r. BA provide that the Bonds must or can be accepted in payment of tax on agriculture income fl33 El\n\nCollector of Sultanpur v. Raja Jagdish Prasad Sahi, [1965] 2 S.C.R. 2B, referred to.\n\n(ii) When the compensation payable to an intermediary has been paid in the form of cash or Bonds. that compensation ceased to be payable.\n\nThe fact that the Bonds are negotiable does not make them legal tender and does not make it obligatory on anyone including Government to accept them in payment of any dues. The only result of their being treated as negotiable instruments is that the owner of the Bonds can transfer them to any person who is agreeable to pur- F chase them. fl34 D-Fl\n\nCtv1L\n\nAPPELLATE JURISDICTION: Civil Appeal No. 424 of 1963.\n\nAppeal by special leave from the judgment and order dated April 8, 1960 of the Allahabad High Court in Civil Misc. Writ No. 2650 of 1956.\n\nG C. B. Agarwala and 0. P. Rana, for the appellant.\n\nYogeslnvar Prasad, Hardev Singh and M. V. Goswami, for the respondents.\n\nThe Judgment of the Court was delivered by Raghubar Dayal, J. This appeal. by special leave', raises the question whether Zamindari Abolition Compensation Bonds (shortly H termed Bonds) issued by the U.P. Government to intermediaries in payment of compensation payable on the basis of their rights under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act I of 1951), hereinafter referred to as the Act. have to be acc; epted by the appropriate authorities in payment of the agricultural income-tax due from them.\n\nA The tacts leading to the appeal, in brief, are that the respondent, an ex-Zamindar, was assessed to agricultural income-tax in the assessment year 1360 F corre3ponding to 1952-53, on the basis of the agricultural income accruing in the previous year 1359 F corresponding to 1951-52. He did not pay the assessed tax and was further assessed to a penalty. In the result, Rs. 868 /- were to B be paid by him for tax plus penalty.\n\nThe respondent's writ petition contending that he was not liable to pay tax was dismissed by the High Court. Thereafter, the agricultural income-tax authorities took out proceedings for the realisation of the amount due from him. On July 24, 1956, the res- 0 pondent presented an application to the Agricultural Income-tax Assessing Officer, Allahabad, stating that he had no ready cash to pay the dues aiid that he was therefore depositing Bonds of the value of Rs. 850/- and Rs. 18/- in cash and praying that the Bonds be accepted in payment of tax dues. This application was rejected by an order stating that there was no rule for the acceptance of D those bonds and that they be ret\\Jrned to the applicant.\n\nOn August 1, 1956, the respondent made a similar application to the Collector complaining that the Assessing Officer had no valid reason to refuse to take the Bonds when the Bonds were negotiable instruments. This application was also rejected on a B report of the Assessing Officer that the Bonds were not accepted in the settlement of agricultural income-tax dues, that they were not negotiable and that there was no provision in the Act for their acceptance.\n\nThereafter, thP respondent presented a writ petition to the High Court of Allahabad praying for the issue of a writ of certiorari Jr quashing the orders of the Assessing Officer and the Collector, Allahabad, for the issue of a writ of mandamus directing them to accept the Bonds in lieu of the tax dues and, in any case, to deduct the amount from the rehabilitation grant due to the petition.er and for the issue of a writ of prohibition directing the opposite parties from adopting coercive measures for the realisation of the tax due .e from the petitioner. The grounds mentioned in support of the prayers were that the Bonds were negotiable instruments and therefore refusal to accept them in payment of agricultural income-tax was illegal, that they, having been issued by Government, could not be subsequently refused they being perfectly valid legal tender and D that in view or r. 8A of the Rules made under the Act the amount due for tax should have been deducted from the interim compensation.\n\nThe counter affidavit filed by the Naib-Tehsildar Agriculture Income-tax Officer. Allahabad, on behalf of the State, stated that the respondent was assessed to agricultural income-tax in the assessment year commencing from July I, 1952 on the income derived in the previous year commencing from July I, 1951, that the tax\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n(1965) 3 S.O.B,\n\nhad t? be paid in four instalments and in default of payment a A penahty of Rs. 43 /- was imposed for each default in payment of the four instalments and that the Bonds could not be accepted towards the tax due under s. 6(d) of the Act read with r. 4S of the Rules as the tax had fallen due in 1360 F, corresponding to July 1,\n\n1952 to June 30, 1953. · The High Court held that the orders of the Agricultural B Income-tax Assessing Officer and the Collector were wrong as the ground for refusing to accept the Bonds in payment of the tax on the ground that then: was no rule or statutory provision for their acceptance was incorrect and appeared to have been given in complete ignorance of the provision of law. Reference was made to the provisions of s. 6(d) of the Act and r. SA. The High Court C\n\nwas of the opinion that these have been completely ignored by the two officers. It, therefore thought that the orders were liable to be quashed and that adequate relief would be available to the respondent if a direction was given to the Collector to decide his application dated August I, 1956, in accordance with law. The D High Court therefore quashed the order of the Collector dated August 24, 1956 and directed him to decide the respondent's application afresh in accordance with law as indicated above.\n\nThe appellant thereafter obtained special leave from this Court and appealed against the order of the High Court dated April S, 1960.\n\nE The main contention for the appellant before us is that neither s. 6(d) of the Act nor r. SA provides that Bonds can be accepted in payment of agricultural income-tax and that therefore the order of the Collector dated August 24, 1956 was correct. For the respondent it is urged that r. SA makes it mandatory for the Agricultural Income-tax Officer to realise the agricultural income- P tax due from the compensation payable and that compensation continues to be payable till the Bonds are actually encashed.\n\nSection 6(d) of the Act, as originally enacted, did not provide, among the consequences of the vesting of the estate fo the State, that arrears on account of agricultural\" income-tax might be realised G by deducting the amount from the compensation money payable to the intermediary under Chapter III. An amendment was made in this clause (d) by s. 3 of U.P. Act XVI of 1953, with retrospective effect from July 1, 1952, and the relevant portion of the provision after amendment reads thus:\n\n\"All arrears of revenue, . . .. .. or an arrear on account B of tax on agricultural income assessed under the U .P.\n\nAgricultural Income-tax, Act, 194S for any period prior to the date of vesting shall continue to be recoverable from such intermediary and may, without prejtid!ce to any other mode of recovery be realised by deductmg the amount from the compensation money pay'\\ble to such intermediary under Chapter III;\"\n\nRule SA was added to the rules by Notification No. 3266/I-A- 1056-1954 dated August 17, 1954 and its relevant portions read:\n\n\"S-A. Without prejudice to the right of the State Government lo recover the dues mentioned below by such other means, as may be open to it under law:\n\n(!) all arrears of land revenue in respect of the estates which have vested in the State Government as a result of the notification under Section 4 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (Act I of 1951), and of tax on agricultural income assessed under the U.P. Agricultural Income-tax Act, 194S (U.P.\n\nAct Ill pf 1949) due from an intermediary for any period prior to the date of vesting shall be realised:\n\n(a) in the case of an intermediary who was assessed to land revenue of Rs. 10,000 or more from the amount of interim compensation due to him, and D\n\n(b) in the case of an intermediary who was assessed to a land revenue of less than Rs. 10,000 per annum by deduction from the amouqt of compensation payable to him;\" It is clear from the above provisions that neither s. 6(d) nor r. SA B provide that Bonds must or can be accepted in payment of tax on agricultural income.\n\nIt has been held by this Court in Collector of Sultanpur v Raja Jagdish Prasad Sahi(') that the provisions of s. 6(d) of the Act would apply to arrears on account of agricultural income-tax\n\nai; sessed in l360F on the basis of agricultural income during the F year 1359F and that the provisions of r. SA are mandatory.\n\nIt is not urged for the appellant that r. SA is inconsistent with the provisions of s. 6(d) which provides that arrears of tax may be realised from the compensation payable and .therefore appears to give a discretion to the authorities to realise the arrears 6 of tax from the compensation payable.\n\nWe do not agree with the contention for the respondent that the compensation payable to the intermediary continues to remain payable even after the compensation Bonds had been delivered to him. Section 6S of the Act provides that the compensation under the Act shall be payable in cash or in bonds or partly in H cash and partly in bonds as may be prescribed. It is clear therefore that the delivery of Bonds to the intermediary is in payment of the compensation. The claim for compensation is thus satisfied when the compensation has been jlaid lin accordance with the provisions of s. 6S. This is also clear from the relevant rules for the payment of compensation.\n\n(') [tn65] 2 S.C.R. 28.\n\nSUPREME\n\nCOURT\n\nU.EPORTS [1965] 3 s.c.R.\n\nRule 62 as it steed prior to November 29, 1956, provided A that the compensation w.ould be paid in negotiable bonds which would be described as Zamindari Abolition Compensation Bonds.\n\nRule 63 as it then stood. provided that the Bonds would be issued in specified denominations and would bear interest at the specified rate on the principal that had become payable calculated from the date of vesting. Rule 64 provided that interest together with the B principal of a Bond would be paid in equated annual instalments except for the last, as described in Appendix IV during the period of 40 years beginning from the date of vesting, provided that any Bond might be redeemed at an earlier date at the option of the Government. Rule 65 provided that the instalments due on a Bond C from the date of its enfacement would be payable on presentation from and after July !st next after the delivery of the Bond to the intermediary.\n\nThese rules show that the compensation does not remain payable atter the delivery of the Bonds and that the Bonds could not be cashed before the due date for their encashment.\n\nThe fact that the Bonds are negotiable does not make them legal tender and does not make it obligatory on anyone, including Government, to accept them in payment of any dues. The 0nly result of their being treated as negotiable instruments is that the owner of the Bonds can transfer them to any person who is agree- E able to purchase them.\n\nWhen the compensation payable to an intermediary has been paid in the form of cash or .Bonds, that compensation ceases to be payable. Section 6(d) of the Act and r. 8A of the rules do not. as already stated, provide for the receipt of agricultural income- F tax in the form of Bonds. ·\n\nWe are therefore of opinion that the Collector cannot be said to be in error in not accepting the Bonds which had been delivered and which .were not even cashable at the time, in payment of the arrears of agricultural income-tax payable under the Agricultural Income-tax Act.\n\nWe accordingly allow the appeal, set aside the order of thi High Court and restore that of the Colkctor dated August 24, 1956 The respondent will pay the costs of the appeal to the appellants\n\nApal allcwed. B", "total_entities": 48, "entities": [{"text": "STATE OF U.P. AND OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P. AND OTHERS", "offset_not_found": false}}, {"text": "SRI NARAIN", "label": "RESPONDENT", "start_char": 29, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "SRI NARAIN", "offset_not_found": false}}, {"text": "February 22, 1965", "label": "DATE", "start_char": 40, "end_char": 57, "source": "ner", "metadata": {"in_sentence": "STATE OF U.P. AND OTHERS v.\n\nSRI NARAIN February 22, 1965\n\n[K. SUBBA\n\nRAO,\n\nRAGHUBAR DAYAL,\n\nJ. R. MUDHOLKAR, R. S.\n\nBACHAWAT AND V. RAMASWAMI, JJ.J B U.P. Zamindari Abolition & Land Reforms Act, 1950 (U.P. Act of\n\n1951)~U.P. Zamindari Abolition & Land Reforms Rules-Compensation Bonds-Acceptance in payment of tax dues-Delivery to intermediary-Ceases to be payable-Ss."}}, {"text": "RAO", "label": "JUDGE", "start_char": 70, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL,\n\nJ.", "label": "JUDGE", "start_char": 76, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL,\n\nJ.", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 96, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "BACHAWAT", "label": "JUDGE", "start_char": 117, "end_char": 125, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ", "label": "JUDGE", "start_char": 130, "end_char": 146, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Land Reforms Act, 1950", "label": "STATUTE", "start_char": 178, "end_char": 200, "source": "regex", "metadata": {}}, {"text": "Land Reforms Rules", "label": "STATUTE", "start_char": 248, "end_char": 266, "source": "regex", "metadata": {}}, {"text": "Ss. 6(d)", "label": "PROVISION", "start_char": 366, "end_char": 374, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Rules", "statute": "Land Reforms Rules"}}, {"text": "s. 6(d)", "label": "PROVISION", "start_char": 1139, "end_char": 1146, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Rules", "statute": "Land Reforms Rules"}}, {"text": "[1965] 2 S.C.R. 2", "label": "CASE_CITATION", "start_char": 1305, "end_char": 1322, "source": "regex", "metadata": {}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 1970, "end_char": 1990, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated April 8, 1960 of the Allahabad High Court in Civil Misc."}}, {"text": "G C. B. Agarwala", "label": "LAWYER", "start_char": 2030, "end_char": 2046, "source": "ner", "metadata": {"in_sentence": "G C. B. Agarwala and 0."}}, {"text": "0. P. Rana", "label": "LAWYER", "start_char": 2051, "end_char": 2061, "source": "ner", "metadata": {"in_sentence": "G C. B. Agarwala and 0."}}, {"text": "Yogeslnvar Prasad", "label": "LAWYER", "start_char": 2083, "end_char": 2100, "source": "ner", "metadata": {"in_sentence": "Yogeslnvar Prasad, Hardev Singh and M. V. Goswami, for the respondents."}}, {"text": "Hardev Singh", "label": "LAWYER", "start_char": 2102, "end_char": 2114, "source": "ner", "metadata": {"in_sentence": "Yogeslnvar Prasad, Hardev Singh and M. V. Goswami, for the respondents."}}, {"text": "M. V. Goswami", "label": "LAWYER", "start_char": 2119, "end_char": 2132, "source": "ner", "metadata": {"in_sentence": "Yogeslnvar Prasad, Hardev Singh and M. V. Goswami, for the respondents."}}, {"text": "Raghubar Dayal", "label": "JUDGE", "start_char": 2199, "end_char": 2213, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Raghubar Dayal, J. This appeal.", "canonical_name": "RAGHUBAR DAYAL,\n\nJ."}}, {"text": "U.P. Government", "label": "ORG", "start_char": 2356, "end_char": 2371, "source": "ner", "metadata": {"in_sentence": "by special leave', raises the question whether Zamindari Abolition Compensation Bonds (shortly H termed Bonds) issued by the U.P. Government to intermediaries in payment of compensation payable on the basis of their rights under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act I of 1951), hereinafter referred to as the Act."}}, {"text": "July 24, 1956", "label": "DATE", "start_char": 3357, "end_char": 3370, "source": "ner", "metadata": {"in_sentence": "On July 24, 1956, the res- 0 pondent presented an application to the Agricultural Income-tax Assessing Officer, Allahabad, stating that he had no ready cash to pay the dues aiid that he was therefore depositing Bonds of the value of Rs."}}, {"text": "Allahabad", "label": "GPE", "start_char": 3466, "end_char": 3475, "source": "ner", "metadata": {"in_sentence": "On July 24, 1956, the res- 0 pondent presented an application to the Agricultural Income-tax Assessing Officer, Allahabad, stating that he had no ready cash to pay the dues aiid that he was therefore depositing Bonds of the value of Rs."}}, {"text": "August 1, 1956", "label": "DATE", "start_char": 3839, "end_char": 3853, "source": "ner", "metadata": {"in_sentence": "On August 1, 1956, the respondent made a similar application to the Collector complaining that the Assessing Officer had no valid reason to refuse to take the Bonds when the Bonds were negotiable instruments."}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 4359, "end_char": 4382, "source": "ner", "metadata": {"in_sentence": "Thereafter, thP respondent presented a writ petition to the High Court of Allahabad praying for the issue of a writ of certiorari Jr quashing the orders of the Assessing Officer and the Collector, Allahabad, for the issue of a writ of mandamus directing them to accept the Bonds in lieu of the tax dues and, in any case, to deduct the amount from the rehabilitation grant due to the petition.er and for the issue of a writ of prohibition directing the opposite parties from adopting coercive measures for the realisation of the tax due .e from the petitioner."}}, {"text": "Naib-Tehsildar Agriculture Income-tax Officer. Allahabad", "label": "ORG", "start_char": 5338, "end_char": 5394, "source": "ner", "metadata": {"in_sentence": "The counter affidavit filed by the Naib-Tehsildar Agriculture Income-tax Officer."}}, {"text": "s. 6(d)", "label": "PROVISION", "start_char": 5885, "end_char": 5892, "source": "regex", "metadata": {"statute": null}}, {"text": "July 1,\n\n1952", "label": "DATE", "start_char": 5987, "end_char": 6000, "source": "ner", "metadata": {"in_sentence": "43 /- was imposed for each default in payment of the four instalments and that the Bonds could not be accepted towards the tax due under s. 6(d) of the Act read with r. 4S of the Rules as the tax had fallen due in 1360 F, corresponding to July 1,\n\n1952 to June 30, 1953. ·"}}, {"text": "June 30, 1953", "label": "DATE", "start_char": 6004, "end_char": 6017, "source": "ner", "metadata": {"in_sentence": "43 /- was imposed for each default in payment of the four instalments and that the Bonds could not be accepted towards the tax due under s. 6(d) of the Act read with r. 4S of the Rules as the tax had fallen due in 1360 F, corresponding to July 1,\n\n1952 to June 30, 1953. ·"}}, {"text": "s. 6(d)", "label": "PROVISION", "start_char": 6420, "end_char": 6427, "source": "regex", "metadata": {"statute": null}}, {"text": "August 24, 1956", "label": "DATE", "start_char": 6856, "end_char": 6871, "source": "ner", "metadata": {"in_sentence": "The D High Court therefore quashed the order of the Collector dated August 24, 1956 and directed him to decide the respondent's application afresh in accordance with law as indicated above."}}, {"text": "s. 6(d)", "label": "PROVISION", "start_char": 7180, "end_char": 7187, "source": "regex", "metadata": {"statute": null}}, {"text": "24, 1956", "label": "DATE", "start_char": 7342, "end_char": 7350, "source": "ner", "metadata": {"in_sentence": "E The main contention for the appellant before us is that neither s. 6(d) of the Act nor r. SA provides that Bonds can be accepted in payment of agricultural income-tax and that therefore the order of the Collector dated August 24, 1956 was correct."}}, {"text": "Section 6(d)", "label": "PROVISION", "start_char": 7626, "end_char": 7638, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 7972, "end_char": 7976, "source": "regex", "metadata": {"statute": null}}, {"text": "July 1, 1952", "label": "DATE", "start_char": 8033, "end_char": 8045, "source": "ner", "metadata": {"in_sentence": "An amendment was made in this clause (d) by s. 3 of U.P. Act XVI of 1953, with retrospective effect from July 1, 1952, and the relevant portion of the provision after amendment reads thus:\n\n\"All arrears of revenue, . . .. .."}}, {"text": "August 17, 1954", "label": "DATE", "start_char": 8619, "end_char": 8634, "source": "ner", "metadata": {"in_sentence": "3266/I-A- 1056-1954 dated August 17, 1954 and its relevant portions read:\n\n\"S-A. Without prejudice to the right of the State Government lo recover the dues mentioned below by such other means, as may be open to it under law:\n\n(!)"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 8957, "end_char": 8966, "source": "regex", "metadata": {"statute": null}}, {"text": "Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950", "label": "STATUTE", "start_char": 8974, "end_char": 9034, "source": "regex", "metadata": {}}, {"text": "Agricultural Income-tax Act", "label": "STATUTE", "start_char": 9110, "end_char": 9137, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 6(d)", "label": "PROVISION", "start_char": 9623, "end_char": 9630, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Income-tax Act", "statute": "Agricultural Income-tax Act"}}, {"text": "s. 6(d)", "label": "PROVISION", "start_char": 9839, "end_char": 9846, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Income-tax Act", "statute": "Agricultural Income-tax Act"}}, {"text": "s. 6(d)", "label": "PROVISION", "start_char": 10133, "end_char": 10140, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Income-tax Act", "statute": "Agricultural Income-tax Act"}}, {"text": "Section 6S", "label": "PROVISION", "start_char": 10543, "end_char": 10553, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6S", "label": "PROVISION", "start_char": 10933, "end_char": 10938, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6(d)", "label": "PROVISION", "start_char": 12664, "end_char": 12676, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 13077, "end_char": 13091, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Apal allcwed. B", "label": "PETITIONER", "start_char": 13287, "end_char": 13302, "source": "ner", "metadata": {"in_sentence": "We accordingly allow the appeal, set aside the order of thi High Court and restore that of the Colkctor dated August 24, 1956 The respondent will pay the costs of the appeal to the appellants\n\nApal allcwed."}}]}
{"document_id": "1965_3_135_144_EN", "year": 1965, "text": "STATE OF BOMBAY (NOW MAHARASHTRA) v.\n\nNARUL LATIF KHAN February 22, 1965\n\n[P. B. GAJENDRAGADKAR, C.J., RAGHUBAR DAYAL AND\n\nV. RAMASWAMI, JJ.]\n\nDepartmental Enquiry-Charge-sheeted officer desiring to produce oral evidence-Refusal to record such evidence on the ground that the case against the officer rested on documents alo:ie--S'lfc~ refusal whether amounts to denial of reasonable opportumty--Cvt!\n\nServ'ices <Classification, Control & Appeal) Rules r. 55- ConsPtution of India, Art. 311(2).\n\nThe appellant who was in the service of a State Government asked for long leave which was refused. Subsequently he asked for ten days' leave which was granted. On the expiry of the leave period he did not join duty on the ground that he was seriously ill. The Government refused to accept the plea and instituted a departmental inquiry against him. The respondent wanted to produce oral evidence in support of his plea including the evidence of doctors who treated him, but the enquiry officer refused to record oral evidence on the ground that the case against the appellant rested on ciocuments alone and therefore no oral evidence was necessary. On the report of the enquiry officer the State Government ordered the compulsory retirement of the respondent. The latter filed a suit in which he claimed inter alia that the constitutional provision in Art. 311 had been contravened. The trial judge held against him but the High Court decided in his favour. The State Government appeal ed to the Supreme Court with certificate.\n\nThe narrow question to which the Court had to address itself was whether it was obligatory on the enquiry officer to give a reason able opportunity to the respondent to lead oral evidence and examine his doctors.\n\nHELD: (i) The Civil Services (Classification, Control and Appeal) Rules provide in r. 55 that if the charge-sheeted Officer so desires or if the authority concerned so directs an oral enquiry shall be held.\n\nThis provision is mandatory and is based on considerations of natural justice and fair play. Therefore when the respondent expressed his desire to the enquiry officer that he wanted to lead evidence in support of his plea, it was obligatory on the enquiry officer to have fixed a date for recording such oral evidence and give due intimation to the respondent in that behalf. p 43 D-Fl\n\n(ii) Though an enquiry officer would be justified in conducting the enquiry in such a way that its proceedings are not allowed to be unduly or deliberately prolonged, it would be impossible to accept the arument that if the charge-sheeted officer wants to lead oral eviden.ce the enquiry officer can say that having regard to the charges agams_t the officer he would not hold any oral enquiry r143 Hl\n\n(iii) In the _present case the witnesses whom the respondent wanted to examme ould. undoubtedly have given relevant evidence.\n\nHe wanted to examme his doctors but the enquiry officer failed to !five him an opportunity to do so. That introduced .a fatal infirmity\n\nm the whole nqmry as the respondent had not been given a reasonable opportunity to defend himself within the meeting of Art. 311(2) . . The appeal of the State Government had therefore to be dismissed. P44 A, Cl\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1040!\n\nA 63.\n\nC. K. Daphtary, Attorney General, M. S. K. Sastri and R. H.\n\nDhebar, for the appellant.\n\nC. B. Agarwala and A. G. Ratnaparkhi, for the respondent.\n\nThe Judgment of the Court was delivered by- B Gajendragadkar, C.J. The short question of Jaw which arises in this appeal is whether the appellant, the State of Bombay (now Maha_rashtra), shows that its predecessor State of Madhya Pradesh (heremaHer called the Government) had given a reasonable opportunity to the respondent, Narul Latif Khan, to defend himsel~ efore it passed the final order on June 6, 1952 compulsorily C\n\nretmg hllll under Article 353 of the Civil Service Regulations.\n\nBy this order, the respondent was compulsorily retired and in relaxation of Art. 353, the Government was pleased to allow the respondent to draw a compassionate allowance equal to the pension which would have been admissible to him had he been D invalidated.\n\nThis order was challenged by the respondent by filing a suit in the Court of the first Additional District Judge at Nagpur. In his plaint, the respondent alleged that the impugned order whereby he was compulsorily retired, was invalid and; he claimed a declarationthat it was ultra vires and inoperative. He also asked E for a declaration that he was entitled to be, restored to the post which he held on July 6, 1950, and that he should be given all pay, allowances, increments and promotions to which he would have been entitled if he had been permitted to continue in service.\n\nIn the result, the respondent asked for a decree for Rs. 62,237 with interest, at 6 per cent per annum from the date of the suit till realisa- F tion.\n\n' This claim was resisted by the appeilant on several grounds.\n\nThe principal ground on which the appellant challenged the respondent's claim, however, was that he had been given a reasonable opportunity to defend himself, and so, the impugned order G was perfectly valid, and legal. Several other pleas were also raised by the appellant. On these pleas, the learned trial Judge framed appropriate issues. The issue with which we are concerned in the present appeal, however, centll!'ed round the qustion as to whether the Constitutional provision prescribed by Art. 311 affording protection to the respondent had been contravened. The trial H Judge made a finding against the respondent on this issue. He also recorded his findings on the other issues with which we are not directly concerned in the present appeal. In regard to the money claim made by the respondent, the learned trial Judge made a finding that in case he was held entitled to such relief, a decree for Rs. 37,237 may have to be passed in his favour. In view of his conclusion that the impugned order was valid, no question arose\n\nSl'ATE v. NARUL LATfE (Gajendragadkar, O.J.) 137\n\nA for making such a decree in favour of the respondent. The respondent's suit, therefore, failed and was dimissed.\n\nThe respondent then took the matter in appeal before the High Court of Judicature at Bombay, Nagpur Bench. The High Court has, in substance, held that the constitutional provisions prescribed by Art. 311 have not been complied with by the appel- B !ant before it passed the impugned order against the respondent.\n\nIt has found that the departmental enquiry which was held suffered from the serious infirmity that the enquiry officer did not hold an oral enquiry and did not allow an opportunity to the respondent to lead his oral evidence.\n\nIt has also held that C the second notice served by the appellant on the respondent calling upon him to show cause why the report made by the enquiry officer should not be accepted and appropriate punishment should not be inflicted on him, was defective, and that also made the impugned order invalid. The High Court appears to have taken the view that the impugned order does not show that the ap- D pellant had taken into account the explanation offered by the respondent in response to the second notice issued by the appellant.\n\nAs a result of these findings, the High Court has reversed the conclusion of the trial Court on the main question and has found that the impugned order is invalid and inoperative. On that view, the High Court considered the money claim made by the respondent, E and it confirmed the finding of the trial Court that the respondent would be entitled to a decree for Rs. 37,237. In fact, the alternative finding recorded by the trial Court in respect of the amount to which the respondent would be entitled in case he succeeded in cliallenging the validity of the impugned order, was not questioned before the High Court In the result, the High F Court allowed the appeal and passed a money decree for Rs. 37,237 in favour of the respondent in terms of prayer (A) of paragraph 31 of the plaint. The appellant then applied for and obtained a certificate from the High Court and it is with the said certificate that it has brought the present appeal before this Court. That is how the main .question which falls for our deci- G sion is whether the constitutional provision prescribed by Art. 311 has been complied with by the appellant beforr ; t passed the impugned order.\n\nAt this stage, it may be relevant to refer to some material facts. The respondent was appointed as Extra Assistant Commis- B sioner in 1926 and since then he had been holding various offices in the State service of the then Madhya Pradesh Government. In\n\n1950, he was holding the post of a Treasury Officer at Ngpur. It appears that privilege leave for over a year was due to him and he had applied for four months' privilege leave. On June 12, .1950,\n\nGovernment informed him that his request fer leave was rejected and he was told that no further application for leave would be entertained in future. On July 7, 1950, the respondent proceeded\n\non casual leave for two days, and on July 8, 1950 he renewed A his application for four months' leave on medical grounds. This application was accompanied by a certificate given by Dr. Dange.\n\nGovernment, therefore, decided to constitute a Medical Board for examining the respondent in order to decide whether leave on medical grounds should be granted to him. Accordingly, the respondent appeared before a Special Medical Board on July 22, E\n\n1950. The Medical Board, however, could not come to a decision as to whether the respondent should be granted leave on medical grounds for four months. It recommended that the respondent should get himself admitted in the Mayo Hospital, Nagpur, for observation and investigation. In accordance with this report, Government asked the respondent to get himself admitted in the C Mayo Hospital in time, so that the Board could examine him on August 8, 1950. The respondent refused to go to the Mayo Hospital and pressed that he should be allowed to go to Calcutta to receive medical treatment from experts. It appeus that on July 26, 195Q, the respondent received a telegram from Raipur stating that his daughter was dangerously ill there. He, therefore, made D another application on the same day requesting for ten days' leave to enable him to go to Raipur and see his ailing daughter. On July 31, 1950, Government granted the respondent's request.\n\nAccordingl(y, the respondent went to Raipur.\n\nFrom Raipur he renewed his application for four months' leave on Medical grounds and produced certificates from Dr. Bhalerao and Dr. Kashyap.\n\nE That led to a lengthy correspondence between the respondent and the Government which shows that Government insisted on his appearing before the Medical Board and the respondent was not prepared to go to Nagpur because he alleged that he was seriously ill and could not undertake a journey to Nagpur. Ultimately, on September 9, 1950, Government called upon the respondent to F resume his duties within three days from the receipt of the ssid letter failing which he was told that he would be suspended and a departmental enquiry would be started against him. On October\n\n4, 1950, the respondent wrote a lengthly reply setting forth his contentions in detail. Since he did not resume his duties, Government decided to suspend him and start a departmental enquiry against G him. Mr. S. N. Mehta, I.C.S., was accordingly appointed to hold the enquiry. On November 29, 1950, Mr. Mehta wrote to the respondent that Government had directed him to conduct. the departmental enquiry, and called upon the respondent to attend his office on December 7, 1950, at 11.00 a.m. The respondent, however, did not appear before him and wrote to Mr. Mehta that owing to his H illness, he' was unable to appear before him. He again pleaded that he was seriously ill.\n\nOn January 15, 1951, Mr. Mehta served the respondent with a charge-sheet. Three charges were framed against him. The first charge was that he had deliberately disobeyed the orders of Government when he was asked to get himself admitted in the Mayo\n\nSTATE V. NARUL LATIF (Gaje,1ulragadkar, 0. J.) !39\n\nA Hospital for observation and investigation. The second charge was that he had failed to report for duty even though o leave was sanctioned to him by Government and he was specifically ordered by Government to report for duty. The third charge was that he had persistently disobeyed the orders of Government and he had thereby shown himself unfit to continue a~ a meber of the State B Civil Service. Material allegations on which rehance was placed against the respondent in support of ihese charges were also specified under the respective charges.\n\nThe respondent was, however, not prepared to appear before Mr. Mehta and he raised several technical contentions. Ultimately, C he sent his written statement and denied all the charges .. His case appears to have been that he had not deliberately disobeyed any of the orders issued by Government. In regard to his getting admitted in the Ma yo Hospital, he seems to have taken the plea that when he was allowed to go on casual leave to see his ailing daughter at Raipur, it was clear that he could not have got himself admitted D in the Mayo Hospital so as to enable the Medical Board to examine him on August 8, 1950. In respect of the charge that he had persistently refused to obey the orders of Government, his case was that he was dangerously ill and that he genuinely apprehended that if he undertook a journey to resume his duty, he might even collapse. He requested the enquiry officer to allow him E to appear by a lawyer whom he would instruct to cross-examine the witnesses whom the Government would examine against him.\n\nHe also stated that he wanted to give evidence of his own doctors who would depose to his ailing condition at the relevant time.\n\nF It appears that Mr. Mehta wanted to accommcdate the respondent as much as he could and when he found that the respondent was not appearing in person before him, he in fact fixed a date for hearing at Raipur on September 21, 1951 where he happened to be camping. On that date, the respondent appeared before Mr. Mehta and Mr. Mehta made a note as to what trans- G pired on that date. The note shows that \"the whole case was discussed with the respondent. His plea was that he should be allowed to appear through a counsel, but it was explained to him in detail that as far as the case can be seen from Government side at present, it does not involv_e the taking up oral evidence. He agreed that he would not press for this facility. He would, however, like to H give a detailed answer to the charge-sheet. He also undertook to appear in person regularly in future\". Thereafter, Mr. Mehta required the respondent to file his detailed written statement. and in fact, the respondent did file his detailed written statement containing the pleas to which we have already referred. On November 8, 1951, Mr. Mehta wrote to the respondent that he would be glad to hear him in person in case he wished to make an oral statement on November 20, 1951, and when the respondent did not\n\nappear on the said date, Mr. Mehta proceeded to examine the docu- A mentary evidence showing the failure of the respondent to comply with the orders issued by Government and made his report on November 24, 1951. He found that the three charges framed against the respondent were proved. In his report, Mr. Mehta observed that \"the conduct of the respondent and the language used by him from time to time in his communications discloses an attitude of B disobedience and insubordination which no Government can tolerate from its subordinate officers\". We may incidentally observe that the comment thus made by Mr. Mehta in regard to the communications addressed by the respondent to him appears to, us to be fully justified but, in our opinion, this aspect of the matter cannot have any material bearing on the question with which we C are concerned. The validity of the impugned order must be judged objectively without considering the impropriety of the language used by the respondent or the reluctance shown by him to appear before Mr. Mehta.\n\nIn his report, Mr. Mehta has also observed that when the D respondent met him, he explained to him that the case did not involve recording of any oral evidence as it was based on documents only. Mr. Mehta adds that according to the impression he got at that time, the respondent was satisfied that in the circumstances, the assistance of a counsel was unnecessary. It is, how- E ever, plain from the several letters written by the respondent to Mr. Mehta that he was insisting upon an oral enquiry and that he wanted to examine his doctors to show that he was so ill at the relevant time that he could not have resumed his duties. On March 2, 1951, the respondent wrote to Mr. Mehta stating, inter a/ia, that he wished to put in the witness-box a few high-ranking F Government officers and the doctors whom he had consulted about his illness. Earlier .on January 20, 1951, he had written to Mr. Mehta requesting him to conduct an oral enquiry as laid down in paragraph 8(iv) G.B. Circular 13. Similarly, on April 23, 1951, he again informed Mr. Mehta that in his opinion the institution of the departmental enquiry after suspending him was illegal G and had, caused him grave injury, and he added that oral and documentary evidence will be produced in defence.\n\nIt does appear that Mr. Mehta explained to the respondent that so far as Government was concerned, it rested its case merely on documents and did not think it necessary to examine any wit' B nesses, and thereupon the respondent agreed that he need not have the facility of the assistance of a lawyer. But it is clear from the remarks made by Mr. ehta in the order sheet on September 21, 1951, ad the obervahons made by him in his report that the only pomt on which the respondent agreed with Mr. Mehta was that he need not ?e allowed the assistance of the lawyer in the departmental enqmry. We have carefully examined the record in\n\nSTATE v. NARUL LATIF (Galjenaragadkar, c. J.) 141\n\nA this case and we see no justification for assuming that the respondent at any time gave up his demand for an oral enquiry in the sense that he should be given permission to cite his doctors in support of his plea that his failure to resume his duties was due to his 111-health. The char11e agains~ him was that. he had. deliberately disobeyed the Government orders, and 1t 1s conceivable B that this charge could have been met by the respondent by showing that though he disobeyed the orders, the disobedience was in no sense deliberate because his doctors had advised him to lie in bed; and thus considered, his desire to lead medical evidence cannot be treated as a mere subterfuge to prolong the enquiry. It is true that the respondent did not give a list of his witnesses; but C he had named his doctors in his communications to Mr. Mehta, and in fact Mr. Mehta never fixed any date for taking the evidence of the witnesses whom the respondent wanted to examine. If Mr. Mehta had told the respondent that he would take the evidence of his witnesses on a specified date and the respondent had failed to appear on the said date with his witnesses, it would have D been an entirely different matter. Therefqre, the position is that Mr. Mehta did not hold an oral enquiry and did not give an '-'P portunity to the respondent to examine his witnesses and so, the question which arises for our decision is: does the failure of Mr. Mehta to hold an oral enquiry amount to a failure to give a reasonable opportunity to the respondent within the meaning E of Art. 311?\n\nThe requirements of Art. 311(2) have been considered by this Court on several occasions. 'At the relevant time, Art. 311(2) provided that no person to whom Art. 311 applies shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.--It is common ground that the impugned order of compulsory retirement attracts the provisions of Art. 311 (2). If it appears that the relevant statutory rule regulating the departmental enquiry which was held against the respondent made it obligatory on the enquiry officer to hold an oral enquiry if the respondent so demanded, then there would be no doubt that the failure of the enquiry officer to hold such an oral enquiry wou Id introduce a serious infirmity in the enquiry and would plainlv amount to the failure of_ the appellant to give a reasonable opportunity to the respondent. This position is not disputed by the learned Attorney-General and is indeed well-settled. So, the narrow question to which we must address ourselves is whether it was obligatory on Mr. Mehta to hold an oral enquiry and give a reasonable oppcrtumty to the respondent to lead oral evidence and examine his doctors. We will assume for the purpose of this appeal that in a given case, Government would be justified in placing its case against the charge-sheeted officer only on documents and may be under no obligation to examine any witnesses,\n\n142 SuPREHE\n\nCOURT\n\nREPORTS\n\n(1965) 3 s.c.L\n\nthough we may incjjentally observe that even in such cases, if the A officer desires that the persons whose reports or orders are bemg relied upon against him should be offered for cross-examination, it may have to be considered whether such an opportunity ought not to be given to the officer; but that aspect of the matter we will not consider in the present appeal. Therefore, even if it is lSsumed that Gcvernment could dispense with the examination of B witnesses in support of the charges framed against the respondent, does the relevant rule make it obligatory on the Enquiry Officer to hold an oral enquiry and give the respondent a chance to exH '\"ine his witnesses or not?\n\nThis question falls to be considered on the constructicn of 0 rule 55 of the Civil Servif:es (~::Jassification, Control and Appeall Rules. This rule reads thus: -\n\n\"Without prejudice to the provisions of the Public Servants lnquirie> Act, 1850, no order of dismissal, removal or reducticn shall b.: passed on a. member of a service (other than an order based on facts which have led to the conviction in a Criminal Ccurt or by a Court, Martial) unless he has bee; i infor.ned in writing of the grounds on which it is proposed to take act:on, and has been afforded an adequate opportunity of defe11qjng-himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which sha11 be communicated to the person charged together with a statement of the allega(1cns on which each charge is basd and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so des'res or if the authority concerned so direct, an oral enquiry shall be held. At that enquiry era! evi:lence shall be heard as to such of the allegations as are not admitted. and tlae person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called. as h~ inay wish, provided that the officer conducting the enquiry may, for special and sufficient reason t0 be recorded in writing, refuse to call a witness. The proceeding\" shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof.\" It appears that the Government of Madhya Pradesh had issued a Circular explaining this Rule. The Circular contained Rule 8 which is relevant. Tt provides that \"particular attention is invited to the provisions regarding oral enquiry. In case the person charged desires that an oral enquiry shculd be held. the authority holdin~ the departmental enquiry has no option to refuse it\". The High\n\nSTATE V. NAIIUL LATIF (Gajndragaakar, 0.J.) 143\n\nA Court seems to have based its conclusion substantially, if not entirely, on this rule. We do not propose to adopt that course. The rule may be no more than a circular issued by Government and we do not propose to examine the question as to whether it baa the force of a statutory rule. Our decision would, therefore, be based on the construction of Rule 55 of the Civil Services Rules B which admittedly applied and wh'ch admittedly is a statutory rule.\n\nThe relevant clause in this Rule provides that the officer charge-sheeted shall be required within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. This clause has been complied with c in the present proceedings. Mr. Mehta gave notice to the respondent to appear before him in person on the 20th November, 1951 and the respondent did' net appear on that date. Jt is the next clause on which the decision of the present appeal depends.\n\nThis clause _lays down that if he, that is to say the charge-sheeted officer. so desires or if the authority concerned so directs, an •lral D enquiry shall be held. In our opinion, it is plain that the requirement that an oral enquiry shall be held if the authority concerned so directs, or if the charge-sheeted officer so desires is mandatory. fnjeed, tis requirement is plainly based upon considerations of natural justice and fairplay. If the charge-sheeted officer wants to le; id his own evidence in support of his plea, it is obviously essential that he shculd be given an opportunity to lead such evi- E dence. Therefore, we feel no hesitation in holding that once the respondent expressed his desire to Mr. Mehta that he wanted to lead evidence in support of his plea that his alieged disobedience of the Government o•ders was not deliberate, it was obligatory on Mr. Mehta to have fixed a date for recording such oral evidence and give due intimation to the respondent in that behalf.\n\nIt is true that the oral enquiry which the enquiry officer is bound to hold can well be regulated by him in his discretion.\n\nIf the charge-sheeted officer starts cross-examining the departmental witnesses in an irrelevant manner, such cross-examination can be checked and controlled. If the officer desires to examine witnesses whose evidence may appear to the enquiry officer to be thoroughly irrelevant, the enquiry officer may refuse to examine s:.ich witnesses; out in doing so, he will have to record his spec'al and sufficient reasons. In other words, the right given to the charge. sheeted officer to cross-examine the departmental witnesses or examine his own witnesses can be legitimately examined and con- H trolled by the enquiry officer; he would be justified in conductiny the enquiry in such a way that its proceedings are not allowed to be unduly or deliberateiy prolonged. But, in our opinion, it would be impossible to accept the argument that if the charge-sheeted cfficer wants to lead oral evidence, the enquiry officer can say that having regard to the charges framed against the officer, he would not hold any oral enquiry. In the present case, the witnesses\n\n[41 SUPREJl!ll\n\nCOURT RlilPOR'rS [19tlfij 3 S, U, lt\n\nwhom the respondent wanted to examine would undoubtedly hwc A given relevant evidence. If the doctors who treated the respondent had come and told the enquiry officer that the condition of the respondent was so bad that he could not resume work, that undoubtedly woul::I have been a relevant and material fact to consider in deciding whether the charges framed against the respon dent were proved. Even if we disapprove of the attitude adopted B by the respondent in the ccurse of this enquiry and condemn him for using .extravagant words and making unreasonable contentions\n\n; n his communications to the enquiry officer, the fact still remains that he wanted to examine his doctors, and though he intimated to Mr. Mehta that he desired to examine his doctors, Mr. Mehta failed to give him an oppo:tunity to do so. That, in our opinion, C introduces a fatal infirmity in the whole enquiry which means that the respondent has not ben given a reasonable opportunity to defend himself within the meaning of Art. 311(2). On that view of the matter, it is unnecessary to consider whether the High Court was _right in its other conclusions that the second notice served by tlie appellant on the respondent was defective and that the D final order was also defective Inasmuch as it did not appear that\n\nthe appellant had taken into account the representation made by respondent\n\nIt is not disputed by the learned Attorney-General that if we hold that the enquiry conducted by Mr. Mehta contravened the E mandatory provision of r. 55, the decision of the High Court\n\ncuuld be sustamed on that ground alone.\n\nIn the result, the appeal fails and is dismissed with costs.\n\nAppeal dismissed.", "total_entities": 69, "entities": [{"text": "STATE OF BOMBAY (NOW MAHARASHTRA", "label": "PETITIONER", "start_char": 0, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "STATE OF BOMBAY (NOW MAHARASHTRA)", "offset_not_found": false}}, {"text": "NARUL LATIF KHAN", "label": "RESPONDENT", "start_char": 38, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "NARUL LATIF KHAN", "offset_not_found": false}}, {"text": "February 22, 1965", "label": "DATE", "start_char": 55, "end_char": 72, "source": "ner", "metadata": {"in_sentence": "STATE OF BOMBAY (NOW MAHARASHTRA) v.\n\nNARUL LATIF KHAN February 22, 1965\n\n[P. B. GAJENDRAGADKAR, C.J., RAGHUBAR DAYAL AND\n\nV. RAMASWAMI, JJ.]"}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 75, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL", "label": "JUDGE", "start_char": 103, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 123, "end_char": 140, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 482, "end_char": 493, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 1348, "end_char": 1356, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court", "label": "COURT", "start_char": 1492, "end_char": 1505, "source": "ner", "metadata": {"in_sentence": "The State Government appeal ed to the Supreme Court with certificate."}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 3120, "end_char": 3131, "source": "regex", "metadata": {"statute": null}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 3274, "end_char": 3288, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney General, M. S. K. Sastri and R. H.\n\nDhebar, for the appellant."}}, {"text": "M. S. K. Sastri", "label": "LAWYER", "start_char": 3308, "end_char": 3323, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney General, M. S. K. Sastri and R. H.\n\nDhebar, for the appellant."}}, {"text": "R. H.\n\nDhebar", "label": "LAWYER", "start_char": 3328, "end_char": 3341, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney General, M. S. K. Sastri and R. H.\n\nDhebar, for the appellant."}}, {"text": "C. B. Agarwala", "label": "LAWYER", "start_char": 3363, "end_char": 3377, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala and A. G. Ratnaparkhi, for the respondent."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 3382, "end_char": 3399, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala and A. G. Ratnaparkhi, for the respondent."}}, {"text": "B Gajendragadkar", "label": "JUDGE", "start_char": 3466, "end_char": 3482, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by- B Gajendragadkar, C.J. The short question of Jaw which arises in this appeal is whether the appellant, the State of Bombay (now Maha_rashtra), shows that its predecessor State of Madhya Pradesh (heremaHer called the Government) had given a reasonable opportunity to the respondent, Narul Latif Khan, to defend himsel~ efore it passed the final order on June 6, 1952 compulsorily C\n\nretmg hllll under Article 353 of the Civil Service Regulations."}}, {"text": "State of Bombay", "label": "PETITIONER", "start_char": 3573, "end_char": 3588, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by- B Gajendragadkar, C.J. The short question of Jaw which arises in this appeal is whether the appellant, the State of Bombay (now Maha_rashtra), shows that its predecessor State of Madhya Pradesh (heremaHer called the Government) had given a reasonable opportunity to the respondent, Narul Latif Khan, to defend himsel~ efore it passed the final order on June 6, 1952 compulsorily C\n\nretmg hllll under Article 353 of the Civil Service Regulations."}}, {"text": "Narul Latif Khan", "label": "RESPONDENT", "start_char": 3748, "end_char": 3764, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by- B Gajendragadkar, C.J. The short question of Jaw which arises in this appeal is whether the appellant, the State of Bombay (now Maha_rashtra), shows that its predecessor State of Madhya Pradesh (heremaHer called the Government) had given a reasonable opportunity to the respondent, Narul Latif Khan, to defend himsel~ efore it passed the final order on June 6, 1952 compulsorily C\n\nretmg hllll under Article 353 of the Civil Service Regulations.", "canonical_name": "NARUL LATIF KHAN"}}, {"text": "June 6, 1952", "label": "DATE", "start_char": 3819, "end_char": 3831, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by- B Gajendragadkar, C.J. The short question of Jaw which arises in this appeal is whether the appellant, the State of Bombay (now Maha_rashtra), shows that its predecessor State of Madhya Pradesh (heremaHer called the Government) had given a reasonable opportunity to the respondent, Narul Latif Khan, to defend himsel~ efore it passed the final order on June 6, 1952 compulsorily C\n\nretmg hllll under Article 353 of the Civil Service Regulations."}}, {"text": "Article 353", "label": "PROVISION", "start_char": 3866, "end_char": 3877, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 353", "label": "PROVISION", "start_char": 3989, "end_char": 3997, "source": "regex", "metadata": {"statute": null}}, {"text": "first Additional District Judge at Nagpur", "label": "COURT", "start_char": 4254, "end_char": 4295, "source": "ner", "metadata": {"in_sentence": "This order was challenged by the respondent by filing a suit in the Court of the first Additional District Judge at Nagpur."}}, {"text": "July 6, 1950", "label": "DATE", "start_char": 4578, "end_char": 4590, "source": "ner", "metadata": {"in_sentence": "He also asked E for a declaration that he was entitled to be, restored to the post which he held on July 6, 1950, and that he should be given all pay, allowances, increments and promotions to which he would have been entitled if he had been permitted to continue in service."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 5468, "end_char": 5476, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Judicature at Bombay, Nagpur Bench", "label": "COURT", "start_char": 6229, "end_char": 6277, "source": "ner", "metadata": {"in_sentence": "The respondent then took the matter in appeal before the High Court of Judicature at Bombay, Nagpur Bench."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 6367, "end_char": 6375, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 8328, "end_char": 8336, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh Government", "label": "ORG", "start_char": 8640, "end_char": 8665, "source": "ner", "metadata": {"in_sentence": "The respondent was appointed as Extra Assistant Commis- B sioner in 1926 and since then he had been holding various offices in the State service of the then Madhya Pradesh Government."}}, {"text": "Ngpur", "label": "GPE", "start_char": 8726, "end_char": 8731, "source": "ner", "metadata": {"in_sentence": "In\n\n1950, he was holding the post of a Treasury Officer at Ngpur."}}, {"text": "June 12, .1950", "label": "DATE", "start_char": 8852, "end_char": 8866, "source": "ner", "metadata": {"in_sentence": "On June 12, .1950,\n\nGovernment informed him that his request fer leave was rejected and he was told that no further application for leave would be entertained in future."}}, {"text": "July 7, 1950", "label": "DATE", "start_char": 9022, "end_char": 9034, "source": "ner", "metadata": {"in_sentence": "On July 7, 1950, the respondent proceeded\n\non casual leave for two days, and on July 8, 1950 he renewed A his application for four months' leave on medical grounds."}}, {"text": "July 8, 1950", "label": "DATE", "start_char": 9099, "end_char": 9111, "source": "ner", "metadata": {"in_sentence": "On July 7, 1950, the respondent proceeded\n\non casual leave for two days, and on July 8, 1950 he renewed A his application for four months' leave on medical grounds."}}, {"text": "Dange", "label": "OTHER_PERSON", "start_char": 9247, "end_char": 9252, "source": "ner", "metadata": {"in_sentence": "This application was accompanied by a certificate given by Dr. Dange."}}, {"text": "July 22, E\n\n1950", "label": "DATE", "start_char": 9494, "end_char": 9510, "source": "ner", "metadata": {"in_sentence": "Accordingly, the respondent appeared before a Special Medical Board on July 22, E\n\n1950."}}, {"text": "Mayo Hospital, Nagpur", "label": "ORG", "start_char": 9728, "end_char": 9749, "source": "ner", "metadata": {"in_sentence": "It recommended that the respondent should get himself admitted in the Mayo Hospital, Nagpur, for observation and investigation."}}, {"text": "C Mayo Hospital", "label": "ORG", "start_char": 9881, "end_char": 9896, "source": "ner", "metadata": {"in_sentence": "In accordance with this report, Government asked the respondent to get himself admitted in the C Mayo Hospital in time, so that the Board could examine him on August 8, 1950."}}, {"text": "August 8, 1950", "label": "DATE", "start_char": 9945, "end_char": 9959, "source": "ner", "metadata": {"in_sentence": "In accordance with this report, Government asked the respondent to get himself admitted in the C Mayo Hospital in time, so that the Board could examine him on August 8, 1950."}}, {"text": "Mayo Hospital", "label": "ORG", "start_char": 9997, "end_char": 10010, "source": "ner", "metadata": {"in_sentence": "The respondent refused to go to the Mayo Hospital and pressed that he should be allowed to go to Calcutta to receive medical treatment from experts."}}, {"text": "Calcutta", "label": "GPE", "start_char": 10058, "end_char": 10066, "source": "ner", "metadata": {"in_sentence": "The respondent refused to go to the Mayo Hospital and pressed that he should be allowed to go to Calcutta to receive medical treatment from experts."}}, {"text": "July 26, 195Q", "label": "DATE", "start_char": 10128, "end_char": 10141, "source": "ner", "metadata": {"in_sentence": "It appeus that on July 26, 195Q, the respondent received a telegram from Raipur stating that his daughter was dangerously ill there."}}, {"text": "Raipur", "label": "GPE", "start_char": 10183, "end_char": 10189, "source": "ner", "metadata": {"in_sentence": "It appeus that on July 26, 195Q, the respondent received a telegram from Raipur stating that his daughter was dangerously ill there."}}, {"text": "July 31, 1950", "label": "DATE", "start_char": 10394, "end_char": 10407, "source": "ner", "metadata": {"in_sentence": "On July 31, 1950, Government granted the respondent's request."}}, {"text": "Bhalerao", "label": "OTHER_PERSON", "start_char": 10617, "end_char": 10625, "source": "ner", "metadata": {"in_sentence": "From Raipur he renewed his application for four months' leave on Medical grounds and produced certificates from Dr. Bhalerao and Dr. Kashyap."}}, {"text": "Kashyap", "label": "OTHER_PERSON", "start_char": 10634, "end_char": 10641, "source": "ner", "metadata": {"in_sentence": "From Raipur he renewed his application for four months' leave on Medical grounds and produced certificates from Dr. Bhalerao and Dr. Kashyap."}}, {"text": "Nagpur", "label": "GPE", "start_char": 10849, "end_char": 10855, "source": "ner", "metadata": {"in_sentence": "E That led to a lengthy correspondence between the respondent and the Government which shows that Government insisted on his appearing before the Medical Board and the respondent was not prepared to go to Nagpur because he alleged that he was seriously ill and could not undertake a journey to Nagpur."}}, {"text": "September 9, 1950", "label": "DATE", "start_char": 10961, "end_char": 10978, "source": "ner", "metadata": {"in_sentence": "Ultimately, on September 9, 1950, Government called upon the respondent to F resume his duties within three days from the receipt of the ssid letter failing which he was told that he would be suspended and a departmental enquiry would be started against him."}}, {"text": "October\n\n4, 1950", "label": "DATE", "start_char": 11208, "end_char": 11224, "source": "ner", "metadata": {"in_sentence": "On October\n\n4, 1950, the respondent wrote a lengthly reply setting forth his contentions in detail."}}, {"text": "S. N. Mehta", "label": "OTHER_PERSON", "start_char": 11427, "end_char": 11438, "source": "ner", "metadata": {"in_sentence": "Mr. S. N. Mehta, I.C.S., was accordingly appointed to hold the enquiry."}}, {"text": "November 29, 1950", "label": "DATE", "start_char": 11498, "end_char": 11515, "source": "ner", "metadata": {"in_sentence": "On November 29, 1950, Mr. Mehta wrote to the respondent that Government had directed him to conduct."}}, {"text": "Mehta", "label": "OTHER_PERSON", "start_char": 11521, "end_char": 11526, "source": "ner", "metadata": {"in_sentence": "On November 29, 1950, Mr. Mehta wrote to the respondent that Government had directed him to conduct.", "canonical_name": "Mehta"}}, {"text": "December 7, 1950", "label": "DATE", "start_char": 11677, "end_char": 11693, "source": "ner", "metadata": {"in_sentence": "the departmental enquiry, and called upon the respondent to attend his office on December 7, 1950, at 11.00 a.m. The respondent, however, did not appear before him and wrote to Mr. Mehta that owing to his H illness, he' was unable to appear before him."}}, {"text": "January 15, 1951", "label": "DATE", "start_char": 11897, "end_char": 11913, "source": "ner", "metadata": {"in_sentence": "On January 15, 1951, Mr. Mehta served the respondent with a charge-sheet."}}, {"text": "September 21, 1951", "label": "DATE", "start_char": 14122, "end_char": 14140, "source": "ner", "metadata": {"in_sentence": "F It appears that Mr. Mehta wanted to accommcdate the respondent as much as he could and when he found that the respondent was not appearing in person before him, he in fact fixed a date for hearing at Raipur on September 21, 1951 where he happened to be camping."}}, {"text": "November 8, 1951", "label": "DATE", "start_char": 14990, "end_char": 15006, "source": "ner", "metadata": {"in_sentence": "On November 8, 1951, Mr. Mehta wrote to the respondent that he would be glad to hear him in person in case he wished to make an oral statement on November 20, 1951, and when the respondent did not\n\nappear on the said date, Mr. Mehta proceeded to examine the docu- A mentary evidence showing the failure of the respondent to comply with the orders issued by Government and made his report on November 24, 1951."}}, {"text": "November 20, 1951", "label": "DATE", "start_char": 15133, "end_char": 15150, "source": "ner", "metadata": {"in_sentence": "On November 8, 1951, Mr. Mehta wrote to the respondent that he would be glad to hear him in person in case he wished to make an oral statement on November 20, 1951, and when the respondent did not\n\nappear on the said date, Mr. Mehta proceeded to examine the docu- A mentary evidence showing the failure of the respondent to comply with the orders issued by Government and made his report on November 24, 1951."}}, {"text": "November 24, 1951", "label": "DATE", "start_char": 15378, "end_char": 15395, "source": "ner", "metadata": {"in_sentence": "On November 8, 1951, Mr. Mehta wrote to the respondent that he would be glad to hear him in person in case he wished to make an oral statement on November 20, 1951, and when the respondent did not\n\nappear on the said date, Mr. Mehta proceeded to examine the docu- A mentary evidence showing the failure of the respondent to comply with the orders issued by Government and made his report on November 24, 1951."}}, {"text": "March 2, 1951", "label": "DATE", "start_char": 16866, "end_char": 16879, "source": "ner", "metadata": {"in_sentence": "On March 2, 1951, the respondent wrote to Mr. Mehta stating, inter a/ia, that he wished to put in the witness-box a few high-ranking F Government officers and the doctors whom he had consulted about his illness."}}, {"text": "January 20, 1951", "label": "DATE", "start_char": 17087, "end_char": 17103, "source": "ner", "metadata": {"in_sentence": "Earlier .on January 20, 1951, he had written to Mr. Mehta requesting him to conduct an oral enquiry as laid down in paragraph 8(iv) G.B. Circular 13."}}, {"text": "April 23, 1951", "label": "DATE", "start_char": 17239, "end_char": 17253, "source": "ner", "metadata": {"in_sentence": "Similarly, on April 23, 1951, he again informed Mr. Mehta that in his opinion the institution of the departmental enquiry after suspending him was illegal G and had, caused him grave injury, and he added that oral and documentary evidence will be produced in defence."}}, {"text": "ehta", "label": "OTHER_PERSON", "start_char": 17840, "end_char": 17844, "source": "ner", "metadata": {"in_sentence": "But it is clear from the remarks made by Mr. ehta in the order sheet on September 21, 1951, ad the obervahons made by him in his report that the only pomt on which the respondent agreed with Mr. Mehta was that he need not ?", "canonical_name": "Mehta"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 19734, "end_char": 19742, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 19765, "end_char": 19776, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 19857, "end_char": 19868, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 19901, "end_char": 19909, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 20188, "end_char": 20196, "source": "regex", "metadata": {"statute": null}}, {"text": "Control and Appeall Rules", "label": "STATUTE", "start_char": 22063, "end_char": 22088, "source": "regex", "metadata": {}}, {"text": "Government of Madhya Pradesh", "label": "ORG", "start_char": 23680, "end_char": 23708, "source": "ner", "metadata": {"in_sentence": "It appears that the Government of Madhya Pradesh had issued a Circular explaining this Rule."}}, {"text": "20th November, 1951", "label": "DATE", "start_char": 24918, "end_char": 24937, "source": "ner", "metadata": {"in_sentence": "Mr. Mehta gave notice to the respondent to appear before him in person on the 20th November, 1951 and the respondent did' net appear on that date."}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 28300, "end_char": 28311, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_145_160_EN", "year": 1965, "text": "UNION OF INDIA v.\n\nMAHADEOLAL PRABHUDAYAL February 23, 1965. [K. N. WANCHOO, J. R. MuDHOLKAR ANDS. M. SIKRI, JJ.] Indian Railways Act (!f of 1890), ss. 72 and 77-Risk-note in Form Z-Mode of proof of liability of railway administration- Notice under s. 77-When necessary.\n\nOut of a consignment of 60 bales of piece goods despatched by the Railway, under risk-note Form Z, only 29 bales were delivered to the respondent who was the consignee. By sending the consignment thus, the consignor got a specially reduced rate but the burden was thrown on him, of proving misconduct on the part of the railway or its servants, if there was a loss of goods. The risk\n\nnote also imposed an obligation on the Railway, to disclose how the consignment was dealt with by it, during the time the consignment was in its i; ossession or control. The respondent wrote a letter to the Chief Commercial Manager of the Railway stating that 60 D bales were booked but only; 29 bales had been delivered, and that a suit for damages would be filed. The letter was sent within 6 months of the booking of the consignment and contained the details as to how the amount of damage was arrived at. Later on, a notice was given under s. 80 of the Civil Procedure Code, 1908, and a suit was filed for damages. But, before the filing of the suit, there was no demand by the consignor for a disclosure as to how the consignment E was dealt with by the Railway throughout the period it was in its possession or control. The Railway however, made a disclosure in its written statement as 'to how the consignment was dealt with throughout that period. Its defence was that, there was a theft in the running train and that was how part of the consignment was lost and not due to any misconduct on the part of the Railway or its eervants. l!:ven after the suit was filed and evidence let in at the\n\nI!'\n\ntrial, by 'the ra'.lway there was no statement by the respondent at any stage that the disclosure made by the Railway in the written statement or in the evidence, was in any way inadequate. The respondent never told the court a, fter the evidence of the Railway was over, that he was not satisfied with the disclosure and that the Railway should be asked to make a further disclosure. The suit was dismissed by the trial court but decreed on appeal, by the High Court.\n\nIn the appeal to the Supreme Court it was contended that, (i) the suit was barred by s. 77 of the Indian Railways Act, 1890, inasmuch as notice required therein was not given by the respondent, and (ii) under the terms of the risk-note the Railway was absolved from all responsibility for the loss of the goods consigned thereunder, from any cause whatsoever. except upon proof of miscon-\n\nH duct of the Railway or its servants, that the burden of proving such misconduct was on the resp0ndent and th!tt the respondent had failed to discharge the burden.\n\nHELD: (i) A notice under s. 77 of the Act is necessary in the case of non-deHvery which arises from the loss of goods. Though the letter, written by the respondent to the Chief Commercial Manager, was not specifically stated to be a notice under the section it gave all the particulars necessary for such a notice and it was also given within time prescribed. Therefore, the letter was sufllcjent notice for the purpose of the Act. rl49 1)..Fl\n\nSUPREME\n\nCOURT\n\nREPORTS [1965] 3 s.c.R.\n\nGovernor Genera! in Council v. Musaddi!a! [196113 _S.C.R. 647 and Jatmu!! Bhojraj v. The Darjeeling Himalayan Railway Co.\n\nUd. [19631 2 S.C.R. 832, followed.\n\n(ii) The view of the High Court, that there was a breach of the condition relating to complete disclosure, and that on such. breach the risk-note could be completely ignored and the responsibility of the Railway judged purely on the basis of s. 72(1) of the Act, as if the gceds were consigned at the ordinary rates on the Railway's risk, was not correct. [154 Hl The responsibility of the railway administration t~ disclose to the consignor as _to how the consignment was dealt with throughcut th2 time it was in its possession 'Or control arises t once, nder the risk-note, in either of the cases referred to therein, and is not confined to the stage of litigation. But such disclosure is necessary C'nly where a cons'gnor specifically asks the railway to. make the disclosure. If no such disclosure is asked for, the admm1strat10n need not make it before the litigation. Therefore, if the Railway did not make the disclosure, before the suit was filed, it could not be said to have committed a breach of the term of the contract [153 A-Dl The disclosure envisages a precise statement of how the consignmel)t \\vas dealt with by the railway or its servants. If the disclosure is asked for before litigation commences and is not given, or the disclosure is given but it is not considered to be sufficient by the consignor, the dispute has to be judicially decided and it is for the court to say, if a suit is filed, whether there has been a breach of the term.\n\nAt that stage, evidence has to be led by the railway in the first instance to substantiate the disclosure which might have been made before the litigation, to the consignor, or which might have been made in the written statement. When the acjministration has given its evidence in proof of the disclosure, if the plaintiff is not satisfied with the disclosure made in evidence, he is entitled to ask the court to call upon the railway to fulfil its obl'gation under the contract, and the railway should then have the opportunity of meeting the demands of the plaintiff. It is then for the court to decide whether the fuTther disclosure desired by the plaintiff sl)ould be made by the railway, and if the court decides that it should be made, the railway has to make such further disclosure as the court orders. If the railway fails to take that opportunity to safisfy the demands of the plaintiff endorsed by the court, the railway, at that stage, would be in breach of its contractual obligation of disclosure. [153 E-154 Bl The effect of the breach however, is not to bring the contract to an end and throw the respon•ibility on the railway as if the case was a simple case of respons'bility under s. 72(1). Th~ risk-note would continue to apply and the court would have to decide whether the misconduct .. can be fairly inferred from the evidence of the railway, :mth the difference ; hat, whe:e the railway has been in breach of its b.hat10n to maKe fulJ disclosure, misconduct may be more readily inferred ~?.d s. 114 of the Evidence Act more readily applied. But the condi ,10ns of the risk-note cannot be complete!~· ignored, simply because. there has been a breach of the condition of r'Omp!ete disclosure. fl54 D-Gl\n\nSurat Cotton Spinning & Weavinq Mills v. Secretary of State for India in Council fl9371 64 I.A. 176,•applied.\n\nav1L APPELLATE JURISDICTION: Civil Appeal No 536 of 1%2 . .\n\nAppeal from the judgment and decree dated March 26 1958 of the High Court at Patna in First Appeal No. 3'40 of J9Sl. '\n\nOIJON v. MAHADEOLAL (Wanchoo, J.) 1(7\n\nA Niren De, Additional Solicitor-General, N. D.\n\nKarkhanLi and B.R.G.K. Achar, for the appellant.\n\nBishan Narain. P. D. Himmatsinghka, S. Murthy and B. P.\n\nMaheshwari, for the respondent.\n\nThe judgment of the Court was delivered by B Wanchoo, J. This is an appeal on a certificate granted by the Patna High Court. The respondent sued the Union of India a~ representing G.I.P. Railway, Bombay and E.I.R. Calcutta for recovery of damages for non-delivery of 31 bales of piece goods, out of 60 bales which had been consigned to Baidyanathdham from Wadibundar. This consignment was loaded in wagon No.\n\nC 9643 on December 1, 1947. It is not in dispute that the consignment reached Mughalsarai on the morning of December 9, 1947 by 192 Dn goods train. After reaching Mughalsarai, the wagon was kept in the marshalling yard till December 12, 1947. It was sent to Baidyanadham by 214 Dn goods train from Mughalsarai at 6-40 p.m. on December 12, 1947 and eventually reached D Baidyanathdham on December 21, 1947. The respondent who was\n\nthe consignee presented the railway receipt on the same day for delivery of the consignment. Thereupon the railway delivered 29 bales only to the respondent and the remaining 31 bales were said to be missing and were never delivered. Consequently on August E 31, 1948, notice was g; ven under s. 80 of the Civil Procedure Code and this was followed by the suit out of which the present appeal has arisen on November 20, 1948. The consignment had been booked under risk note form Z which for all practical purposes is in the same terms as risk note form B. The respondent claimed damages for non-delivery on the ground that the non-delivery was due\n\n1 to the misconduct of the servants of the railway, and the claim was for a sum of Rs. 36,461112/-.\n\nThe suit was resisted by the appellant and a number of defences were taken. In the present appeal we are only concerned with two defences. It was first contended that the suit was barred by s. 77 of the Indian Railways Act, No. IX of 1890, (hereinafter G referred to as the Act). inasmuch as notice required therein was\n\nnot given by the respondent. Secondly it was contended that the consignment was sent under risk note form Z and under the terms of that risk note the railway was absolved from all responsibility for loss, destruction or deterioration of goods consigned thereunder from any cause whatsoever except upon proof of misconduct H of the railway of. its servants, and that the burden of proving such misconduct subject to certain exceptions was on the respondent and that the respondent had failed to dischare that burden. Fljl'-\n\nther in compliance with the terms of the risk note, the railway made a disclosure in the written statement as to how' the consignment was dealt with throughout the period it was in its possession or control. The .case of the railway in this connection was that there was a theft in the running train between Mughalsarai and\n\nSUPREME\n\nC01JRT\n\nREPORTS [1965] 3 s.c.R.\n\nBuxar on December 12, 1947 and that was how part of the con- A signment was lost. As the loss was not due to. any misconduct on the part of the railway or its servants and as the respm; ident had not discharged the burden which lay on him after the railway had given evidence of how the consignment had been dealt with, there was no liabilitf on the railway.\n\nOn the first point, the trial court held on the basis of certain B decisions of the Patna High Court that no notice under s. 77 was\n\nneessary in a case of non-delivery which was held to be different from loss. On the second point relating to the responsibility of the railway on the basis of risk note form Z, the trial court held that it had not been proved that the loss was due to misconduct pf the C railway or its servants. It therefore dismissed the suit.\n\nThen followed an appeal by the respondent to the High Court.\n\nThe High Court apparently upheld the finding of the trial court on the question of notice under s. 77. But on the second point the High Court was of opinion that there was a breach of the condition of disclosure provided in risk note Z under which the consignment D had been booked, and therefore the appellant could not take advantage of the risk note at all and the liability of the railway must be assessed on the footing of a simple bailee. It therefore went on to consider the liability of the railway as a simple bailee and held on the evidence that the railway did not take proper care of the wagon at Mughalsarai and that in all probability the seals and E rivets of the wagon had been allowed to be broken there and all arrangements had been completed asto how the goods would be removed from the wagon when the train would leave that station and this could only be done either by or in collusion with the servants o.f the railway at Mughalsarai. In this view of the matter the High Court allowed the appeal and decreed the suit with costs F As the judgment w; is one of reversal and. the amount involved was over rupees twenty thousand, the High Court granted a certificate. and that is how the matter has come up before us.\n\nWe shall first deal with the question of the notice. We are in this ::ase cqncerned with the Act as it was in 1947 before its amend- G ment by Central Act 56 of 1949 and Central Act No. 39 of 1961 and all references in this judgment must be read as applying to the Act as it was in 1947. Now s. 77 inter a/ia provides that a per- wn shall not be entitled to compensation for the loss, destruction or deterioration of animals or goods delivered to be carried by railway, unless his claim to compensation has been preferred in H writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway. There was a conflict between the High Courts on the question whether non-delivery of goods carried by railway amounted to loss within the meaning of s. 77. Some High Courts (including the Patna High Court) held that a case of non-delivery was distinct from a case of loss and no notiee under\n\nc1NION t'. MAHADEOLAL (Wanclwo, J.-) 149\n\nA s. 77 was necessary in the case of non-delivery. Other High Courts however took a contrary view and held that a case of non-delivery also was a case 0f loss. This conflict has now been resolved by the decision of this Court in Governor-General in Council v. Musaddilal\n\n(') and the view taken by the Patna High Court has been overruled.\n\nThis Court has held that failure to deliver goods is the consequence B of loss or destruction and the cause of action for it is not distinct from the cause of action for loss or destruction, and therefore notice under s. 77 is necessary in the case of non-delivery which arises from the loss of goods. Therefore notice under s. 77 was necessary in the present case. If is true that the respondent stated in the plaint in conformity with the view of the Patna High Court C prevalent in Bihar that no notice under s. 77 was necessary as it was a case of non-delivery. But we find in actual fact that a notice was given by the respondent to the railway on April 10, 1948 to the Chief Commercial Manager, E.l.R. in which it was stated that 60 bales of cloth were booked for the respondent but only 29 bales had been delivered and the balance of 31 bales had not been D delivered., Therefore the respondent gave notice that if the bales were not delivered to him within a fortnight, he would file a suit for the recovery of Rs. 36,461/ 12 /-, and the details asto how the amourit was arrived at were given in this notice. It is true that the notice was not specifically stated to be a notice under s. 77 of the Act but it gave all the particulars necessary in a notice under E that section. This notice or letter was sent within six months of\n\nthe booking of the consignment. A similar case came up before this Court in JetmuU Bhojraj v. The Darjeeling Himalayan Railway Co. Ltd.(') and this Court held that the letter to the railway in that case was sufficient notice for the purpose of s. 77 of the Act. Following that decision we llold that the letter in the present F case which is even more explicit is sufficient notice for the purpose of s. 77 of the Act. We may add that the learned Additional Solicitor General did not challenge this in view of the decision in .[ennui/ Bhojraj's case(').\n\nThis brings us to the second question raised in the appeal.\n\nG We have already indicated that the High Court held that as the burden of disclosure which was on the railway had not .been discharged there was a breach of one of the terms of the risk note Z and therefore the risk note did not apply at all and the responsibility of the railway had to be assessed under s. 72 (1) of the Act.\n\nThis view of the law has been contested on behalf of the appellant H and it is urged that after the risk note is executed either in form Z or in form. B, the responsibility of the railway must be judged in accordance with the risk note even if there is some breach of the condition as to disclosure. It may be mentioned that risk note form Z and risk note form B are exactly similar in their terms insofar as the responsibility of the railway is concerned for risk note\n\n(1) fl96ll .~ S.C.R. 647.\n\n(') [1963] 2 S C.R, 832,\n\n.SUPREME COUR'l'\n\nREPORTS\n\n[1965] 3 B.C.R,\n\nform B applies to individual consignment while form Z is executed A by a party who his usually to send goojs by railway in large numbers. Risk note form Z is general in its nature and applies to all c::>nsignments that a party may send after its execution. It is proved that the consignnent in this case was covered by risk note form Z. 'The main advantage that a consignor gets by sending a consignm:nt unjer fo;-m Z or form B is a specially reduced rate as compa- B red to the ordinary rate at which goods are carried by the railway anj it is because of this specially reduced rate that the burden is thrown on the consignor in a suit for damages to prove misconduct on the part of the railway or its servants in the case of loss etc. of the pods, subject to one exception.\n\nOn the other hand the arg_ument on behalf of the respondent is that the view taken by the Patna High Court is right and it is the duty of the railway administration under the risk note, as soon as there is non-delivery and a claim is made on the railway for compensation, to disclose how th~ consignment was dealt with throughc\n\nout while it was in its possession or control and that its failure to D do so results immediately in breach of the contract with the result that the responsib fay of the railway has to be judged solely on the bas:s of s. 72 (!) of the Act ignoring the risk note altogether.\n\nSection 72 (!) defines the responsibility of the railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway to E be the same as that of a bailee under ss. 152 and 161 of the Indian Contract Act, 1872, subject to other provisions of the Act. Sub-section (2) of s. 72 provides that an agreement purporting to limit the responsibility under s. 72 (!) can be made subject to two conditions, namely, (i) that it is in writing signed by or 011 behalf of the person sending or delivering to the railway adm\"lhistration the ani- P mals or goods, an'.! (ii) that it is in a form approved by the Governor-General. Sub-section (3) of s. 72 provides that nothing in the common law of England or in the Carriers Act 1865 regarding the responsibility of common carriers with respect to carriage of animals or goods shall affect the responsibility as in this section defined of the railway administration. So the responsibility of the G railway for loss etc. is the same as that of a bailee under the\n\nIdian. CJntract Act. But this responsibility can be limited as prov.1ded m s. 72 (2). For the purpose of limiting this responsibilty nsk notes form B and form Z have been approved by the Governor-General and where goods are booked under these risk notes the liability is limited in th~ manner provided thereunder. It is B therefore necessarv to set out the relevant terms of the risk note, for the decision of this case will turn on the provisions of the risk note itself.\n\nThe risk note whether it is in form B or form z provides that .vhere goods are carried at owner's risk ori specially reduced rates, the owner arees or undertakes to hold the railway administration\n\nT'NION v. MABADEOLAL ( w r:ndwo, J:) 151\n\nA \"harmless and free from all responsibility for any loss, deterioration or destruction of or damage to all or any of such consignment from any cause whatever, except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the railway administration or its servants\". Thus risk notes B and Z provide for complete immuni1y .of the railway except upon B proof of misconduct. But to this immunity there is a proviso and it is the construction of the proviso that arises in the present appeal.\n\nThe proviso is in these terms : -\n\n\"Provided that in the following cases: -\n\n(a) Non-delivery of the whole of a consignment packed in accordance with the instruction laid down in the tariff or where there are no instructions, protected otherwise than by paper or other packing readily removable by hand and fully addressed, where such nondelivery is not due to accidents to train or to fire; (b)\n\n\"The railway administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control, and if necessary, to give evidence thereof before the E consignor is called upon to prove misconduct, but, if misconduct on the part of the railway administration or its servants cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the consignor\" It is not in dispute that the present case comes under cl. (a) r of the risk note. An exactly similar provision in risk note form B\n\ncame up for consideration before the Privy Council in Surat Cotton Spinning & Weaving Mills v. Secretary of State for India in Council, (') and the law on the subject was laid down thus at pp. 181-182:\n\n\"The. first portion of the proviso provides that the Railway Administration shall be bound to disclose to the consignor 'how the consignment was dealt with throughout the time it was in its possession or control, and, if necessary to give evidence thereof, before the consignor is called upon to prove misconduct'. In their Lordships' opinion, this obligation arises at once upon the occurrence of either of cases (a) or (b), and is not confined to the stage of litigation. Clearly one object of the provision is to obviate, if possible, the necessity for litigation. On the other hand, 'the ck•sing words of the obligation clearly apply to the litigious stage. Asto the extent of the disclosure, it is confined to the. period during which the\n\n('I [W7J L.R. LX!V I.A. 176.\n\n152 Sl ; p&EME\n\nCOURT\n\nREPORTS\n\n(1965] 3 B.C.R.\n\nconsignment was within the possession or c; ontr?l of the Railway Administration; it does not relate, for mstance, u the perioJ after the goods have been theftuously removed from the premises. On the other hand, it does envisage a precise statement of how the consignment was dealt with by the Administration or its servants. The character of what is requisite may vary according to the circumstances of different cases, but, if the consignor is not satisfied that the disclosure has been adequate, the dispute must be judicially decided. As to the accuracy or truth of tire information given, if the consignor is doubtful or unsatisfied, and considers that these should be established by evidence, their Lordships are of opinion that evidence before a Court of law is contemplated, and that, as was properly done in the present suit, the Railway Administration should submit their evidence first at the trial.\n\n\"At the close of the evidence for the Administration two questions may be said to aris~. which it is important to keep distinct. The first question is not a mere question of procedure, but is whether they have discharged their obligation of disclosure, and, in regard to this, their Lordships are of opinion that the terms of the Risk Note require a step in procedure, which may be said to be unfamiliar in the practice of the Court; if the consignor is not satisfied with the disclosure made, their Lordships are clearly of opinion that is for him to say so, and. to call on the Adrninistration to fulfil their obligation under the contract, and that the Administration should then have the opportunity to meet the demands of the consignor before their case is closed; any question as to whether the consignor's demands go beyond the obligation should be then determined by the Court. If the Administration fails to take the opportunity to satisfy the demands of the consignor so far as endorsed by the Court, they will be in breach of their contractual obligation of disclosure.\n\n\"The other question which may be said to arise at this stage is whether misconduct may be fairly inferred from the evidence of the Administration; if so, the consignor is absolved from his original burden of proof. But, in this case, the decision of the Court may be given when th< evidence of both sides has been completed. It is clearly for the Administration to decide for themselves whether they have adduced all the evidence which they consider desirable in avoidance' of such fair \"inference of misconduct\". Thev will doubtless keep in mind the provisions of s. 114 of the Indian Evidence Act\".\n\nWith respect we are of opinion that 'this rxposition of the law rel11ting to risk note B applies also to risk no1e Z and we accept it\n\nl'SH,~ v. MABADEOLAL (Wanchoo, J.)\n\nA as correct. Thus the responsibility of the railway administration to disclose to the consignor how the consignment was dealt with throughout the time it was in 'ts possession or control arises at om:e under the agreement in either of the cases (a) or (b) and lS not confined to the stage of litigation. But we are not prepared to accept the contention on behalf of the .-espondent that this responsibility B to make full disclosure arises immediately the claim is made by the consignor and if the railway immediately on such claim being made does nol disclosz all the facts to the consignor, there is immediately a breach of this term of the contract contained in the risk note.\n\nIt is true that the railway is bound to disclose to the consignor how the consignment was dealt with throughout the time it was C in its possession even before any litigation starts; but we are of opinion that such disclosure is necessary only where the consignor specifically asks the railway to make the disclosure. If no such disclosure is asked for, the administration need not make it before the litigation. In the present case there is no proof that any disclosure was aske:I for in this behalf by the consignor at any D time e:fore the suit w&s Hied. Therefore if the railway did not disclose how the consignment was dealt with throughout before the suit was filed, it cannot .be said to have committed breach of this term of the contract. The disclosure envisages a precise statement of how the consignment was dealt with by the railway or its ser vants. If the disclosure is askd for before the litigation commen- E ces an:! is not givm or the disclosure is given but it is not considerej to be sufficient by the consignor, the dispute has to be judicially decidd anj it is for the court then to say if a suit is brought whether there has been a breach of this term of the contract.\n\nAfter this, comes the stage where the consigner or th<' con- F signee being dissatisfied brings a suit for compensation. At that stage evidence has to be led by the railway in the first instance to substantiate the disclosure which might have been made before the litigation to the consignor or which might have been made in the written statmcnt in reply to the suit. When the railway administration has given its evidence in proof of the disclosure and o the plaintiff is not satisfied with the cjisclosure made in the evidence, the plaintiff is entitled to ask the court to cal! upon the railway lo fulfil its obligation under the contract and the railway should then have the opportunity of meeting the demands of the plaintiff before its case is closed. Thus in addition to the evidence th<' t the railway may adduce on its own and in doing so the rail- B way has necessarily to keep in mind the provisions of s. 114 of the Indian Ev'dcnce Act, the plaintiff can and should draw •the attention of the court if he feels that full disclosure has not been made. In that case he can ask the court to require the railway to make further disclosure and should tell the court what further dis,; losure he wants. It is then for the court to decide whether the further disclosure desired by the plaintiff should be made by the railway. and if the court decides thav such further disclosure\n\n!ti!\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n(1965) 3 S .• C.R.\n\nhouid be made the railway has to make such further disclosure A as the court orders it to make on the request of the plaintiff. If the railway fails to take the opportunity so given to satisfy the demands of the plaintiff, endorsed by the court, the ra1lwav would be in breach of its contractual obligation of disclosure. It is at this stacre therefore that the railway can be truly said to be in breach of its contractual obligaLo; i of disclosure, and that breach arises because the railway falled tJ disclose matters which the court on the request of the plai:itiff asks it to disclose. The question then is what is the effect of this breach.\n\nIt is remarkable that the Privy Council did not lay down that as soon as the breach is made as above the risk note comes to an c:ij and the responsibility of the railway is that of a bailee under s. 72 (l) of the Act. In the ob3ervations already quoted, the Privy Council has gone on to say th1t after this stage is over, the question may arise whether miscJnduct may be fairly inferred from\n\nthe evidence of the raihyay. It seems to us therefore that even if there is a breach of the term as to full disclosure it does not bring D tl1e contract to an end anj throw the responsibility on the railway : s it the cas~ was a simple c1se of responsibility under s. 72(!) of\n\nthe Act; the case is thus not assimilated to a case where the goods are carried at. the ordinary ; ates at raiiway risk. The reason for this seems to be that the gcods have alreudy been carried at the reiucd rates and the consignor has taken advantage of that term E in the cntract. Therefore, even though there may be a breach of the term as to complete disclosure by the railway the consignor cannot fall back on the ordinary responsibility of the railway under s. 72 (!) of the Act as if the goods had been carried at railway's risk at ordinary rates, for he has derived the advantage of\n\nthe goods having ben carried at a specially reduced rates. The F r.sk note would in our opinion continue to apply and the court would still have to decide whether misconduct can be fairly i,1ferred from the evidence of the railway, with this difference that where the rnilway has been in breach of its obligation to make full disclosure misconduct may be more readily inferred and s. 114 of the Indian Evidence Act more readily applied. But we do not think that the conditions in the risk n Jte can be completely ignored simply because there has been a breach of the condition of complete disclosure. 1 he view of the Patna High Court that as soon as there is breach of the condition relating to complete disclosure the risk 1nte can be completely ignored and the responsibility of the railway judged purely on the basis of s. 72 (I) as if the goods were H -.:arried at the ordinary rates on railway's risk cannot therefore be .iccepteJ as correct.\n\nWe may point out that in Surat Cotton Spinning and Weaving Hills Limited's case, (') the plaintiffs wanted the guard of the train u b~ exammed and he was undoubtedly a material witness. EYcn\n\n(') [1U;7] L.R. LXIY LA. liG.\n\nl:N!Oli v. MAHADEOLAL ( W a.itr4oo, J. )' 155\n\nA so the witness was not examined by the railway. Finally therefore the Privy Louncil allowed lhe appeal with these observations at p. 189:-\n\n\"While their Lordships would be inclined to hold that the respondent, by his failure to submit the evidence of Rohead, was in breach of his contractu,, l obligation to give the evidence necessary for disclosure of how the consignment was dealt with, they are clearly oi opinion thal the failure to submit the evidence of Rohead, in the circumstances of this case, entitles the court to presume, in terms of s. 114 (g) of the Evidence Act, that \"Rohead's c evidence, if produced, would be unfavourable to the respondent, and that, in consequence, misconduct by complicity in the theft of some servant, or servants of the resp;:indent may be fairly inferred from the respondent's evidence\".\n\nThese observations show that even though there may be a II breach of the obligation lo give full disclosure that does not mean that the risk note form Z or form B can. be ignored and the responsibility of the railway fixed on the basis of s. 72 (!) as a simple bailee. If that was the effect of the breach, the Privy Council woLld not have come to the conclusion after applying s. 114 (g) of the Evidence Act in the case of Rohead that misconduct by complicity lil in the theft of some servant or servants of the railway may be fairly inferred from the railway's evidence. The appeal was allow ed by the Privy Council after coming to the conclusion that mis-·\n\nconduct by the servant or srvants of the railway might be fairly inferre:J from the evidence including the presumption under 114 (g) of the Evidence Act. It seems to us clear therefore that even 'F if there is a breach of the obligation to make full disclosure in the sense that the railway does not produce the evidence desired by the plaintiff in the suit even though the request d the plaintiff is endorsed by the court, the effect of such breach is not that the risk note is completely out of the way, the reason for this as we have already indicated being that the c; Jnsignor has already taken ad- G vantage of the reduced rates and therefore cannot be allowed to ignore the risk note altogether. But where there is a breach by the railway of _the. obligati_on to make full disclosure the court may more read!ly mfer nmconduct on the part of the railway or its servants or more read_ily presume under s. 114 (g) of the Evidence Act against the railway. This in our opinion is the effect of the II decision of the Privy Council in Surat Cotton Spinning and Weaving Mills Limited's case('). As we have already said we <ore in respectful agreement with the law as laid down there.\n\nSo far as the present appeal is concerned, there was no demand by the c.:insign::ir for disclosure before the suit. Even after the suit was fileJ there was no statement by the respondent at any\n\n(1) [lU~7j L.R. , J~ I.A, 17fi.\n\ni56\n\nSUPREME\n\nCOURT\n\nREPORTS [1965] 3 s.c.R.\n\nstage that the disclosure made by the appellant in the evidence A was in any way inadequate. The respondent never told the court after the evidence of the railway was over that he was not satisfied with the disclosure and that the railway be asked to make further disclosure by producing such further evidence as the r.espondent wanted. In these circumstances it cannot be said in the present case that there was any breach by the railway of its res- B ponsibility to make full disclosure. In the circumstances we are of opinion that the risk note would still apply and the court would have to decide whether misconduct on the part of the railway can be fairly inferred from the evidence produced by it. If the court cannot fairly infer misconduct from the evidence adduced by the railway, the burden will be on the respondent to prove misconduct.\n\nC That burden, if it arises, has clearly not. been discharged for the respondent led no evidence on his behalf to discharge the burden.\n\nWe therefore turn to the evidence to see whether from the evidence produced by the railway a fair inference of misconduct of the railway or its servants can be drawn on the facts of this case.\n\nIt is not in dispute in this case that the wagon containing the D consignment arrived intact at Mughalsarai on December 9, 1947.\n\nBesides there is evidence of Damodar Prasad Sharma, Assistant Trains Clerk, Mughalsarai, P.W. 14, who had the duty to receive trains at the relevant time that 192 Dn. goods train was received by him on line No. 4 and that there were two watchmen on duty on that line for examining the goods train and they kept notes of the E same. He also produced the entry relating to the arrival of the train and there is nothing in the entry to show anything untoward with tfiis wagon when the train arrived at Mughalsarai. His evidence also shows that the train was sent to the marshalling yard on December 11, 1947. Finally there is the evidence of Chatterji F (P.W. 8) who is also an Assistant Trains Clerk. It was his duty to make notes with respect to goods trains which left Mughalsarai.\n\nHe stated that this wagon was sent by train No. 214 on December 12, 1947 in the evening. He also stated that the wagon wa~ in good condition and prQc!uced the entry relating to this wagon. It appears however from his evidence that rivets and seals are examined by G the watch and ward staff and they keep record of it. Apparently therefore he did not actually inspect the wagon before it left though he says that it was in good condition. The relevance of his evidence however is only this that in his register showing the despatch of trains there is no entry to the effect that there was anything wrong with this wagon when it was despatched.\n\nThe most important evidence however is of the guard of the train, Ram Prasad Ram (P.W. 2). He stated that before the train started from Mughalsarai he patrolled both sides of it and the place from where the train started was well Jighted and watch and ward staff also patrolled the area. He also stated that the rivets and seals of all the wagons in the train we e checked at Mughalsarai and there was apparently nothing wrong with them. Now if\n\nUNION \"· ll!AllADEOLAL (Wanrhoo, J .) 161' r A the evidence of the guard is believed it would show that the wagon containing the consignment was intact at Mughalsarai upto the time 214 goods train including this wagon left Mughalsarai. If so there would be no reason to hold that anything was done to the wagon before the train left Mughalsarai. It may be mentioned that the trial court accepted the evidence of the guard while the High B Court was 'not prepared to believe it. On a careful consideration of the evidence of the guard we see no reason why his evidence should not be believed. It is obviously the duty of the guard to see that the train was all right, when he took charge of it. It appears that in discharge of his duty the guard patrolled the train on both sides and looked at rivets and seals to see that they were intact. It O is, however, urged that the guard's evidence does not show that the seals which he found intact were the original seals of Wadibundar and the possibility is not ruled out that the original seals might have been tampered with and new seals put in while the train was in the marshalling yard at Mughalsarai for two days, as the evidence of the watch and ward staff had not been produced. It D would perhaps have been better if the evidence of the watch and ward staff had been produced by the railway; but if the evidence of the guard is believed that the seals and rivets were intact when the train left Mughalsarai, the evidence of the watch 'and ward staff is not necessary. It is true that the guard does not say that the seals were the original seals of Wadibundar but it appears from the evi- E dence of Jagannath Prasad (P.W. 9) who was the Assistant Station Master at Dildarnagar that he found when the train arrived there that the northern ftapdoors of the wagon were open while southern flapdoors were intact with the original seals. This evidence suggests that the original seals could not have been tampered with when the train left Mughalsarai and that the guard's evidence that seals and 1 rivets were intact shows that nothing had happened to the wagon\n\nwhile it was at Mughalsarai. Further it is also in evidence that there is ample light in the marshalling yard at Mughalsarai and that watch and ward staff is posted there as well. So the chances of tampering with the seals and rivets in the marshalling yard in the circumstances are remote. As such the evidence of the guard that G the seals and rivets were intact when he left with the train on the evening of December 12, would apparently exclude the possibility that there was any tampering with the wagon before it left Mughalsarai. It is true that on the last day when the evidence for the railway was recorded and the guard had been recalled for further crossexamina tion it was suggested to him that the railway servants at B Mughalsarai had removed the bales and were responsible for the \\ theft. He however denied that. But it is remarkable that if the respondent was dissatisfied with the evidence of the guard which was to the effect that the wagon was all right when he left Mughalsarai with the train on December 12, it did not ask the court to order the railway to produce the evidence of the watch and ward staff with respect to this wagon while it was in the marshalling yard at Mughalsarai. The respondent could ask for such disclosure. If the court\n\nL/B(D)2SC:I-12\n\nSUPREME\n\nCOURT\n\nREJ:'ORT8\n\n[1965] 3 S.C.R. • had accepted the request and the railway had failed to produce the A evidence of the watch and ward stall it may have been possible to use s. 114 of the Evidence Act and hold that the watch and ward staff having not been produced their evidence, if produced, would have gone against the railway. But in the absence of any demand by the respondent for the production of the watch and ward staff which he could ask for, we see no reason why the statement of B the guard to the effect that seals and rivets of the wagon were intact when he left Mughalsarai with the train should not be accepted. In the absence of any demand by the respondent for the production of watch and ward staff his mere suggestion that the railway servants at Mughalsarai might have committed the theft cannot be accepted.\n\nC There is the further evidence of the guard as to what happened between Mughalsarai and Buxar. It appears between these two stations the train stops only at Dildarnagar. The evidence of the guard however is that the train suddenly st<:>pped between the warner and home signals before it reached Dildarnagar. He therefore D got down to find out what the trouble was. He found that the hosepipe between two wagons had got disconnected and this resulted in the stoppage of the train. The evidence further is that the hosepipe was intact \\\\lhen the train started from Mughalsarai. He made . a note of this in his rough memo book which was produced. It is noted by him that the northern flapdoor of this wagon was open.\n\nE He reconnected the hosepipe and went up to Dildarnagar. 1here he reported the matter to the station staff. His further evidence is that there were three escorts with the train and that they were guarding the train when the train was standing between the warner and the home signals befcre it reached Dildarn2gar. Nothing untoward was reported to him by these escorts. It was at this stop F between the two signals that the guard noticed that the rivets\n\nand seals of this wagon on one.side had been broken. The case of the railway is that there was theft in the running train between Mughalsarai and Buxar and that is how part of the consignment was lost. The evidence of the guard does suggest that something happened 'between Mughalsarai and Dildarnagar and then bet- G ween Dildarnagar and Buxar. In addition to this the evidence of the station staff at Dildarnagar is that the flapdoors of this wagon were found open when the train arrived at Dildarnagar. The contents were not checked at Dildarnagar as there was no arrangement for checking at that station ... The wagon was resealed at Dildarnagar, and the fact was noted in the station master's diary. It may H be mentioned that the evidence of the station staff was that the wagon was resealed though the guard says that it was rivetted also at Dildarnagar. The entry in the guard's rough memo. however is only that lhe wagon was resealed. The guard certainly says that it was rivetted also at Dildarnagar but that is not supported by the station staff and the entry in the guard's rough memo. It seems that the statement of the guard may be due to some error on his\n\nUNION v. MAIUDEOI.AL (Wanohoo, J.) 159\n\nA part. That may also explain why, when the train arrived at Buxar. the flapdoor again was found open, for it had not been rivitted at DJdarnagar. Then the evidence of the Buxar station staff is that the northern flapdoors of this wagon were open when the train arrived at Buxar. It was then resealed and rivetted and was detached for checking: The checking took place on December 14th at Buxar.\n\nB It was then found that one side had the original seals of Wadibundar while the other side had the seals of Buxar. On checking the wagon, 27 b3les were found intact, covering of one bale was torn an:! one bale was found loose and slack. This evidence asto what happened between Mughalsarai and Buxar thus makes it probable that there was theft in the running train between Mughalsarai and C Buxar and that may account for the loss of part of the consignment.\n\nIt is however contended on behalf of the respondent that no evidence W3S produced from Mughalsarai asto what happened while the wagon was in the marshalling yard and that the seal D bo-:ik which is kept at every railway station \"'°ntaining entries of re-sealing when a wagon is resealed was not produced from Mughalsarai and an adverse inference should be drawn from this non\n\nproducion. We are however of opinion that the evidence. of the guard to the effect that the seals were intact when he left Mughalsarai with the train is sufficient to show that the wagon was in E tact with the original seals when it left Mughalsarai and therefore it is not possible to draw any adverse inference from the nonproduction of the watch and ward staff or the seal booll: of Mug halsarai in the circumstances of this case. It would have been a different matter if the respondent had asked for the production of the seal book as well as the evidence of the watch and ward 1 staff. But the respondent contented itself merely with the suggestion that a theft might have taken place at Mughalsarai which was denied by the guard and did not ask the court to order the railway to produce this evidence. In these cir.; umstances in the face of the evidence of the guard and the fact that one seal on the southern side of the door was of the original station, we do not think that it Q is possible to draw an adverse inference against the railway on the ground that the .evidence of the watch and ward staff and the seal book at Mughalsarai were not produced. The seal book would have been of value only if the wagon had been resealed at Mugbalsarai but there is in our opinion no reason to think that the wagon had been resealed at Mughalsarai after the evidence of the guard that H he found the seals and rivets intact when he left Mughalsarai with the train. On a careful consideration of the evidence therefore we are of opinion that a fair inference cannot be drawn from the evidence of the railway that there was misconduct by the railway or its servants at Mughalsarai during the time when the wagon was there. If the evidence of the guard is accepted, and we do accept it. there can be no doubt that the loss of the goods took place because of theft in the running train between Mughalsarai and\n\nSUJ.>REME\n\nCOURT\n\nRJ!.PORT:S [1~65.J 3 s •. c.1<.\n\nBuxar. There is no evidence on behalf of the respondent to prove A mi.sconduct and_.as miscenduct cannot airly be infrred from. the evidence produced on behalf of the railway, the smt must fail.\n\nWe therefore allow the appeal, set aside the judgment and decree of the High Court and restore that of the Additional Subordinate Judge. In the circumstances of this case we order par- B ties to bear their own costs throughout.\n\nAppeal allowed.", "total_entities": 103, "entities": [{"text": "UNION OF INDIA", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "MAHADEOLAL PRABHUDAYAL", "label": "RESPONDENT", "start_char": 19, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "MAHADEOLAL PRABHUDAYAL", "offset_not_found": false}}, {"text": "February 23, 1965", "label": "DATE", "start_char": 42, "end_char": 59, "source": "ner", "metadata": {"in_sentence": "UNION OF INDIA v.\n\nMAHADEOLAL PRABHUDAYAL February 23, 1965. ["}}, {"text": "K. N. WANCHOO, J.", "label": "JUDGE", "start_char": 62, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO*", "offset_not_found": false}}, {"text": "R. MuDHOLKAR ANDS. M. SIKRI, JJ.", "label": "JUDGE", "start_char": 80, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Indian Railways Act", "label": "STATUTE", "start_char": 114, "end_char": 133, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 72 and 77", "label": "PROVISION", "start_char": 148, "end_char": 161, "source": "regex", "metadata": {"linked_statute_text": "Indian Railways Act", "statute": "Indian Railways Act"}}, {"text": "s. 77", "label": "PROVISION", "start_char": 249, "end_char": 254, "source": "regex", "metadata": {"linked_statute_text": "Indian Railways Act", "statute": "Indian Railways Act"}}, {"text": "s. 80", "label": "PROVISION", "start_char": 1201, "end_char": 1206, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code, 1908", "label": "STATUTE", "start_char": 1214, "end_char": 1240, "source": "regex", "metadata": {}}, {"text": "Supreme Court", "label": "COURT", "start_char": 2354, "end_char": 2367, "source": "ner", "metadata": {"in_sentence": "In the appeal to the Supreme Court it was contended that, (i) the suit was barred by s. 77 of the Indian Railways Act, 1890, inasmuch as notice required therein was not given by the respondent, and (ii) under the terms of the risk-note the Railway was absolved from all responsibility for the loss of the goods consigned thereunder, from any cause whatsoever."}}, {"text": "s. 77", "label": "PROVISION", "start_char": 2418, "end_char": 2423, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Railways Act, 1890", "label": "STATUTE", "start_char": 2431, "end_char": 2456, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 77", "label": "PROVISION", "start_char": 2914, "end_char": 2919, "source": "regex", "metadata": {"linked_statute_text": "the Indian Railways Act, 1890", "statute": "the Indian Railways Act, 1890"}}, {"text": "s. 72(1)", "label": "PROVISION", "start_char": 3776, "end_char": 3784, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 72(1)", "label": "PROVISION", "start_char": 6196, "end_char": 6204, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 114", "label": "PROVISION", "start_char": 6512, "end_char": 6518, "source": "regex", "metadata": {"statute": null}}, {"text": "A Niren De", "label": "OTHER_PERSON", "start_char": 7053, "end_char": 7063, "source": "ner", "metadata": {"in_sentence": "OIJON v. MAHADEOLAL (Wanchoo, J.) 1(7\n\nA Niren De, Additional Solicitor-General, N. D.\n\nKarkhanLi and B.R.G.K. Achar, for the appellant."}}, {"text": "N. D.\n\nKarkhanLi", "label": "OTHER_PERSON", "start_char": 7095, "end_char": 7111, "source": "ner", "metadata": {"in_sentence": "OIJON v. MAHADEOLAL (Wanchoo, J.) 1(7\n\nA Niren De, Additional Solicitor-General, N. D.\n\nKarkhanLi and B.R.G.K. Achar, for the appellant."}}, {"text": "B.R.G.K. Achar", "label": "LAWYER", "start_char": 7116, "end_char": 7130, "source": "ner", "metadata": {"in_sentence": "OIJON v. MAHADEOLAL (Wanchoo, J.) 1(7\n\nA Niren De, Additional Solicitor-General, N. D.\n\nKarkhanLi and B.R.G.K. Achar, for the appellant."}}, {"text": "Bishan Narain", "label": "LAWYER", "start_char": 7152, "end_char": 7165, "source": "ner", "metadata": {"in_sentence": "Bishan Narain."}}, {"text": "P. D. Himmatsinghka", "label": "LAWYER", "start_char": 7167, "end_char": 7186, "source": "ner", "metadata": {"in_sentence": "P. D. Himmatsinghka, S. Murthy and B. P.\n\nMaheshwari, for the respondent."}}, {"text": "S. Murthy", "label": "LAWYER", "start_char": 7188, "end_char": 7197, "source": "ner", "metadata": {"in_sentence": "P. D. Himmatsinghka, S. Murthy and B. P.\n\nMaheshwari, for the respondent."}}, {"text": "B. P.\n\nMaheshwari", "label": "LAWYER", "start_char": 7202, "end_char": 7219, "source": "ner", "metadata": {"in_sentence": "P. D. Himmatsinghka, S. Murthy and B. P.\n\nMaheshwari, for the respondent."}}, {"text": "B Wanchoo", "label": "JUDGE", "start_char": 7285, "end_char": 7294, "source": "ner", "metadata": {"in_sentence": "The judgment of the Court was delivered by B Wanchoo, J. This is an appeal on a certificate granted by the Patna High Court.", "canonical_name": "B Wanchoo"}}, {"text": "Patna High Court", "label": "COURT", "start_char": 7349, "end_char": 7365, "source": "ner", "metadata": {"in_sentence": "The judgment of the Court was delivered by B Wanchoo, J. This is an appeal on a certificate granted by the Patna High Court."}}, {"text": "Union of India", "label": "RESPONDENT", "start_char": 7391, "end_char": 7405, "source": "ner", "metadata": {"in_sentence": "The respondent sued the Union of India a~ representing G.I.P. Railway, Bombay and E.I.R. Calcutta for recovery of damages for non-delivery of 31 bales of piece goods, out of 60 bales which had been consigned to Baidyanathdham from Wadibundar.", "canonical_name": "UNION OF INDIA"}}, {"text": "Bombay", "label": "OTHER_PERSON", "start_char": 7438, "end_char": 7444, "source": "ner", "metadata": {"in_sentence": "The respondent sued the Union of India a~ representing G.I.P. Railway, Bombay and E.I.R. Calcutta for recovery of damages for non-delivery of 31 bales of piece goods, out of 60 bales which had been consigned to Baidyanathdham from Wadibundar."}}, {"text": "Wadibundar", "label": "GPE", "start_char": 7598, "end_char": 7608, "source": "ner", "metadata": {"in_sentence": "The respondent sued the Union of India a~ representing G.I.P. Railway, Bombay and E.I.R. Calcutta for recovery of damages for non-delivery of 31 bales of piece goods, out of 60 bales which had been consigned to Baidyanathdham from Wadibundar."}}, {"text": "December 1, 1947", "label": "DATE", "start_char": 7662, "end_char": 7678, "source": "ner", "metadata": {"in_sentence": "C 9643 on December 1, 1947."}}, {"text": "Mughalsarai", "label": "GPE", "start_char": 7730, "end_char": 7741, "source": "ner", "metadata": {"in_sentence": "It is not in dispute that the consignment reached Mughalsarai on the morning of December 9, 1947 by 192 Dn goods train."}}, {"text": "Baidyanadham", "label": "GPE", "start_char": 7910, "end_char": 7922, "source": "ner", "metadata": {"in_sentence": "It was sent to Baidyanadham by 214 Dn goods train from Mughalsarai at 6-40 p.m. on December 12, 1947 and eventually reached D Baidyanathdham on December 21, 1947."}}, {"text": "December 12, 1947", "label": "DATE", "start_char": 7978, "end_char": 7995, "source": "ner", "metadata": {"in_sentence": "It was sent to Baidyanadham by 214 Dn goods train from Mughalsarai at 6-40 p.m. on December 12, 1947 and eventually reached D Baidyanathdham on December 21, 1947."}}, {"text": "D Baidyanathdham", "label": "GPE", "start_char": 8019, "end_char": 8035, "source": "ner", "metadata": {"in_sentence": "It was sent to Baidyanadham by 214 Dn goods train from Mughalsarai at 6-40 p.m. on December 12, 1947 and eventually reached D Baidyanathdham on December 21, 1947."}}, {"text": "December 21, 1947", "label": "DATE", "start_char": 8039, "end_char": 8056, "source": "ner", "metadata": {"in_sentence": "It was sent to Baidyanadham by 214 Dn goods train from Mughalsarai at 6-40 p.m. on December 12, 1947 and eventually reached D Baidyanathdham on December 21, 1947."}}, {"text": "August E 31, 1948", "label": "DATE", "start_char": 8332, "end_char": 8349, "source": "ner", "metadata": {"in_sentence": "Consequently on August E 31, 1948, notice was g; ven under s. 80 of the Civil Procedure Code and this was followed by the suit out of which the present appeal has arisen on November 20, 1948."}}, {"text": "s. 80", "label": "PROVISION", "start_char": 8375, "end_char": 8380, "source": "regex", "metadata": {"statute": null}}, {"text": "November 20, 1948", "label": "DATE", "start_char": 8489, "end_char": 8506, "source": "ner", "metadata": {"in_sentence": "Consequently on August E 31, 1948, notice was g; ven under s. 80 of the Civil Procedure Code and this was followed by the suit out of which the present appeal has arisen on November 20, 1948."}}, {"text": "s. 77", "label": "PROVISION", "start_char": 9022, "end_char": 9027, "source": "regex", "metadata": {"statute": null}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 9042, "end_char": 9054, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 77", "label": "PROVISION", "start_char": 10526, "end_char": 10531, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 77", "label": "PROVISION", "start_char": 11025, "end_char": 11030, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 77", "label": "PROVISION", "start_char": 12457, "end_char": 12462, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 77", "label": "PROVISION", "start_char": 13000, "end_char": 13005, "source": "regex", "metadata": {"statute": null}}, {"text": "Wanclwo", "label": "JUDGE", "start_char": 13167, "end_char": 13174, "source": "ner", "metadata": {"in_sentence": "MAHADEOLAL (Wanclwo, J.-) 149\n\nA s. 77 was necessary in the case of non-delivery."}}, {"text": "s. 77", "label": "PROVISION", "start_char": 13188, "end_char": 13193, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 77", "label": "PROVISION", "start_char": 13744, "end_char": 13749, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 77", "label": "PROVISION", "start_char": 13851, "end_char": 13856, "source": "regex", "metadata": {"statute": null}}, {"text": "Bihar", "label": "GPE", "start_char": 14011, "end_char": 14016, "source": "ner", "metadata": {"in_sentence": "If is true that the respondent stated in the plaint in conformity with the view of the Patna High Court C prevalent in Bihar that no notice under s. 77 was necessary as it was a case of non-delivery."}}, {"text": "s. 77", "label": "PROVISION", "start_char": 14038, "end_char": 14043, "source": "regex", "metadata": {"statute": null}}, {"text": "April 10, 1948", "label": "DATE", "start_char": 14179, "end_char": 14193, "source": "ner", "metadata": {"in_sentence": "But we find in actual fact that a notice was given by the respondent to the railway on April 10, 1948 to the Chief Commercial Manager, E.l."}}, {"text": "s. 77", "label": "PROVISION", "start_char": 14719, "end_char": 14724, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 77", "label": "PROVISION", "start_char": 15109, "end_char": 15114, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 77", "label": "PROVISION", "start_char": 15266, "end_char": 15271, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhojraj", "label": "OTHER_PERSON", "start_char": 15400, "end_char": 15407, "source": "ner", "metadata": {"in_sentence": "We may add that the learned Additional Solicitor General did not challenge this in view of the decision in .[ennui/ Bhojraj's case(')."}}, {"text": "s. 72", "label": "PROVISION", "start_char": 15787, "end_char": 15792, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 72", "label": "PROVISION", "start_char": 17702, "end_char": 17707, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 72", "label": "PROVISION", "start_char": 17759, "end_char": 17769, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 152 and 161", "label": "PROVISION", "start_char": 17994, "end_char": 18009, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Contract Act, 1872", "label": "STATUTE", "start_char": 18017, "end_char": 18042, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 72", "label": "PROVISION", "start_char": 18103, "end_char": 18108, "source": "regex", "metadata": {"linked_statute_text": "the Indian Contract Act, 1872", "statute": "the Indian Contract Act, 1872"}}, {"text": "s. 72", "label": "PROVISION", "start_char": 18181, "end_char": 18186, "source": "regex", "metadata": {"linked_statute_text": "the Indian Contract Act, 1872", "statute": "the Indian Contract Act, 1872"}}, {"text": "s. 72", "label": "PROVISION", "start_char": 18466, "end_char": 18471, "source": "regex", "metadata": {"linked_statute_text": "the Indian Contract Act, 1872", "statute": "the Indian Contract Act, 1872"}}, {"text": "England or in the Carriers Act 1865", "label": "STATUTE", "start_char": 18515, "end_char": 18550, "source": "regex", "metadata": {}}, {"text": "s. 72", "label": "PROVISION", "start_char": 18905, "end_char": 18910, "source": "regex", "metadata": {"linked_statute_text": "England or in the Carriers Act 1865", "statute": "England or in the Carriers Act 1865"}}, {"text": "s. 114", "label": "PROVISION", "start_char": 24657, "end_char": 24663, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 24671, "end_char": 24690, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 24851, "end_char": 24858, "source": "ner", "metadata": {"in_sentence": "With respect we are of opinion that 'this rxposition of the law rel11ting to risk note B applies also to risk no1e Z and we accept it\n\nl'SH,~ v. MABADEOLAL (Wanchoo, J.)\n\nA as correct.", "canonical_name": "B Wanchoo"}}, {"text": "s. 114", "label": "PROVISION", "start_char": 27654, "end_char": 27660, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 72", "label": "PROVISION", "start_char": 29020, "end_char": 29025, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 72(!)", "label": "PROVISION", "start_char": 29482, "end_char": 29490, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 72", "label": "PROVISION", "start_char": 29959, "end_char": 29964, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 114", "label": "PROVISION", "start_char": 30468, "end_char": 30474, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 30482, "end_char": 30501, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 72", "label": "PROVISION", "start_char": 30911, "end_char": 30916, "source": "regex", "metadata": {"statute": null}}, {"text": "Surat Cotton Spinning and Weaving Hills Limited", "label": "ORG", "start_char": 31062, "end_char": 31109, "source": "ner", "metadata": {"in_sentence": "We may point out that in Surat Cotton Spinning and Weaving Hills Limited's case, (') the plaintiffs wanted the guard of the train u b~ exammed and he was undoubtedly a material witness."}}, {"text": "Rohead", "label": "OTHER_PERSON", "start_char": 31770, "end_char": 31776, "source": "ner", "metadata": {"in_sentence": "Finally therefore the Privy Louncil allowed lhe appeal with these observations at p. 189:-\n\n\"While their Lordships would be inclined to hold that the respondent, by his failure to submit the evidence of Rohead, was in breach of his contractu,, l obligation to give the evidence necessary for disclosure of how the consignment was dealt with, they are clearly oi opinion thal the failure to submit the evidence of Rohead, in the circumstances of this case, entitles the court to presume, in terms of s. 114 (g) of the Evidence Act, that \"Rohead's c evidence, if produced, would be unfavourable to the respondent, and that, in consequence, misconduct by complicity in the theft of some servant, or servants of the resp;:indent may be fairly inferred from the respondent's evidence\"."}}, {"text": "s. 114", "label": "PROVISION", "start_char": 31856, "end_char": 31862, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 72", "label": "PROVISION", "start_char": 32378, "end_char": 32383, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 114", "label": "PROVISION", "start_char": 32517, "end_char": 32523, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 114", "label": "PROVISION", "start_char": 33707, "end_char": 33713, "source": "regex", "metadata": {"statute": null}}, {"text": "Surat Cotton Spinning and Weaving Mills Limited", "label": "ORG", "start_char": 33836, "end_char": 33883, "source": "ner", "metadata": {"in_sentence": "This in our opinion is the effect of the II decision of the Privy Council in Surat Cotton Spinning and Weaving Mills Limited's case(')."}}, {"text": "December 9, 1947", "label": "DATE", "start_char": 35550, "end_char": 35566, "source": "ner", "metadata": {"in_sentence": "It is not in dispute in this case that the wagon containing the D consignment arrived intact at Mughalsarai on December 9, 1947."}}, {"text": "Damodar Prasad Sharma", "label": "WITNESS", "start_char": 35598, "end_char": 35619, "source": "ner", "metadata": {"in_sentence": "Besides there is evidence of Damodar Prasad Sharma, Assistant Trains Clerk, Mughalsarai, P.W. 14, who had the duty to receive trains at the relevant time that 192 Dn."}}, {"text": "December 11, 1947", "label": "DATE", "start_char": 36156, "end_char": 36173, "source": "ner", "metadata": {"in_sentence": "His evidence also shows that the train was sent to the marshalling yard on December 11, 1947."}}, {"text": "Chatterji F", "label": "WITNESS", "start_char": 36208, "end_char": 36219, "source": "ner", "metadata": {"in_sentence": "Finally there is the evidence of Chatterji F (P.W. 8) who is also an Assistant Trains Clerk."}}, {"text": "Ram Prasad Ram", "label": "WITNESS", "start_char": 37063, "end_char": 37077, "source": "ner", "metadata": {"in_sentence": "The most important evidence however is of the guard of the train, Ram Prasad Ram (P.W. 2)."}}, {"text": "Wanrhoo", "label": "JUDGE", "start_char": 37467, "end_char": 37474, "source": "ner", "metadata": {"in_sentence": "Now if\n\nUNION \"· ll!AllADEOLAL (Wanrhoo, J .)", "canonical_name": "B Wanchoo"}}, {"text": "Wadibundar", "label": "OTHER_PERSON", "start_char": 38411, "end_char": 38421, "source": "ner", "metadata": {"in_sentence": "It O is, however, urged that the guard's evidence does not show that the seals which he found intact were the original seals of Wadibundar and the possibility is not ruled out that the original seals might have been tampered with and new seals put in while the train was in the marshalling yard at Mughalsarai for two days, as the evidence of the watch and ward staff had not been produced."}}, {"text": "Jagannath Prasad", "label": "WITNESS", "start_char": 39096, "end_char": 39112, "source": "ner", "metadata": {"in_sentence": "It is true that the guard does not say that the seals were the original seals of Wadibundar but it appears from the evi- E dence of Jagannath Prasad (P.W. 9) who was the Assistant Station Master at Dildarnagar that he found when the train arrived there that the northern ftapdoors of the wagon were open while southern flapdoors were intact with the original seals."}}, {"text": "Dildarnagar", "label": "GPE", "start_char": 39162, "end_char": 39173, "source": "ner", "metadata": {"in_sentence": "It is true that the guard does not say that the seals were the original seals of Wadibundar but it appears from the evi- E dence of Jagannath Prasad (P.W. 9) who was the Assistant Station Master at Dildarnagar that he found when the train arrived there that the northern ftapdoors of the wagon were open while southern flapdoors were intact with the original seals."}}, {"text": "B Mughalsarai", "label": "GPE", "start_char": 40286, "end_char": 40299, "source": "ner", "metadata": {"in_sentence": "It is true that on the last day when the evidence for the railway was recorded and the guard had been recalled for further crossexamina tion it was suggested to him that the railway servants at B Mughalsarai had removed the bales and were responsible for the \\ theft."}}, {"text": "s. 114", "label": "PROVISION", "start_char": 41023, "end_char": 41029, "source": "regex", "metadata": {"statute": null}}, {"text": "Mughalsarai", "label": "OTHER_PERSON", "start_char": 41753, "end_char": 41764, "source": "ner", "metadata": {"in_sentence": "C There is the further evidence of the guard as to what happened between Mughalsarai and Buxar."}}, {"text": "Buxar", "label": "OTHER_PERSON", "start_char": 41769, "end_char": 41774, "source": "ner", "metadata": {"in_sentence": "C There is the further evidence of the guard as to what happened between Mughalsarai and Buxar.", "canonical_name": "C Buxar"}}, {"text": "Dildarn2gar", "label": "GPE", "start_char": 42699, "end_char": 42710, "source": "ner", "metadata": {"in_sentence": "His further evidence is that there were three escorts with the train and that they were guarding the train when the train was standing between the warner and the home signals befcre it reached Dildarn2gar."}}, {"text": "Buxar", "label": "GPE", "start_char": 42999, "end_char": 43004, "source": "ner", "metadata": {"in_sentence": "The case of the railway is that there was theft in the running train between Mughalsarai and Buxar and that is how part of the consignment was lost."}}, {"text": "Dildarnagar", "label": "OTHER_PERSON", "start_char": 43143, "end_char": 43154, "source": "ner", "metadata": {"in_sentence": "The evidence of the guard does suggest that something happened 'between Mughalsarai and Dildarnagar and then bet- G ween Dildarnagar and Buxar."}}, {"text": "G ween Dildarnagar", "label": "OTHER_PERSON", "start_char": 43169, "end_char": 43187, "source": "ner", "metadata": {"in_sentence": "The evidence of the guard does suggest that something happened 'between Mughalsarai and Dildarnagar and then bet- G ween Dildarnagar and Buxar."}}, {"text": "DJdarnagar", "label": "GPE", "start_char": 44200, "end_char": 44210, "source": "ner", "metadata": {"in_sentence": "the flapdoor again was found open, for it had not been rivitted at DJdarnagar."}}, {"text": "December 14th at", "label": "DATE", "start_char": 44437, "end_char": 44453, "source": "ner", "metadata": {"in_sentence": "It was then resealed and rivetted and was detached for checking: The checking took place on December 14th at Buxar."}}, {"text": "C Buxar", "label": "OTHER_PERSON", "start_char": 44852, "end_char": 44859, "source": "ner", "metadata": {"in_sentence": "This evidence asto what happened between Mughalsarai and Buxar thus makes it probable that there was theft in the running train between Mughalsarai and C Buxar and that may account for the loss of part of the consignment.", "canonical_name": "C Buxar"}}, {"text": "Mugbalsarai", "label": "GPE", "start_char": 46541, "end_char": 46552, "source": "ner", "metadata": {"in_sentence": "The seal book would have been of value only if the wagon had been resealed at Mugbalsarai but there is in our opinion no reason to think that the wagon had been resealed at Mughalsarai after the evidence of the guard that H he found the seals and rivets intact when he left Mughalsarai with the train."}}]}
{"document_id": "1965_3_161_167_EN", "year": 1965, "text": "STATE OF UTTAR PRADESH\n\nRAMAGYA SHARMA VAIDYA\n\nFebruary 24, 1965\n\n[K. N. W ANCHOO, J. R. MUDHOLKAR AND S. M. SJKRI, JJ.]\n\nIron and Steel (Control) Order, 1956, ct 7--0btaining permit to pu1chase iron goods for specified purpose-Not using it for anu purpose, whether constitwtes contravention cl. 7.\n\nThe respondent obtained permits under the Iron and Steel (Control) Order, 1956 on the representation that he wanted to purchase iron goods for the purpose of bwilding a temple and a dharamshala. '.fhe permits were obtained from .the authr.ities of Ditrict Deoria m 11.P. At the back of the permit a cond1t1on W'as prmted that \"the materials required against the permit will be used only for the purpose for which it was asked for and has been given\". The respondent was tried for the contravention of cl. 7 of the aforesaid order on the allegation that he had not used the goods purchased under the permits for the purpose for which they were issued. The trial Magistrate found him guilty. In appeal. however, the Sessions Judge acquitted him on the ground that the possitility of his retaining the iron at some other place was not entirely exclooed. The High Court in appeal by the State confirmed the acquittal holding that it had not been proved that the respondent had \"used\" the iron which he had obtained on the basis of the permit. The High Court further held that it was not possible to look into t!ie application in order to see for what purpose the applicant took the permit and no condition actually printed at the back of the permit had been broken.\n\nBy special leave the State appealed to the Supreme Court.\n\nOn behalf of the appellant it was urged: (1) the word \"use\" in\n\ncl. 7 of the order includes \"kept for eventual use for another purpose.\"\n\n(2) The High Cou.rt erred in holding that the application cannot be referred to for the purpose of construing the conditions appearing in the permit.\n\nHELD: The respondent could not be held guilty of a contravention of cl. 7 of the order.\n\n(i) No doubt the legislative intent of the Iron & Steel (Con, trol) G Order is that this essential commodity should be utilised in accordance\n\nwitli the conditions contained in the permit, but no clause in the Control Order in question evinces a legislative intent that a mere non-user is also prohibited and made punishable. fl65 Hl The word 'use' must take its colour from the context in which it is used. In cl. 7 the expression \"use ... in accordance with the conditions contained\" suggests something done positively e.g. utilisation H or disposal. Mere \"non-use\" is not included in the word \"use\". fl65 Dl\n\n(ii) The High Court was wrong in holding that it is not petrnissible to look at the application. to determine the purpose for which permit is attained. However in the present case the applications did not disclose that the respondent wanted to build a temple or dharamshala at any particular place. From the mere fact that the applications were made to the authorities in Deoria District, or the fact that in the applications it was mentioned that the goods were not available in Deoria District, it did not necessarily follow that the goods were intendPd to be used in that District. fl66 Hl\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n[1965) 3 S.C.R.\n\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 60 A of 1963.\n\nAppeal by special ieave from the judgment and order dated August 24, 1962 of the Allahabad High Court in Government Appeal No. 1379 of 1962.\n\nB. C. Misra and 0. P. Rana, for the appellant.\n\nJ. P. Goyal, for the respondent.\n\nThe Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the_ Allahabad High Court dismissing the appeal of the State against the judgment of the Sessions Judge allowing the appeal of the respondent and acquitting him.\n\nThe respondent obtained permits .under the Iron and Steel (Control) Order, 1956--hereinafter . referred to as the Control Order-for about 28 tons of iron, including 6 tons of rods, 15! tons of joints and 2 tons of G.C. Sheets. He is alleged to have purchased these articles on the basis of the above permits between\n\nJuly 1957 and March 1958. The permits were obtained on three D applications made by the respondent.\n\nOnly two applications are in the printed record. The first application is dated May 23, 1957. and is addressed to the Provincial Iron and Steel Controller, Kanpur, through the District Magistrate, Deoria. In this application the respondent stated that he was a political sufferer and he was constructing a public temple for which he required five tons of M.S.\n\nB Round and eight tons of Girder. He further stated that the requirements were not available at Deoria and as such the application should be considered and forwarded to the Controller for consideration and orders. It appears that this application was forwarded, duly recommended, by the District Supply Officer. Deoria, and ultimately a permit was given to him by the Controller. He P made another application dated September 7, 1957. Jn this application he again stated that he was a political sufferer and he was constructing a public temple and dharamshala for which he requireed certain quantities of iron. He further stated that , the requirements were not available at Deoria and as such the application should be forwarded to the Controller. This application was also G recommended and forwarded and ultimately a permit was given to him.\n\nOn January 2, 1958, the accused made another applica- . tion (Ex. Ka 9-not available in the printed record) and a permit was given to him by the District Supply Officer himself. We may mention that the original permits are not printed in the record, and, therefore, we have not been able to see for ourselves as to\n\nB . what are the exact conditions contained in the permits.\n\nIt is the case of the prosecution that the respondent after obtaining the materials sanctioned to him under the permits did not construct any temple or dharamshala building at Barhaj Bazar or at any other place, We may mention that Barhaj Bazar is the place where he lives and the applications which are in the record also mention this address.\n\nSfATE V. RAMAGYA SHARMA (Sikri, J.) 163\n\nA Before the Magistrate who tried the case the respondent was\n\npat the following question:\n\n\"It is alleged that the iron obtained under the permits mentiond in questions 2. 3 and 4 wus not utilised for the purpose for which it was taken. What have you to say in this respect?\" The respondent's reply was:\n\n\"No. Whatever iron I got, I used it in the temple situate in mauza, Tinhari, P. S. Madhuban, district AZamgarh, which is my place of residence as .well.\" Before the Magistrate the accused had admitted to have purchased about 17 tons cf iron. The Magistrate held it proved that the accused had at!east purchased one ton more from one Mishri Lal, P.W. 7. Thus, he came to the conclusion that the accused had purchased at least 18 tons of iron. He further held that on the evidence it was clear that only 3 / 4 ton of rods had been utilised in the building comtructed at Tinhari, but as the building D had been constructed between 1943-52, no portion of the iron\n\nobtained by the accused had been utilised for the purpose for which it was procured. He further held that the accused had disposed of the iron wrongfully at Kanpur and did not even bring the same to B~.rhaj Bazar or Tinhar. Accbrdingly he held that the respondent had contravened the provisions of cl. 7 of the Cont- E rol Order.\n\nThe respondent filed an appeal before the Sessions Judge.\n\nThe Sessions Judge held that barring a very small quantity of iron, the remaining quantity that was received by the respondent had not been util:; ed in the temple or dharamshala at Tinhari. Differ- F ing, fr~ the Magistrate, he held that it was not proved by any evidence. that the respondent had actually sold the excess quantity at Kanpur. He then observed that \"in the absence of any such evidence the possibility of the appellant retaining the iron at some other place is not completely excluded.\" Then construing cl. 7 of the Control Order, he observed that \"in the aforesaid section G there is no mention that the iron purchased should be utilised at any particular place or within a particular period. The condition in the various permits granted to the appellant was simply this that he should utilise the iron in erecting a temple or dharamshala in the town of Barhai. It may be noted that the main purpose was the-construction of a temple and dharamsha/a; the place H where it was to be constructed does not appear to have much significance. Further no time-limit is given during which the entire quantity of iron should be ¥tilised.\" Accordingly he held that there had been no contravention of cl. 7 of the Control Order.\n\nThe State appealed to the High Court. Srivastava, J., dismissed the appeal holding that there had been no contravention of cl. 7 of the Control Order.\n\nAccording to him, two essentials are netessary before there can be contravention of cl. 7. \"In the\n\n164 SuPREJ4E\n\nOOURT l\\El'ORTS [1965] 3 s.c.n.\n\nfirst place the iron and steel should be 'used'; secondly it should A be used otherwise than in accordance with the conditions contained or incorporated in the docwrient which was the authority for the\n\nacquisition.\" He held that the first condition had not been fulfilled because it had not been proved that the respondent had used the iron which he had obtained on the basis of the permit. It appears that the findings of the learned Sessions ludge, as well as the B Magistrate, that he had not used or utilised the remaining portions of the iron and steel at all were not questioned before him. According to him, if the remaining quantity of iron was still unutilised or . unused, then the respondent could not be said to have done anything contrary to cl. 7. He further held that the second condition had also not been fulfilled because the' permit itself contained C only one condition printed on its back. This condition was \"that the materials required against the permit will be used only for the purpose for which it was asked for and has been given.\" According to him, it is not permissible to refer to the application made for the permit because the only document that can be looked at is the permit. . He was, however, prepared to concede that \"it is n also open to the officer to mention in the permit that it is being granted for the purpose mentioned in the application. That may be a short-cut for avoiding the trouble of entering in the permit the details of the purpose. In that case it may be permissible to refer to the application.\" In spite of this concession, he concluded that \"when even that is not done in fact no condition is mentioned E in the permit at all about the manner in which the iron or steel is to be utilised it cannot be said that a condition of the permit has been broken because the assurance given in the application has not been carried out.\"\n\nMr, B. C. M°ISra, learned counsel for the appellant, has urged F before us that on the facts found by the learned Sessions Judge. cl. 7 of the Control Order has been contravened. He says that the word \"use\" in cl.· 7 includes \"kept for eventual use for another purpose.\" He says that if one stores iron and steel, one uses it and the word \"use\" does not imply consumption only. Relying on Maxwell on Interpretation of Statutes, Eleventh Edition, p. 266, G he says that we should give a wide construction to the word \"use\" in cl. 7.\n\nClause 5 and the relevant portion of cl. 7 of lli.e Control Order are as follows:\n\n\"5. Disposals.\n\nNo person, who acquires iron or steel under clause 4, or no producer shall dispose of or agree to dispose of or export. or agree to export from any place to which this Order extends any iron or steel, except in accordance with the conditions contained or incorporated in a special or general written order of the Controller.\n\nSTATE V. RAMAGYA SHAR)!A (Sikri, J.) 105\n\n7. Use of Iron and Steel to conform to conditions governing\n\nacquisition.\n\nA person acquiring iron or steel in accordance with the provisions of cl. 4 shall not use the iron or steel otherwise than in accordance with any conditions contained or incorporated in the document which was the authority for the acquisition ...... \"\n\nWe are unable to accede to the aoove contentions. There is no provision in the Control Order requiring that iron or steel acquired under the Control Order should be utilised within a specie fied time. If it had been the intention to include keeping or storing within the word 'use' there would have been some provision regarding the period during which it would be permissible to keep or store the iron, for it is common knowledge that building operations take some considerable time and are sometimes held up for shortage of material or other reasons. Further the word 'use' must D take its colour from the context in which it is used. In cl. 7 the expression \"use .. .in accordance with the conditions contained\"\n\nsuggests something done positively, e.g. utilisation or disposal.\n\nMere 'non-use', in our opinion, is not included in the word 'use'.\n\nThe passage relied on by the learned counsel in Maxwell is as follows:\n\n\"Wide Sense given to words: The rule of strict construction, however, whenever invoked, comes attended with qualifications and other rules no less important, and it is by the light which each contributes that the meaning must be determined. Among them is the rule that the sense of the words is to be adopted which best harmonises with the context and promotes in the fullest manner the policy and object of the legislature. The paramount object, in construing penal as well as other statutes, is to ascertain the legislative intent, and the rule of strict construction is not violated by permitting the words to have their full meaning, or the more extensive of two meanings, when best effectuating the intention. They are, indeed, frequently taken in the widest sense, sometimes even in a sense more wide than etymologically belongs or is popularly attached to them, in order to carry out effectually the legislative intent, or, to use Sir Edward Coke's words, to suppress the mischief and advance the remedy.\"\n\nBut this passage does not warrant the giving of a meaning . to a word apart from the context in which it is used. There is no doubt that the legislative intent of the Control Order is that this essential commodity should be utilised in accol'dance with the conditions contained in the permit, but no clause in this Control Order evinces a legislative intent that a mere non-user is also prohibited and made punishable.\n\nSUPRE.-....IE\n\nCOURT\n\nREPORTS [1965] 3 s.c.R.\n\nThe learned counsel referred to London County Council v.\n\nWood('), but we do net derive any ass; stance from that case. The head-note brings out the point decided in that case as follows:\n\n\"The Highways and Locomotives Act, 1878, provides by s. 32 that \"A country authority may ... make ... by-laws for granting annual licences to locomotives. u.sed within their country.\" And by a by-law made by the London County Council under that section it was provided that\n\n\"No locomotive shall be used on any highway within the county of London until an annual licence for the use of the same shall have been obtained from the council by the owner thereof\" : - .\n\nHeld, that a steam-roller which was not at the time being employed in road-making, but was merely passing through the county to a destination outside was being\n\n\"used within the country\" within the meaning of the section and the by-law.\"\n\nIn the context, the word \"used\" was, with respect, properly construed.\n\nCollins, J ., held that \"the object of the Act was evidently. to protect the highways, and the effect of a steam-roller upon the highways may be just the same whether it be engaged in mending lhe roads or not\".\n\nIn conclusion we hold that it has not been established that the respondent had used the iron acquired by him in contravention of cl. 7 of the Control Order.\n\nThe learne::I councel further urges that the High Court erred\n\nin holding that the application cannot be teferred to for the pur- F pose of construing the conditions appeari.ng in the permit, the condition being that \"the materials acquired against a permit will be used only for the purpose for which it was asked for and has been given.\" He says that the expression \"the purpose for which it was asked for\" refers back to the application, and the expression \"has been given\" refers back to the Order. There is some force in G what he urges.\n\nWe are unable to sustain the fin, ding of the High Court that it is not permissible to refer to the application and the order to find out the purpose for which the iron was obtained.\n\nBut even if we look at the applications, which. are in the printed record, the purpose mentioned is only construction of a temple, in the application dated May 23, 1957, and temple and dharam- H shalain the application dated September 7, 1957. These applications do not disclose that the respondent wanted to construct the temple and dharamshala at any particular place. It is urged that the sentence which occurs in both the applications, namely that the requirements are not available at Deoria, shows that the purpose for which the iron and steel was required was for construction\n\n(') [1897] 2 Qll 482.\n\nSTATE t'. RAMAGYA SHARMA (Sikri, J.)\n\nJ 67\n\nof a temple and dharamshala in the district of Deoria. This argument is sJught to be reinforced by asserting that a District Magistrate was not empowered to recommend applications for iron requird for works to be constructed outside the District, and therefore it must be held that the purpose was construction of a temple and dharamshala in the district of Deoria. However, no orders shJwing the j'lrisdiction of the District Magistrate in respect of this matter has been shown to us, and we are unable to conclude from the applications that the purpose was construction of a temple and dharc.mslzala in the district of Deoria alone.\n\nAccJrdingty we hold that the respondent has not contravened\n\ncl. 7 of the Control Order. The appeal accordingly fails and is dismissed\n\nAppeal dismissed.", "total_entities": 52, "entities": [{"text": "STATE OF UTTAR PRADESH", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "STATE OF UTTAR PRADESH", "offset_not_found": false}}, {"text": "RAMAGYA SHARMA VAIDYA", "label": "RESPONDENT", "start_char": 24, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "RAMAGYA SHARMA VAIDYA", "offset_not_found": false}}, {"text": "February 24, 1965", "label": "DATE", "start_char": 47, "end_char": 64, "source": "ner", "metadata": {"in_sentence": "STATE OF UTTAR PRADESH\n\nRAMAGYA SHARMA VAIDYA\n\nFebruary 24, 1965\n\n[K. N. W ANCHOO, J. R. MUDHOLKAR AND S. M. SJKRI, JJ.]"}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 86, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 292, "end_char": 297, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 801, "end_char": 806, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court", "label": "COURT", "start_char": 1606, "end_char": 1619, "source": "ner", "metadata": {"in_sentence": "By special leave the State appealed to the Supreme Court."}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 1686, "end_char": 1691, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 1979, "end_char": 1984, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 2411, "end_char": 2416, "source": "regex", "metadata": {"statute": null}}, {"text": "Deoria District", "label": "GPE", "start_char": 2984, "end_char": 2999, "source": "ner", "metadata": {"in_sentence": "From the mere fact that the applications were made to the authorities in Deoria District, or the fact that in the applications it was mentioned that the goods were not available in Deoria District, it did not necessarily follow that the goods were intendPd to be used in that District."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 3397, "end_char": 3417, "source": "ner", "metadata": {"in_sentence": "Appeal by special ieave from the judgment and order dated August 24, 1962 of the Allahabad High Court in Government Appeal No."}}, {"text": "B. C. Misra", "label": "LAWYER", "start_char": 3458, "end_char": 3469, "source": "ner", "metadata": {"in_sentence": "B. C. Misra and 0.", "canonical_name": "B. C. Misra"}}, {"text": ". P. Rana", "label": "LAWYER", "start_char": 3475, "end_char": 3484, "source": "ner", "metadata": {"in_sentence": "B. C. Misra and 0."}}, {"text": "J. P. Goyal", "label": "LAWYER", "start_char": 3506, "end_char": 3517, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal, for the respondent."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 3583, "end_char": 3588, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the_ Allahabad High Court dismissing the appeal of the State against the judgment of the Sessions Judge allowing the appeal of the respondent and acquitting him."}}, {"text": "May 23, 1957", "label": "DATE", "start_char": 4319, "end_char": 4331, "source": "ner", "metadata": {"in_sentence": "The first application is dated May 23, 1957."}}, {"text": "Kanpur", "label": "GPE", "start_char": 4395, "end_char": 4401, "source": "ner", "metadata": {"in_sentence": "and is addressed to the Provincial Iron and Steel Controller, Kanpur, through the District Magistrate, Deoria."}}, {"text": "Deoria", "label": "GPE", "start_char": 4436, "end_char": 4442, "source": "ner", "metadata": {"in_sentence": "and is addressed to the Provincial Iron and Steel Controller, Kanpur, through the District Magistrate, Deoria."}}, {"text": "September 7, 1957", "label": "DATE", "start_char": 5016, "end_char": 5033, "source": "ner", "metadata": {"in_sentence": "He P made another application dated September 7, 1957."}}, {"text": "January 2, 1958", "label": "DATE", "start_char": 5449, "end_char": 5464, "source": "ner", "metadata": {"in_sentence": "On January 2, 1958, the accused made another applica- ."}}, {"text": "SfATE V. RAMAGYA SHARMA", "label": "JUDGE", "start_char": 6169, "end_char": 6192, "source": "ner", "metadata": {"in_sentence": "SfATE V. RAMAGYA SHARMA (Sikri, J.) 163\n\nA Before the Magistrate who tried the case the respondent was\n\npat the following question:\n\n\"It is alleged that the iron obtained under the permits mentiond in questions 2.", "canonical_name": "STATE V. RAMAGYA SHAR)!A"}}, {"text": "Tinhari", "label": "GPE", "start_char": 6584, "end_char": 6591, "source": "ner", "metadata": {"in_sentence": "Whatever iron I got, I used it in the temple situate in mauza, Tinhari, P. S. Madhuban, district AZamgarh, which is my place of residence as .well.\""}}, {"text": "AZamgarh", "label": "GPE", "start_char": 6618, "end_char": 6626, "source": "ner", "metadata": {"in_sentence": "Whatever iron I got, I used it in the temple situate in mauza, Tinhari, P. S. Madhuban, district AZamgarh, which is my place of residence as .well.\""}}, {"text": "Mishri Lal", "label": "WITNESS", "start_char": 6849, "end_char": 6859, "source": "ner", "metadata": {"in_sentence": "The Magistrate held it proved that the accused had at!east purchased one ton more from one Mishri Lal, P.W. 7."}}, {"text": "Tinhar", "label": "GPE", "start_char": 7393, "end_char": 7399, "source": "ner", "metadata": {"in_sentence": "He further held that the accused had disposed of the iron wrongfully at Kanpur and did not even bring the same to B~.rhaj Bazar or Tinhar."}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 7475, "end_char": 7480, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 8086, "end_char": 8091, "source": "regex", "metadata": {"statute": null}}, {"text": "Barhai", "label": "GPE", "start_char": 8438, "end_char": 8444, "source": "ner", "metadata": {"in_sentence": "The condition in the various permits granted to the appellant was simply this that he should utilise the iron in erecting a temple or dharamshala in the town of Barhai."}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 8773, "end_char": 8778, "source": "regex", "metadata": {"statute": null}}, {"text": "Srivastava", "label": "JUDGE", "start_char": 8840, "end_char": 8850, "source": "ner", "metadata": {"in_sentence": "Srivastava, J., dismissed the appeal holding that there had been no contravention of cl."}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 8925, "end_char": 8930, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 9038, "end_char": 9043, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 9857, "end_char": 9862, "source": "regex", "metadata": {"statute": null}}, {"text": "B. C. M", "label": "LAWYER", "start_char": 10993, "end_char": 11000, "source": "ner", "metadata": {"in_sentence": "Mr, B. C. M°ISra, learned counsel for the appellant, has urged F before us that on the facts found by the learned Sessions Judge.", "canonical_name": "B. C. Misra"}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 11119, "end_char": 11124, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 11514, "end_char": 11519, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 5", "label": "PROVISION", "start_char": 11522, "end_char": 11530, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 11559, "end_char": 11564, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 4", "label": "PROVISION", "start_char": 11665, "end_char": 11673, "source": "regex", "metadata": {"statute": null}}, {"text": "STATE V. RAMAGYA SHAR)!A", "label": "JUDGE", "start_char": 11947, "end_char": 11971, "source": "ner", "metadata": {"in_sentence": "STATE V. RAMAGYA SHAR)!A (Sikri, J.) 105\n\n7.", "canonical_name": "STATE V. RAMAGYA SHAR)!A"}}, {"text": "cl. 4", "label": "PROVISION", "start_char": 12134, "end_char": 12139, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 12957, "end_char": 12962, "source": "regex", "metadata": {"statute": null}}, {"text": "Edward Coke", "label": "OTHER_PERSON", "start_char": 14182, "end_char": 14193, "source": "ner", "metadata": {"in_sentence": "They are, indeed, frequently taken in the widest sense, sometimes even in a sense more wide than etymologically belongs or is popularly attached to them, in order to carry out effectually the legislative intent, or, to use Sir Edward Coke's words, to suppress the mischief and advance the remedy.\""}}, {"text": "Highways and Locomotives Act, 1878", "label": "STATUTE", "start_char": 14915, "end_char": 14949, "source": "regex", "metadata": {}}, {"text": "s. 32", "label": "PROVISION", "start_char": 14963, "end_char": 14968, "source": "regex", "metadata": {"linked_statute_text": "The Highways and Locomotives Act, 1878", "statute": "The Highways and Locomotives Act, 1878"}}, {"text": "London County Council", "label": "ORG", "start_char": 15122, "end_char": 15143, "source": "ner", "metadata": {"in_sentence": "And by a by-law made by the London County Council under that section it was provided that\n\n\"No locomotive shall be used on any highway within the county of London until an annual licence for the use of the same shall have been obtained from the council by the owner thereof\" : - ."}}, {"text": "London", "label": "GPE", "start_char": 15250, "end_char": 15256, "source": "ner", "metadata": {"in_sentence": "And by a by-law made by the London County Council under that section it was provided that\n\n\"No locomotive shall be used on any highway within the county of London until an annual licence for the use of the same shall have been obtained from the council by the owner thereof\" : - ."}}, {"text": "Collins", "label": "JUDGE", "start_char": 15687, "end_char": 15694, "source": "ner", "metadata": {"in_sentence": "Collins, J .,"}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 16028, "end_char": 16033, "source": "regex", "metadata": {"statute": null}}, {"text": "STATE t'. RAMAGYA SHARMA", "label": "RESPONDENT", "start_char": 17393, "end_char": 17417, "source": "ner", "metadata": {"in_sentence": "STATE t'.", "canonical_name": "STATE V. RAMAGYA SHAR)!A"}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 18134, "end_char": 18139, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_168_172_EN", "year": 1965, "text": "COMMISSIONER, MADRAS HINDU RELIGIOUS AND A\n\nCHARITABLE ENDOWMENTS .\n\nNARAYANA AYYANGAR AND OTHERS\n\nFebruary 24, 1965\n\n(K. SUBBA RAO, J. C. SHAH AND R. S. BACHAWAT, JJ.]\n\nMadras Hindu Religious and Charitable Endowments Act, 19 of 1951, s. 6(13}--'Religious Charity' meaning of-Samaradhanai Fund for the purpo•se of feeding Brahmins attending the celebration of a festival at a temple, whether such charity.\n\nA Samaradhanai Fund was started for the purpose of feeding Brahmin pilgrims attending Sri Venkatachalapathiswami shrine at village Gunaseelam (in Madras State) on the occasion of Rathotsavam festival. On the enactment of the Madras Hindu Religious and Charitable Endo'.'ments Act 19 of 1951 the Deputy Commissioner of Hindu Religious and Charitable Endowments initial•-:! proceedings under s. 57(d) of the Act and held that the a!oresaid fund was a 'religious charity' within the meaning of s. 6(13) of the Act. His order was upheld by the Commissioner. The Trustees of the Fund then filed a suit to set aside the ocder of the Commissioner contending that the Samaradhanai Fund was neither a public charity nor a 'religious charity'. In s. 6(13), 'religious charity' is defined as a \"public charity associated with a Hindu festival .or observance of\n\na religious character, whether it be conected with a math or temple or not\". The trial court decided against the trustees but the High E Court held in their favour. According to the High Court feeding the Brahmins was a public charity but it was not a 'religious charity in as much as those who conducted the celebration of the Rathotsavam at the shrine had no control over the feeding of Brahmins out of the SamaTl!ldhanai Fund. On appeal to the Supreme Court by the Commissioner, with special leave.\n\nHELD: Feeding of Brahmins out of the Samaradhanai fund was associated with the celel:ration of the Rathotsavam at the Venkatachalapathiswami shrine.\n\nThe expression \"associated\" in s. 13 of Act 19 of 1951 is used having regard to the history of the legislation the scheme and objects of the Act and the context in which it occurs, as meaning \"being connected with\" or\n\n11in relation to\". The expression does nOt import any control by the authorit!es who manage or administer the festival.\n\nThere are many Hindu festivals which are celebrated by the public gener_a!ly without any connection with any temple or math. The definition of \"religious charities\" includes such general festivals and observances. It cannot be said that there must always be a set of persons who control the celbration of a festival or an ot-servar.CP\n\nf171 D-Gl Nor can it be contended that the expression \"associated with a Hindu festival or observance of a religious character\" in the definition of \"religious charity\" implies that the public charity must be an integral part of the Hindu religious festival or observance. There is nothing in the Act which indicates any such intention on the part of the legislature. [171 H] ·\n\nCIVIL APPELLATE JURISDICl10N: Civil Appeal No. 844 of 1963.\n\nCOl4MISSIONEll V. NARAYANA (Shah, J.) 169\n\nAppeal by special leave from the judgment and decree date November 1, 1960 of the Madras High Court in Appeal No. 199 of 1957.\n\nA. J{anganadham Chetty and A. V. Rangam, for the appellant.\n\nA. V. Vishwanatha Sastri and R. Thiagarajan, for respondent Nos. I and 2.\n\nThe Judgment of the Court was delivered by Shah, J. Venkatarama Iyengar, Kastliuri Iyengar and Ranga Iyengar, residents of the village Kariainanikam in Tiruchirappalli District, with the aid of contributions, subscriptions and donations 0 set up a Samaradhanai Fund for feeding Brahmin pilgrims attending Sri Venkatachalapathiswami shrine at village Gunaseelam on <he occasion of Rathotsavam festival. Between the years 1936 and 1940 seven acres of land were purchased for Rs. I 0,500 to provide a permanent income for the Fund. It was found that the expenses incurred for the Rathotsavam festival did not exhaust the entire D income and the balance was utilised for Vanabhojanam in Kariamanikam village in the month of K artigai and on the Dwadesi following Vaikunta Egadesi day.\n\nThe President, Hindu Religious and Charitable Endowments Board, sought to levy for the years 1351 to 1354 F asli contributions E under s. 69 of Madras Act 2 of 1927 in respect of the Fund. But in Suit No. 297 of 1947 of the file of the District Court at Tiruchi rappalli that claim was disallowed. The District Court held that the charity was not a \"specific endowment\" within the meaning of Act 2 of 1927. After the Madras Hindu Religious and Charitable Endowments Act 19 of 1951 was enacted, the Deputy Com- F missioner of Hindu Religious and Charitable Endowments initiated a fresh proceeding under s. 57(d) of that Act and held that the Samardhanai Fund was a \"religious charity\" within the meaning of s. 6(13) of the Act. Against that order an appeal was carried by the trustees of the Fund to the Commissioner of Hindu Religious and Cartible Endoens. The C?missioner held that feeding G Brahmms m connect10n with the rehg1ous festival of Hindus was a public charity and also a religious charity within the meaning of s. 6(13) of Madras Act 19 of 1951.\n\nThe trustees of the Fund .then instituted Suit No. 181 of 1954 m. the Court of the Subordmate Judge. Tiruchirappalli to set\n\naside he order of the. Commiss!oner on the plea that the Samar- H dhaai Fund \"\".as pnvate charity not associated with any Hindu festiyal or service m a temple .and was not religious charity or a specific endowment or a public charity. and that it could in no\n\nmnner be.cme subject t~ control of th~ Commissioner, Madras Hmdu Rehg10us and Charity Endowments. T)le suit was resisted by t~~ Commissioner. ?ontendinll th.at the Fund was held and admm1stered. for a reh&1ous cha_rity viz. feeding Brahmin pilgrims on the occasion of a Hmdu festival.\n\nThe Subordinate Judge held\n\n170 :-:.U11RE1t1.E\n\nCOURT Hf<; pon:r:-; [1965] 3 s.o.:a.\n\nthat the Fund was a public charity and that it was also \"a religious A charity\" within the meaning of s. 6(13) of the Act, the charity being associated with the Hindu festival of Rat lwtsavam at the Gunaseclam temple.\n\nIn appeal against the order of the Subordinate Judge dismissing the suit filed by the trustee;, the High Court of Madras held that the Samardhanai Fund was a public charity within the meaning_ of s. 6(13) of the Act, but not being associated B with any Hindu festival or observance of a religious character it was not a \"religious charity\" and the Commissioner had no jurisdiction to bring it under his control. The High Court accordingly allowed the appeal and decreed the suit filed by the trustees. With special leave, the Commissioner has appealed to this Court.\n\nThe only question which falls to be determined in this appeal C is whether on the facts found by the Court of First Instance and\n\nonfirmed by the High Court, the Samardhanai Fund is a \"religious charity\" within the meaning of s. 6(13) of Madras Act 19 of 1951.\n\nClause (13) of s. 6 defines \"religious charity\" as meaning \"a public charity associated with a Hindu festival or observance of a religious character, whether it be conncted with a math or temple or not\".\n\nD The definition prescribes two conditions which go to constitute a religious charity: there must be a public charity and that charity must be associated with a Hindu festival or observance of a religious character. If these be fulfilled, a puBlic charity will be a religious charity, even if it is not connected with a math or temple.\n\nThe Subordinate Judge held on the evidence .that the \"charity in E question is a feeding charity conducted during the ten days of the Rathotsavam in 'the Prasanna Venkatachallapnthiswami temple in Gunaseelam in the month of Purattasi. Only Brahmins are fed and not other community people. There are similar feeding charitks for the different communities conducted by the respective community people. The charity in. question has no connec- 1 tion with the Gunaseelam temple in the sense that the food \"prepared is not offered to the deity, and feeding is done not in the temple premises but at a separate place originally in a specially erected panda! and now in Seshagiri lyer's choultry (Dharamshalla). The other communities are not fed at this charity . .\n\nThe temple authorities have no voice in the conduct G of the feeding\", and the High Court agreed with that view. The Subordinate Judge held on those findings that the Samardhanai Fund was a public charity within the meaning of s. 6(13) and with that view also the High Court agreed.\n\nThe Subordinate Judge also held that the charitv was associated with the Hindu festival of Rathotsavam in Sri Prasanna Venkatachallapathiswami temple H in Gunasee1am-Rathotsavam being an observance of a religious character when the deity is taken out in procession in a chariotand therefore the chaity in question was clearly one associated with a Hindu festival and also with the observance of a religious character. In disagreeing with that view, the High Court observed that the expression \"associated with a Hindu festival or obs er vance of a religious character\" imported some unity of purpose or\n\nCOMMISS!O\"ER V. :<ARAYA:<A (Shah, J.) 1 71\n\nA common object or common endeavour between the festivl and the charity and in the absence of such umty, common obiect o.r common endeavour, the charity could not be regarded as a r.ehgious charity within the meaning of s., 603) of the At. In the view of the High Court that feeding Brahmm plgnms. durmg the Rathotsavam festival of Sri Venkatachallapath1swami shrme at Guna- B seelam did not constitute an association between the Fund and the Rathotsavam festival itself, for the trustees of the shrine co~\n\nducting the festival \"had no manner of check, control or supervision over the feeding charity or Samardhana! Fund\", thy could not insist upon the feeding being done dunng the festival, and \"cessation or discontinuance of the feeding by the trustees. of the c feeding charity may constitute a breach of trust on their part but cannot in the least affect the due performance of the Rathotsavam festival itself\". They further observed that belief of the founders of the charity that feeding Brahmins on the occasion of an important festival was meritorious. will not establish \"any link or connection\" between the festival and the charity.\n\nWe are unable to agree with the view so expressed by the High Court. The expression \"associated\" in s. 603) of Act 19 of 1951 is used having regard to the history of the legislation, the scheme and objects of the Act, and the context in which the expression occurs, as meaning \"being connected with\" or \"in relation to\".\n\nThe expression does not import any control by the authorities who manage or administer the festival.\n\nA Hindu religious festival or observance may have a local significance, in that it is celebrated or observed in a particular locality in connection with a shrine, temple or math, or it may be a festival or observance celebrated generally without any connection with any temple or math. In the case of such general festivals or observances there is no one who c, rn be so said to cantrol the celebrations, and the definition of \"religious charity\" includes such general festivals and observances.\n\nIt cannot be assumed that there must always be a set of persons who control the celebration of a festival or an observance. The test suggested by the High Court that in order that there should be, between the charity and the festival or observance such a relation that the administration of the charity must be controlled by those :vI10 ceebrte th~ festival or observance in a temple or math, besides bemg mapt m the case of general festivals and observances can only be evolved if words which are not found in the definition of \"religious charity\" are added thereto.\n\nMr. Vishwanatha Sastri appearing on behalf of the respondenttrutes contended that the expression \"associated with a Hindu festival or observance of a religious character\" in the definition ?f \"religious charity\" _implies .at the public charity must be an mtegral part of the Hmdu rehg1ous festival or observance. But there is nothing in the Act which indicates any such intention on !he par~ of , the Legislature., Mr. Sastri sought to give diverse tllustra.ttons m support. of his contention that mere feeding of Brahmms on the occasion of a Hindu festival or cbservance will\n\nl72\n\nSUPREME\n\nCOURT\n\nREPORT8 [1965] ; I s.c.R.\n\nnot amount to association within the meaning of s. 6( 13). It is un- A . necessary to deal with these illustrations, for the definition contemplates a public charity which alone can be a religious charity if the other conditions are fulfilled.\n\nA voluntary celebration of an event of religious significance by feeding Brahmins does not make it a public charity. There must be an institution which may in law be regarded as a public charity, before it may by its B association with a religious festival or observance be regarded as a religious charity. The association undoubtedly must be real and not imaginary, but to constitute association it is not predicated that the administration of public charity must be controlled by the persons responsible for celebrating the religious festival in a temple or math or be an integral part of the fstival or observance. c\n\nOn the facts found, it is clear that on the occasion of the Rathotsavam festival of Sri Prasanna Venkatachalapathiswami shrine, pilgrims from many places attend the festival and the object of the charity is to feed Brahmins attending the shrine on the occasion of this festival. It is not disputed that setting up a Fund for D feeding Brahmins is a public charity. The primary purpose of the charity is to feed Brahmin pilgrims attending the Rat/zotsavam.\n\nThis public charity has therefore a real connection with the Rathotsavam which is a Hindu festival of a religious character, and therefore it is a religious char'ty within the meaning of s. 6(13) of Madras Act 19 of 1951. Surplus income of the Fund is used in Vanabhojanam in the month of Kartigai, and on the day following E the Vaikunta Ekadeslzi. It is not suggested that on that account the Fund is not a \"religious charity\".\n\nWe therefore set aside the order passed by the High Court and restore the order passed by the Trial Court. There will be no order as to costs throughout.\n\nF Appeal allowed.", "total_entities": 43, "entities": [{"text": "COMMISSIONER, MADRAS HINDU RELIGIOUS AND A\n\nCHARITABLE ENDOWMENTS", "label": "PETITIONER", "start_char": 0, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER, MADRAS HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS", "offset_not_found": false}}, {"text": "NARAYANA AYYANGAR AND OTHERS", "label": "RESPONDENT", "start_char": 69, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "NARAYANA AYYANGAR AND OTHERS", "offset_not_found": false}}, {"text": "February 24, 1965", "label": "DATE", "start_char": 99, "end_char": 116, "source": "ner", "metadata": {"in_sentence": "NARAYANA AYYANGAR AND OTHERS\n\nFebruary 24, 1965\n\n(K. SUBBA RAO, J. C. SHAH AND R. S. BACHAWAT, JJ.]"}}, {"text": "K. SUBBA RAO, J.", "label": "JUDGE", "start_char": 119, "end_char": 135, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 136, "end_char": 143, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ.", "label": "JUDGE", "start_char": 148, "end_char": 167, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Madras Hindu Religious and Charitable Endowments Act", "label": "STATUTE", "start_char": 170, "end_char": 222, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 57(d)", "label": "PROVISION", "start_char": 798, "end_char": 806, "source": "regex", "metadata": {"linked_statute_text": "Madras Hindu Religious and Charitable Endowments Act", "statute": "Madras Hindu Religious and Charitable Endowments Act"}}, {"text": "s. 6(13)", "label": "PROVISION", "start_char": 899, "end_char": 907, "source": "regex", "metadata": {"linked_statute_text": "Madras Hindu Religious and Charitable Endowments Act", "statute": "Madras Hindu Religious and Charitable Endowments Act"}}, {"text": "s. 6(13)", "label": "PROVISION", "start_char": 1145, "end_char": 1153, "source": "regex", "metadata": {"linked_statute_text": "Madras Hindu Religious and Charitable Endowments Act", "statute": "Madras Hindu Religious and Charitable Endowments Act"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 1706, "end_char": 1719, "source": "ner", "metadata": {"in_sentence": "On appeal to the Supreme Court by the Commissioner, with special leave."}}, {"text": "s. 13", "label": "PROVISION", "start_char": 1943, "end_char": 1948, "source": "regex", "metadata": {"statute": null}}, {"text": "A. J{anganadham Chetty", "label": "LAWYER", "start_char": 3199, "end_char": 3221, "source": "ner", "metadata": {"in_sentence": "A. J{anganadham Chetty and A. V. Rangam, for the appellant."}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 3226, "end_char": 3238, "source": "ner", "metadata": {"in_sentence": "A. J{anganadham Chetty and A. V. Rangam, for the appellant."}}, {"text": "A. V. Vishwanatha Sastri", "label": "LAWYER", "start_char": 3260, "end_char": 3284, "source": "ner", "metadata": {"in_sentence": "A. V. Vishwanatha Sastri and R. Thiagarajan, for respondent Nos."}}, {"text": "R. Thiagarajan", "label": "LAWYER", "start_char": 3289, "end_char": 3303, "source": "ner", "metadata": {"in_sentence": "A. V. Vishwanatha Sastri and R. Thiagarajan, for respondent Nos."}}, {"text": "Shah", "label": "JUDGE", "start_char": 3378, "end_char": 3382, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J. Venkatarama Iyengar, Kastliuri Iyengar and Ranga Iyengar, residents of the village Kariainanikam in Tiruchirappalli District, with the aid of contributions, subscriptions and donations 0 set up a Samaradhanai Fund for feeding Brahmin pilgrims attending Sri Venkatachalapathiswami shrine at village Gunaseelam on <he occasion of Rathotsavam festival."}}, {"text": "J. Venkatarama Iyengar", "label": "JUDGE", "start_char": 3384, "end_char": 3406, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J. Venkatarama Iyengar, Kastliuri Iyengar and Ranga Iyengar, residents of the village Kariainanikam in Tiruchirappalli District, with the aid of contributions, subscriptions and donations 0 set up a Samaradhanai Fund for feeding Brahmin pilgrims attending Sri Venkatachalapathiswami shrine at village Gunaseelam on <he occasion of Rathotsavam festival."}}, {"text": "Kastliuri Iyengar", "label": "OTHER_PERSON", "start_char": 3408, "end_char": 3425, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J. Venkatarama Iyengar, Kastliuri Iyengar and Ranga Iyengar, residents of the village Kariainanikam in Tiruchirappalli District, with the aid of contributions, subscriptions and donations 0 set up a Samaradhanai Fund for feeding Brahmin pilgrims attending Sri Venkatachalapathiswami shrine at village Gunaseelam on <he occasion of Rathotsavam festival."}}, {"text": "Ranga Iyengar", "label": "LAWYER", "start_char": 3430, "end_char": 3443, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J. Venkatarama Iyengar, Kastliuri Iyengar and Ranga Iyengar, residents of the village Kariainanikam in Tiruchirappalli District, with the aid of contributions, subscriptions and donations 0 set up a Samaradhanai Fund for feeding Brahmin pilgrims attending Sri Venkatachalapathiswami shrine at village Gunaseelam on <he occasion of Rathotsavam festival."}}, {"text": "Gunaseelam", "label": "GPE", "start_char": 3685, "end_char": 3695, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J. Venkatarama Iyengar, Kastliuri Iyengar and Ranga Iyengar, residents of the village Kariainanikam in Tiruchirappalli District, with the aid of contributions, subscriptions and donations 0 set up a Samaradhanai Fund for feeding Brahmin pilgrims attending Sri Venkatachalapathiswami shrine at village Gunaseelam on <he occasion of Rathotsavam festival."}}, {"text": "Kariamanikam village", "label": "GPE", "start_char": 4018, "end_char": 4038, "source": "ner", "metadata": {"in_sentence": "It was found that the expenses incurred for the Rathotsavam festival did not exhaust the entire D income and the balance was utilised for Vanabhojanam in Kariamanikam village in the month of K artigai and on the Dwadesi following Vaikunta Egadesi day."}}, {"text": "s. 69", "label": "PROVISION", "start_char": 4252, "end_char": 4257, "source": "regex", "metadata": {"statute": null}}, {"text": "After the Madras Hindu Religious and Charitable Endowments Act", "label": "STATUTE", "start_char": 4524, "end_char": 4586, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 57(d)", "label": "PROVISION", "start_char": 4719, "end_char": 4727, "source": "regex", "metadata": {"linked_statute_text": "After the Madras Hindu Religious and Charitable Endowments Act", "statute": "After the Madras Hindu Religious and Charitable Endowments Act"}}, {"text": "s. 6(13)", "label": "PROVISION", "start_char": 4823, "end_char": 4831, "source": "regex", "metadata": {"linked_statute_text": "After the Madras Hindu Religious and Charitable Endowments Act", "statute": "After the Madras Hindu Religious and Charitable Endowments Act"}}, {"text": "s. 6(13)", "label": "PROVISION", "start_char": 5140, "end_char": 5148, "source": "regex", "metadata": {"linked_statute_text": "After the Madras Hindu Religious and Charitable Endowments Act", "statute": "After the Madras Hindu Religious and Charitable Endowments Act"}}, {"text": "Samar- H dhaai Fund", "label": "ORG", "start_char": 5358, "end_char": 5377, "source": "ner", "metadata": {"in_sentence": "Commiss!oner on the plea that the Samar- H dhaai Fund \"\".as pnvate charity not associated with any Hindu festiyal or service m a temple .and was not religious charity or a specific endowment or a public charity."}}, {"text": "s. 6(13)", "label": "PROVISION", "start_char": 6035, "end_char": 6043, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 6252, "end_char": 6272, "source": "ner", "metadata": {"in_sentence": "In appeal against the order of the Subordinate Judge dismissing the suit filed by the trustee;, the High Court of Madras held that the Samardhanai Fund was a public charity within the meaning_ of s. 6(13) of the Act, but not being associated B with any Hindu festival or observance of a religious character it was not a \"religious charity\" and the Commissioner had no jurisdiction to bring it under his control."}}, {"text": "Samardhanai Fund", "label": "PETITIONER", "start_char": 6287, "end_char": 6303, "source": "ner", "metadata": {"in_sentence": "In appeal against the order of the Subordinate Judge dismissing the suit filed by the trustee;, the High Court of Madras held that the Samardhanai Fund was a public charity within the meaning_ of s. 6(13) of the Act, but not being associated B with any Hindu festival or observance of a religious character it was not a \"religious charity\" and the Commissioner had no jurisdiction to bring it under his control."}}, {"text": "s. 6(13)", "label": "PROVISION", "start_char": 6348, "end_char": 6356, "source": "regex", "metadata": {"statute": null}}, {"text": "Samardhanai Fund", "label": "ORG", "start_char": 6882, "end_char": 6898, "source": "ner", "metadata": {"in_sentence": "The only question which falls to be determined in this appeal C is whether on the facts found by the Court of First Instance and\n\nonfirmed by the High Court, the Samardhanai Fund is a \"religious charity\" within the meaning of s. 6(13) of Madras Act 19 of 1951."}}, {"text": "s. 6(13)", "label": "PROVISION", "start_char": 6946, "end_char": 6954, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 6997, "end_char": 7001, "source": "regex", "metadata": {"statute": null}}, {"text": "Seshagiri lyer", "label": "OTHER_PERSON", "start_char": 8187, "end_char": 8201, "source": "ner", "metadata": {"in_sentence": "and now in Seshagiri lyer's choultry (Dharamshalla)."}}, {"text": "s. 6(13)", "label": "PROVISION", "start_char": 8511, "end_char": 8519, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 603", "label": "PROVISION", "start_char": 10462, "end_char": 10468, "source": "regex", "metadata": {"statute": null}}, {"text": "Vishwanatha Sastri", "label": "OTHER_PERSON", "start_char": 11856, "end_char": 11874, "source": "ner", "metadata": {"in_sentence": "Mr. Vishwanatha Sastri appearing on behalf of the respondenttrutes contended that the expression \"associated with a Hindu festival or observance of a religious character\" in the definition ?"}}, {"text": "Sastri", "label": "OTHER_PERSON", "start_char": 12271, "end_char": 12277, "source": "ner", "metadata": {"in_sentence": "Mr. Sastri sought to give diverse tllustra.ttons m support."}}, {"text": "s. 6( 13)", "label": "PROVISION", "start_char": 12526, "end_char": 12535, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6(13)", "label": "PROVISION", "start_char": 13988, "end_char": 13996, "source": "regex", "metadata": {"statute": null}}, {"text": "Vanabhojanam", "label": "GPE", "start_char": 14061, "end_char": 14073, "source": "ner", "metadata": {"in_sentence": "Surplus income of the Fund is used in Vanabhojanam in the month of Kartigai, and on the day following E the Vaikunta Ekadeslzi."}}]}
{"document_id": "1965_3_173_176_EN", "year": 1965, "text": "NAND KISHORE SARAF\n\nSTATE OF RAJASTHAN AND ANOTHER\n\nFebruary 24, 1965\n\n(P. B. GAJENDRAGADKAR, C.J., RAGHUBAR DAYAL AND\n\nV. RAMASWAMI, JI.)\n\nRajasthan Minor Mineral Concessio~ Rules, 1959, Rules 36(7), ~9- Auction for the grant of royalty collection cantract-Whether obltaa.- tor11 on Government to accept highest bid-Whether preferee ca\"\n\nbe shown t.o workers' coopeative societies against highest bidder.\n\nThe appellant offered the highest bid at the auction for the grant of royalty collection contract on January 21, 1964. Repondent No. a a cooperative society of workers was also one of the bidders. Respondent No. 2 made an application on March 5, 1964 to the Government stating therein that the appellant had not deposited 25 per cent of the bid amount as security within the time prescribed by Rule 36(~) of the Rajasthan Minor Mineral Concession Rules, 1959, and that it was prepared to toke the royalty collection contract on the highest bid as made by appellant. On the above application the State Government made an order in favour of Respondent No. 2. The appellant thereupon filed a writ petition. in the High Court which was dismissed. He was however granted a certificate of fitness.\n\nIn appeal it was contended that the Government had merely tB confirm the highest bid at the auction by way of formality and was not competent to sanction the contract in favour of someone who ilad not offered the highest bid at the auction.\n\nHELD : (i) The appellant had admittedly failed to deposit per cent of the bid as security in compliance with the provisions of Rule 36(7). The rules did not contemplate adjustment of security deposited for an earlier period as the appellant claimed. He therefore lost what.- ever claim he could have had for the final acceptance of his bid by Government and therefore could not question the grant of the contract to any other person by th\" Government. [175 B-C]\n\n(ii) Nothing in Rule 36 requires the Government to accept the highest bid by formally confirming it. The Government has discretion to confirm the bid or not to confirm it. Further Rule 59 provides for the relaxation of any provision of the rules in the interest of mineral development or better working of the mines. [176 A-BJ\n\n(iii) The view taken by the Government in preferring Respondent No. 2 to the appellant cannot be said to be arbitrary or without any justification. The cooperative society is of the labourers who work in the mines and the benefit of the contract would go to the labourers. In view of the spirit underlying Rule 59, Government could therefore relax any such rule which could in any way come in the way or i:ts granting the contract to Respondent No. 2. [176 D-Fl\n\n(iv) The time for .which the contract was granted was shortly to R come to an end, and •t would not be desirable even if the appellant was right to interfere with the contract. fl'76 Gl K. N. Guruswamy v. State of Mysore, [19551 1 S.C.R. 305, relied on.\n\nC1VIL APPELLATE JuRISDICTJON: Civil Appeal No. 79 of 1965.\n\nAppe~I from t!ie judgment and order dated August 5, 1964, of the Ra1asthan High Court, Jodhpur, in D.B. Civil Writ Petition No. 636 of 1964.\n\nJ,/B(D)BCI-13\n\nIH 8UPREMll\n\nCOURT\n\nMPORTI! [1965] 3 s.o.e..\n\nSarjoo Prasad, /. B. Dadachanjl, 0. C. Mathur and Ravinder A Narain, for the appellant.\n\nM. M. Tewari, K. K. Jain and R. N. Sachthey, for respondent No. I.\n\nB. B. Tawak/ey and K. P. Gupta, for respondent No. 2.\n\nThe Judgment of the Court was delivered by B\n\nRaghubar Dayal, J. This appeal, on certificate granted by the Rajasthan High Court, is against the dismissal of the appellant's writ petition under Art. 226 of the Constitution praying for the issue of a writ of certiorari to the State of Rajasthan, respondent no. I, for the cancelling and setting aside of its order dated April I, c\n\n1964 granting the contract for collecting royalty on building stones excavated from certain area to respondent no. 2, Dharti Dan Shramik Theka Sahkari Samiti Ltd., a cooperative society. The appeal arises in these circumstances.\n\nThe appellant offered the highest bid at the auction for the D grant .of royalty collection contract on January 21, 1964. Respondent no. 2 was also one of the bidders, but stopped after offering a bid of Rs. 33,000. The final bid of the appellant was for Rs. 42,200. The State Government made the order in favour of respondent no. 2 on an application made by it on March 5, 1964, stating therein that the appellant had not deposited 25 per cent of E the bid amount as security immediately after the completion of the auction in accordance with r. 36(7) of the Rajasthan Minor Mineral Concession Rules, 1959, hereinafter called the rules, and as per the terms and conditions of the Auction Notification and that it was prepared to take the royalty collection contract on the highest bid of Rs. 42,200. It was further stated in the application that responr dent no. 2 was a cooperative society of the labourers who themselves worked on the mines of the area and therefore in view of Government's policy it should receive preference to an individual bidder. It was further stated that the benefit accruing out of the contract of royalty collection would be shared by the labourers and workers themselves which would go a long way to improve G their socio-economic conditions and thus ultimately would ameliorate the conditions of the workers who were working hard in quarries since long.\n\nThe contention for the appellant is that the Government had merely to confirm the higheiit bid at the auction by way of forma- R lity and was not competent to sanction the contract in favour of someone who had not offered the highest bid at the auction.\n\nRule 34 of the rules provides that royalty collection contracts may be. granted by the Government by auction or tender for a maximum period of two years after which no extension was to be granted. The procedure for auction is provided by r. 36. Sub-rule\n\nNAND KISRORE V. STATE (Dayal, J.) 175\n\n(5) thereof provides that no bids shall be regarded as accepted unless confirmed by Government or the competent authority and sub-rule (7) provides that on completion of the auction the result will be announced and the provisionally selected bidder shall immediately deposit 25 per cent of the amount of bid for one year and another 25 per cent as security for due observance of the terms B and conditions of the lease or contract. It is admitted for the appellant that on completion of the auction he did not deposit 25 per cent of the bid as security in compliance with the provisions of sub-r. (7). He therefore lost whatever claim he could have had for the final acceptance of his bid by Government and therefore cannot question the grant of the contract to any other person by the C Government.\n\nThe appellant urges that he held such royalty collection contract for the year 1963-64 and had deposited Rs. 9,250 as security for the due performance of that contract. On February 12, 1964, over three weeks after the auction, he submitted an application to D the Mining Engineer, Jaipur, stating that he had been continuously taking contract for the last three years and that he was depositing Rs. 1,300 and that the balance of the security amount required, i.e.\n\nRs. 9 ,250 be ad justed against Rs. 9 ,250 with the Government in connection with the earlier contract. This letter was not replied to.\n\nE The request made in this letter could not possibly be accepted. The earlier contract was to continue up to March. 31, and the security money had to remain with the Government upto that date. It is only after March 31, that anything could be said with some definiteness as to how much of the security money in deposit would be available to the contractor. Paragraph 2 of the Form of Agree- • ment of Collection of Royalty on Minor Minerals, prescribed under the rules, and set out in the Schedule to the rules, states that the agreement shall remain in force for a period commencing from first April of a year and ending on March 31 of the next year on which the period of the contract would expire and that the security would be refunded on the termination of the contract.\n\nG Para 6 of the Form provides that for the due fulfilment of the terms\n\nand conditions of the contract the Contractor shall deposit 25 per cent of the contract money in advance as security which will be refunded on the termination of the contract. The appellant alleged that there was a practice of adjusting previous security amounts towards the security for the next contract.. The practice is denied B o.n behalf of respondent no. 1 and the practice against the provismns of the rules cannot be recognized as of any binding effect. It may be mentioned here that the representation which the appellant made to the State Government on April 6, 1964, made no reference\n\n!O his depositing the security by depositing Rs. 1,300 and by makmg a request for the adjustment of the balance from the securitv amount already in deposit and indicates that he too did not consider the request for adjustment of the amount acceptable.\n\nSUPREME\n\nCOURT\n\nREPORTS [1965] 3 s.c.n.\n\nThere is nothing in r. 36 of the rules which may lead to the A oonclusion that the Government has to accept the highest bid by formally confirming it or that it cannot grant the contract to any person other than one who had bid the highest. A bid is not regarded as accepted unless it is confirmed by Government. The Government has therefore discretion to confirm the bid or not to confirm it. Further, r. 59 provides for the relaxation of any provision of B the rules in the interest of mineral development or better working of mines.\n\nThere is the letter dated February 14, 1962 from the Director of Mines and Geology, to All Mining Engineers on the subject of encouragement of cooperative mines and states that cooperative societies ought to be encouraged for mining work also as per C directive of the Government of India. Respondent No. 2 addrssed a letter to the Director of Mines and Geology and referred to Government policy for the encouragement of cooperative societies in connection with royalty collection contracts. The order of Government dated April 1, 1964, after referring to the appellant's offering the highest bid, stated that the Government was satisfied D that the Society, respondent No. 2. was a suitable party for the grant of the said contract. The view takeri by the Government in preferring respondent No. 2 to the appellant for the grant of the contract cannot be said to be arbitrary or without any justification.\n\nThe cooperative socie.ty is of the labourers who work in the mines and it is obvious that any benefit arising out of the contract would E .. go to the labourers and thus improve their economic position. In view of the spirit underlying r. 59, Government could therefore relax any such rule which could in any way come in the way of its granting the contract to respondent no. 2.\n\nWe therefore hold that the Government was competent to ll' give the contract to respondent no. 2 it being not bound to accept the highest bid at the auction, though usually it accepts such bids.\n\nAnother consideration which is decisively against the appellant is that the contract for the collection of royalty for the year 1964-65 is shortly to come to an end and it would not be desirable, even if the appellant's contentions were acceptable, to interfere with 6: that contract.\n\nReference, in this connection, may be made to the decision of this Court in K. N. Guruswamy v. State of Mysore(') where the appellant was refused a writ solely on the ground that it would have been ineffective, the period of the impugned contract coming to an H end after about a fortnight of the order of this Court. That was a case where on merits the Court was of opinion that the writ should have been issued.\n\nWe therefore dismiss the appeal and order the parties to bear their own costs.\n\nAppeal dismissed.\n\n(') [1955] I.S.C.R. 305.", "total_entities": 28, "entities": [{"text": "NAND KISHORE SARAF", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "NAND KISHORE SARAF", "offset_not_found": false}}, {"text": "STATE OF RAJASTHAN AND ANOTHER", "label": "RESPONDENT", "start_char": 20, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "STATE OF RAJASTHAN AND ANOTHER", "offset_not_found": false}}, {"text": "February 24, 1965", "label": "DATE", "start_char": 52, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "NAND KISHORE SARAF\n\nSTATE OF RAJASTHAN AND ANOTHER\n\nFebruary 24, 1965\n\n(P. B. GAJENDRAGADKAR, C.J., RAGHUBAR DAYAL AND\n\nV. RAMASWAMI, JI.)"}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 72, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL", "label": "JUDGE", "start_char": 100, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 120, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "March 5, 1964", "label": "DATE", "start_char": 644, "end_char": 657, "source": "ner", "metadata": {"in_sentence": "2 made an application on March 5, 1964 to the Government stating therein that the appellant had not deposited 25 per cent of the bid amount as security within the time prescribed by Rule 36(~) of the Rajasthan Minor Mineral Concession Rules, 1959, and that it was prepared to toke the royalty collection contract on the highest bid as made by appellant."}}, {"text": "Rajasthan Minor Mineral Concession Rules, 1959", "label": "STATUTE", "start_char": 819, "end_char": 865, "source": "regex", "metadata": {}}, {"text": "Sarjoo Prasad", "label": "LAWYER", "start_char": 3214, "end_char": 3227, "source": "ner", "metadata": {"in_sentence": "1965] 3 s.o.e..\n\nSarjoo Prasad, /. B. Dadachanjl, 0."}}, {"text": "B. Dadachanjl", "label": "LAWYER", "start_char": 3232, "end_char": 3245, "source": "ner", "metadata": {"in_sentence": "1965] 3 s.o.e..\n\nSarjoo Prasad, /. B. Dadachanjl, 0."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 3250, "end_char": 3259, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder A Narain, for the appellant."}}, {"text": "Ravinder A Narain", "label": "LAWYER", "start_char": 3264, "end_char": 3281, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder A Narain, for the appellant."}}, {"text": "M. M. Tewari", "label": "LAWYER", "start_char": 3303, "end_char": 3315, "source": "ner", "metadata": {"in_sentence": "M. M. Tewari, K. K. Jain and R. N. Sachthey, for respondent No."}}, {"text": "K. K. Jain", "label": "LAWYER", "start_char": 3317, "end_char": 3327, "source": "ner", "metadata": {"in_sentence": "M. M. Tewari, K. K. Jain and R. N. Sachthey, for respondent No."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3332, "end_char": 3346, "source": "ner", "metadata": {"in_sentence": "M. M. Tewari, K. K. Jain and R. N. Sachthey, for respondent No."}}, {"text": "B. B. Tawak", "label": "LAWYER", "start_char": 3371, "end_char": 3382, "source": "ner", "metadata": {"in_sentence": "I.\n\nB. B. Tawak/ey and K. P. Gupta, for respondent No."}}, {"text": "K. P. Gupta", "label": "LAWYER", "start_char": 3390, "end_char": 3401, "source": "ner", "metadata": {"in_sentence": "I.\n\nB. B. Tawak/ey and K. P. Gupta, for respondent No."}}, {"text": "B\n\nRaghubar Dayal", "label": "JUDGE", "start_char": 3469, "end_char": 3486, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by B\n\nRaghubar Dayal, J. This appeal, on certificate granted by the Rajasthan High Court, is against the dismissal of the appellant's writ petition under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 3620, "end_char": 3628, "source": "regex", "metadata": {"statute": null}}, {"text": "Dharti Dan Shramik Theka Sahkari Samiti Ltd.", "label": "RESPONDENT", "start_char": 3926, "end_char": 3970, "source": "ner", "metadata": {"in_sentence": "2, Dharti Dan Shramik Theka Sahkari Samiti Ltd., a cooperative society."}}, {"text": "January 21, 1964", "label": "DATE", "start_char": 4142, "end_char": 4158, "source": "ner", "metadata": {"in_sentence": "The appellant offered the highest bid at the auction for the D grant .of royalty collection contract on January 21, 1964."}}, {"text": "Rajasthan Minor Mineral Concession Rules, 1959", "label": "STATUTE", "start_char": 4598, "end_char": 4644, "source": "regex", "metadata": {}}, {"text": "February 12, 1964", "label": "DATE", "start_char": 6946, "end_char": 6963, "source": "ner", "metadata": {"in_sentence": "On February 12, 1964, over three weeks after the auction, he submitted an application to D the Mining Engineer, Jaipur, stating that he had been continuously taking contract for the last three years and that he was depositing Rs."}}, {"text": "Jaipur", "label": "GPE", "start_char": 7055, "end_char": 7061, "source": "ner", "metadata": {"in_sentence": "On February 12, 1964, over three weeks after the auction, he submitted an application to D the Mining Engineer, Jaipur, stating that he had been continuously taking contract for the last three years and that he was depositing Rs."}}, {"text": "April 6, 1964", "label": "DATE", "start_char": 8789, "end_char": 8802, "source": "ner", "metadata": {"in_sentence": "It may be mentioned here that the representation which the appellant made to the State Government on April 6, 1964, made no reference\n\n!"}}, {"text": "February 14, 1962", "label": "DATE", "start_char": 9680, "end_char": 9697, "source": "ner", "metadata": {"in_sentence": "There is the letter dated February 14, 1962 from the Director of Mines and Geology, to All Mining Engineers on the subject of encouragement of cooperative mines and states that cooperative societies ought to be encouraged for mining work also as per C directive of the Government of India."}}, {"text": "Government of India", "label": "ORG", "start_char": 9923, "end_char": 9942, "source": "ner", "metadata": {"in_sentence": "There is the letter dated February 14, 1962 from the Director of Mines and Geology, to All Mining Engineers on the subject of encouragement of cooperative mines and states that cooperative societies ought to be encouraged for mining work also as per C directive of the Government of India."}}, {"text": "April 1, 1964", "label": "DATE", "start_char": 10176, "end_char": 10189, "source": "ner", "metadata": {"in_sentence": "The order of Government dated April 1, 1964, after referring to the appellant's offering the highest bid, stated that the Government was satisfied D that the Society, respondent No."}}]}
{"document_id": "1965_3_177_186_EN", "year": 1965, "text": "SBRI U. R. MA VJNKURVE\n\nTHAKOR MADHA VSINGHJI GAMBHIRSINGH AND\n\nOTHERS\n\nFebruary 24, 1965\n\nlii\n\n[P. B.\n\nGAJENDRAGIDKAR, C. J., M. HIDAYATULLAH, RAGHUBil\n\nDAYAL AND V. RAMASWAMI, JJ.]\n\nBqmbay Merged Territories and Areas (Jagirs Abolition) ACI, 1953, ss. 3, 5 and 9-J agirdars becoming occupants of Forest Areai 0 under the Bombay Land Revenue Code after Abolition Act-Wheth\"\"\n\ntheir rights included right to trees under s. 40 of the Code.\n\nThe first eleven respondents were J agirdars in a former state which was merged with the State of Bombay in June 1948. In August 1953, these respondents entered into an agreement with respondent No. 12, whereby, the latter could cut and remove all species of trees D from forest lands in 39 villages over which the first eleven respon.- dents claimed full proprietary rights.\n\nOn August, 1, 1954,. the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 came into force whereby all Jagirs in the merged territories in Bombay State were abolished. Under s. 6 of', the Act, the Jagirdars became 'occupants' in the lands including forest areas which were then in their possession.\n\nOn July 6, 1956 the State Government issued a notification under\n\n1. 34(A) of the Indian Forest Act, declaring all uncultivated lands in the 39 villages to be forests for the purposes of Ch. 5 of the Act.\n\nThereafter, h. March and July 1958, the Divisional Forest Officer wrote to the respondents stating, inter alia, that all the rights of the J agirdars having been abolished, the reserved species of trees on the lands belonged to the Stat~ Government and prohibiting them from cutting and removing the trees. The respondents thereupon filed a writ petition, seeking a direction to the appellants to canceL and to restrain from enforcing the orders contained in the letters of the Divisional Forest Officer.\n\nThe High Court allowed the petition, mainly on the ground that as the J agirdars became occupants within the meaning of the G Bombay Land Revenue Code of the forest lands under s. 5(1)(b) of the Abolition Act, they, and not the State Government, were entitled to the trees standing on them. In the appeal to the Supreme Court it was further contended on behalf of the respondents that as s. 9 of the Act vested some of the rights to trees in forest areas in the State Government, by implicati.On, al, j, the remaining rights belonged to the J agirdars.\n\nB HELD: Under s. 5(1)(b) of the Abolition Act, the only rights conferred on the J agirdars were the occupancy rights of the Forest lands; under s. 40 of the Bombay Revenue Code the rights of occupants did not include the right to cut and remove trees from the forest lands except in the case of villages of which the original survey and settlement has. been completed, whereupon the Government's rights to the trees, unless expressly or otherwise reserved, are deemed to have been conceded to the occupant. In the presen, t case the villages in question had admittedly not been surveyed and\n\nsettled and therefore the rights of the State Government to the trees A could not be deemed to have been conceded to the respondents as occupants. (184 E-185 E] 'Bys. 3 of the Abolition Act all Jagirs and all the rights of a Jagirdar were extinguished unless there was any express provision in the Act saving any right. It could not be said that because s. 9 of the Act reserved certain rights to trees of the State Government and by implication the J agirdars had all the other rights, there was B an express provision saving the rights of the Jagirdars within the meaning of s. 3. (185 F-Hl\n\nOVIL APPELLATE JURISDICTION: Civil Appeal No. 281 of 1962.\n\nAppeal by special leave from the judgment and order dated January 14, 1959 of the Bombay High Gourt in Special Civil Ap- C plication No. 2146 of 1958.\n\nS. G. Patwardhan and R. If. Dhebar, for the appellants.\n\nS. T. Desai, J. B. Dadachanji, 0. C. Mathur and Ravinder Ntfl'ain, for respondents no. l, 2, 4, 6, 10 and 12.\n\nThe Judgment of the Court was deliverecr by D Ramaswami, J. Respondents nos. l to 11 were the Jagirdars of Waghach State in former Sankeda Mewar in Reva Kantha Agency which now forms part of the State of Gujarat. They claimed that they were the full owners of all the land including forest areas in the said State and exercised full revenue power during their re- B gime. There were 39 villages in Waghach State in all of which there were forests. Except for the lands which were cultivated, all the lands in the said villages were forest lands. Respondents nos. l to 11 further claimed that they had full proprietary rights over the forest lands and enjoyed the produce as full owners thereof. By the agreement of merger dated June l, 1948 the State • of Waghach was merged with the State of Bombay with effect from June 10, 1948. On August 19, 1953, respondents l to 11 entered into an agreement with respondent no. 12 whereby respondent no. 12 became entitled to cut and remove all species of trees from the forest lands in the 39 villages for a period of ten years.\n\nOn August l, 1954, the Bombay Merged Territories and Areas a (Jagirs Abolition) Act, 1953 (Act XXXIX of 1954) came into force. This Act was passed with the object of abolishing jagirs in the merged territories and merged areas in the State of Bombay and providing for matters 'f>nsequential and incidental thereto.\n\nThe jagirs were classified, under the Act, into two categories, namely, (!) Proprietary jagirs and (2) Non-proprietary jilgirs. It B i3 the undisputed position in the present case that the jagirs fell in the category of proprietary jagirs. Under s. 5 of the Jagirs Abolition Acit the Jagirdars became occupants in the lands including forest areas which were in their possession before coming into force of the Act. On July 6, 1956 the State Goyernment issued a notification under s. 34(A) of the Indian Forest Act. d~\n\nlaring all uncultivated lands in_ the said 39 villages to be forests for\n\nMAVINKURVE • .MADliAVSINGHJI (Ramaswami, J.)\n\n17Y\n\nA the purposes of Ch. S of the Act On March 19, 1953 the Divisional Forest Officer wrote a letter to the respondents wherein he stated that all the rights of the jagirdars had been abolished by the Jagirs Abolition Act and that the reserved species of trees standing on the lands belonged to the State Government. He, therefore, asked the respondents to refrain from cutting teak and B Pancharao trees standing in the forest lands. On July 11, 1958. the Divisional Forest Officer wrote another letter to the respondents in which he stated that the reserved species of trees-teak, blackwood and sandalwood-vested in the State Government and. therefore, prohibited the respondents from cutting and removin_g the material from those trees. He also warned the respondents that 11 if they cut and removed the material of such trees they will be liable to prosecution. On the same date he wrote another Jetter to the respondents and informed them that the material obtained by cutting teak and blackwood trees which was lying in the foresl lands, had been advertised for sale. The respondents thereafter filed a Special Civil Application no. 2146 of 1958 in the High I> Court of Judicature at Bombay against the applicants for the grant of a writ in the nature of mandamus under Art. 226 of the Constitution directing them to cancel the orders contained in the letters of the Divisional Forest Officer dated March 19, 1958 and July 11, 1958 and to restrain the appellants from enforcing the said orders.\n\nThe High Court, by its judgment dated Jam1ary 14, 1959, allowed E the application of the respondents holding that after coming into force of the Jagirs Abolition Act the rights of the jagirdars in the forest lands and the trees were extinguished but at the same time jagirdars became occupants of the forest lands under s. 5(1)(b) of the said Act and they accordingly became entitled to the trees standing on the forest lands. The High Court held that all the :r trees standing on the forest lands belonged to the respondents l to 11 and the same did not belong to the State Government and consequently the State Government was not entitled to sell the material obtained by cutting the trees. Accordingly the High Court issued an injunction restraining the appellants from prevent ing the respondents from cutting any species of trees standing in Ci the forest lands in the villages in question and from removing and disposing of the produce thereof. The High Court further held that this order would be without prejudice to the right of the Stato Government, if they had any, to reserve any class of trees under s. 40 of the Land Revenue Code or under any other Jaw for the H time being in force, or to impose such restrictions as it may be lawful for them to do, under the provisions of the Indian Forest Act and the Rules made thereunder.\n\nThe present appeal is brought by special leave on behalf of the State of Gujarat and the other appellants against the order of the High Court of Judicature at Bombay in the Special Civil Application no. 2146 of 1958.\n\nSUPREME\n\nCOURT\n\nREPORTS [1965] 3 s.c.li.\n\nThe question presented for determination in this case is A' whether the trees standing' in the forest lands of the 39 villages in question belong to the jagirdars-respondents 1 to 11 or to the State Government and whether the respondents have a right to cut and remove the trees including the reserved species of trees from the forest lands of these villages.\n\nSection 3 of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, I 953 (hereinafter to be called the Jagirs Abolition Act) states:\n\n\"3, Notwithstanding anything conta; ned in any usage, grant, sanad, order, agreement or any law for the Cl time being in force, on and from the appointed date,-\n\n(i) all jagirs shall be deemed to have been abolished;\n\n(ii) save as expresly provided by or under the provisions of this Act, the right of a jagirdar to recover rent or assessment of land or to levy or recover D any kind of tax, cess, fe~. charge or any hak, and the right of reversion lapse, if any, vested in a jagir<lar, and all other rights of a jagirdar or of any person legally subsisting on the said date, in respect of a village as incidents of jagir shall be deemed to have been extinguished.\" ll\n\nUnder s. 4 all jagir villages are made liable to the payment of land revenue in accordance with the provisions of the Code and the rules made thereunder, and the provisions of the Code and the rules relating to unalienated lands are made applicable to such villages. Section 5 (!) (b) provides a~ follows: 1 \"5. (i) In a propnefary jagir village,- .................. ··················· ·················· ············\n\n(b) in the case f land other than Gharkhed land, which is in the actual possession of the jagirdar or in the possession of person other than a perma- G nent holder holding through or from the jagirdar, such jagirdar,\n\nshall be primarily liable to the State Government for the payment of land revenue, due in res- H pect of such land and shall be entitled to all the rights and shall be liable to all the obligations in respect of such land as an occupant under the Code or any other law for the time being in force: '''''''''''''' oooooooooooooo••o••••••••.•••••••••o•oooooooooouooooo••••••••\n\nMAVINKURVE '!I. MADHAVSINGHJI (Ram,, swami, J.) 181\n\nA Section 8 of the Jagirs Abolition Act states:\n\n\"8. All public roads, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours, creeks below high water mark, and of rivers, streams, nalas, lakes, wells and tanks and all canals and water courses, and all standing and fiow- B ing water, all unbuilt village site lands, all waste lands and all uncultivated lands (excluding lands used for building or oth, er non-agricultural purposes) which are situate within the limits of any jagir village, shall, except in so far as any rights of any person other than the jag; rdar may be established in or over the same and ex- C cept as may otherwise be provided by any law for the time being in force, vest in and shall be deemed to be, with all rights in or over the same or appertaining thereto, the property of the State Government and all rights held by a jagirdar in such property shall be deemed to have been extinguished and it shall be lawful for D the Collector, subject to the general or special orders of the State Government, to dispose them of as he deems fit, subject always to the rights of way and other rights of the public or of individuals legally subsisting.\n\n\" Section 9 reads:\n\n\"9. The rights to trees specially reserved under the Indian Forest Act, 1927, or any other law for the time being in fore. except those the ownership of which has been transferred by the State Government under any contract, grant or law for the time being in force, shall vest in the State Government and nothing in this Act shall in any way affect the right of the State Government to apply the.provisions of the Indian Forest Act, 1927, as in force in the pre-Reorganisation State of Bombay, excluding the transferred territories to forests in a Jagir Village.\" ·················· ·················· ................. , ........... .\n\nSection 10 provides as follows :\n\n\"10. Noth; ng in this Act or any other law for the time being in force, shall be deemed to affect the rights of any jagirdar subsisting on the appointed date to mines or mineral products in a jagir village granted or rocngnised under any contract, grant or law for the time being in force or by custom or usage.\" Section 11 provides for compensation to Jagirdars in the manner provided therein.\n\nSection 2(2) of the Jagirs Abolition Act states that any word or expression which is defined in the Code and not defined in the Act shall be deemed to have the meaning given to it in the Code.\n\nSection 2(1)(ii) of the J agirs Abolition Act defines the 'Code' to A mean 'the Bombay Land Revenue Code, 1879'.\n\nSection 3(16) of the Bombay Land Revenue Code defines \"Occupant\" as a holder in actual possession of unalienated land, other than a tenant: provided that where the holder in actual possession is a tenant, the landlord or superior landlord, as the case may be, shall be deemed to be occupant.. Section 3(17) defines B\n\n\"Occupancy\" to mean a portion of land held by an occupant.\n\nUnder s. 3(19) of the Code \"Occupation\" means possession. Section 40 of the Bombay Land Revenue Code provides as follows:\n\n\"40. In villages, or portions of villages, of which the original survey settlement has been completed before the passing of this Act, the right of the Government to all 0 trees in unalienated land, except trees reserved by the Government or by any survey officer, whether by ex press order made at, or about the time of such settlement, or under any rule, or 'general order in force at the time of such settlement, or by notification made and published at, or at any time cafter, such settlement, D shall be deemed to have been conceded to the occupant. But in the case of settlement completed before the passing of Bombay Act l of 1865 this provision shall not apply to teak, black-wood or sandal-wood trees.\n\nThe right c; if the Government to such trees shall not be E deemed to have been conceded, except by clear and express words to that effect. • \"In the case of villages or portions of villages of which the original survey settlement shall be completed after the passing of this Act, the right of the Government to all trees in unalienated land shall be deemed to be conceded to the occupant of such land F j:lltcept in so far as any such rights may be reserved by the Government, or by any survey officer on behalf of the Government, either expressly at or about the time of such settlement, or generally by notification made and published at any time previous to the completion of the survey settlement of the district in which such village or portion of a viJlige is situate.\n\nG \"When permission to occupy land has been, o~ shall hereafter be granted after the completion of the survey settlement of the village or portion of a village in which such land is situate, the said permission shall be deemed to include the concession of the right of the Government to all trees growing on that land which B may not have been, or which shall not hereafter be, expressly reserved at the time of granting such perm; ssion, or which may not have been reserved, under any of the foregoing provisions of this section, at or about the time of the original survey settlement of the said village or portion of a village.\n\n\"Explanation.-In the s.econd paragrph of th.is section, e expression \"In the case of villages or portions of villages of wh.K:b\n\nMAVL~UBVE v. MADHAVSINGHJI (Ramaswami, J.) 183\n\nA the original survey settlement shall be completed after the passing of this Act\" shall include cases where the work of the original survey settlement {eferred to therein was undertaken before the\n\npassing of this Act as well as cases where the work of an original survey settlement' may he undertaken at any time after the passing of this Act.\" B\n\nSection 41 states:\n\n\"41. The right to all trees specially reserved under the provision of the lasf preceding section, and to all trees, brushwood, jungle, or other natural product growing on land set apart for forest reserves under section 32 of Bombay Act I of 1865 or section 38 of this Act, and to all trees, brushwood, jungle or other natural product, wherever growing, except in so far as the same may be the property of individuals or of aggregates of individuals capable of holding property, vests in the State Government and such trees, brushwood, jungle or other natural product shall be preserved or disposed of in such manner as the State Government may from time to time direct.\"\n\nSection 65 states :\n\n\"65. An occupant of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenant, agents, or other legal representatives, to erect farm-buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more convenient use for the purpose aforesaid.\n\nBut, if any occupant wishes to use his holding or any part thereof for any other purpose the Collector's per mission shall. in the first place be applied for by the occupant.\n\nThe Collector, on receipt of such application,\n\n(a) shall send to the applicant a written acknowledgment of its receipt, and\n\n(b) may, after due inquiry, either grant or refuse permission applied for;\n\nWhen any such land is thus permitted to be used for purpose unconnected with agriculture it shall be lawful for Collector, subject to the general order of the State Govern ment to require the payment of a fine in addition to any new assessment which may be leviable under the provisions of section 48.\"\n\n184 Ul'REME\n\nCOURT REPOR'rS [1965] 3 s.c.R.\n\nSection 68 states that the occupant's rights are cond; tional, and is A to the following effect:\n\n\"68. An occupant is entitled to the use and occupation of his land for the period, if any, to which his tenure is limited, or if the period is unlimited, or a survey settlement has been extended to the land, in perpetuity conditionally on the payment of the amounts due on ac, B count of the land revenue for the same, according to the provisions of this Act, or of any rules made under this Act, or of any other law, for the time being in force, and on the fulfilment of any other terms or conditions lawfully annexed to his tenure;\n\n\" .......................................... ; .......... . c\n\nThe High Court expressed the view that under s. 3 of the Jagirs Abolition Act the rights of the jagirdars in the forest lands and the trees which grew upon them were extingu; shed. The High Court further held that with the coming into force of the Jagirs D Abolition Act jagirdars became the occupants in the forest lands under s. 5(l)(b) of that Act and the respondents 1 to 11 become, therefore, entitled to the trees standing on the forest lands.\n\nIn our opinion, the view expressed by the H; gh Court is erroneous and must be reversed. It is manifest that under s. 3 of the Jagirs Abolition Act all jagirs were abolished and all the rights of the E jagirdars were extinguished, save those rights wh; ch are expressly provided by other provisions of the Act itself. It is also manifest that under s. 5(l)(b) of the Act the only rights conferred on the jagirdars are the rights of occupancy of the forest lands. In our opinion, the rights of the occupants under the Bombay Land Revenue Code do not include the right to cut and remove the trees r from the forest lands. The reason is that the 36 villages in dispute have not been surveyed or settled and until there is completion of the survey and settlement there is no question of concession on the part of the State Government of the right to the trees in favour of the occupants. Section 40 of the Bombay Land Revenue Code provides that in the case of villages of which the original G survey settlement has been completed before the passing of the Act, the right of the Government to all trees in unalienated land, except trees reserved by the Government or by any survey officer, whether by express order made at, or about the time of such settlement, or under any rule, or general order in force at the time of such settlement, or by not; fication. made and published at, or H at any time after, such settlement, shall be deemed to have been conceded to the occupant. The second para of s. 40 deals with concession of Government rights to trees in case of settlements completed after the passing of the Act. The second para states that in the case of villages or portions of villages of which the original survey settlement shall be completed after the passing of the Act, the right of the Government to all trees in unalienated land shall\n\nMAVINKl'RVE v. MADHAVSINGHJI (Ramaswami, J.) 185\n\nA be deemed to be conceded to the occupant of such land except in so far as any such rights may be reserved by the Government, or by any survey officer on behalf of the Government, either expressly at or about the time of such settlement, or generally by notification made and published at any -time previous to the completion of the survey settlement. The third paragraph of s. 40 relates to the B concession of Government rights to trees in case of land taken up after completion of settlement. The section states that when permission to occupy land has been granted after the completion of the survey settlement of the village, the said permission shall be deemed to include the concession of the right of the Government to all trees growing on that land which may not have been, or which C shall not hereafter be, expressly reserved at the time of granting\n\n''-!Ch permission. In the present case, the 36 villages in question have admittedly not been surveyed and settled and the necessary conclusion to be drawn is that the rights of the State Government (') tres cannot be deemed to be conceded to the occupants of the land. The assumption is implicit in s. 40 of the Bombay Land D Revenue Code that all the trees standing and growing on the lands\n\nwith the occupants belong ta the State Government and not to the\n\nocup:nts and until there is a survey and settle; nent of the village the question of concession on the part of the State Government of rights to the trees does not arise. In other words, until there is survey and settlement of the land there is no impliction in favour of E respc\"11ents I ta 11 that they had concession of the rights of the\n\nGo-; crnmcnt to the trees standing on the forest lands.\n\nOn behalf of the respondents Mr. S.T. Desai referred to s. 9 of the Jagirs Abolition Act and stressed the argument that the right of trees ment'oned in that section alone vested in the State F Government and there was no other reservation in the Act or any other law, in favour of the State Government. It was contended that by implication it must be held that the jagirdars had rights to the trees in the forest areas apart from those mentioned in s. 9 of the Act. We do not accept th 's argument as correct. Section 3 of the Act provide1 for abolition of jagirs and under that section G all jagirs shall be deemed to have been abolished on and from the appointed date i.e .. August !. 1954 and.all rights of a Jagirdar, in respect of a jagir v'llage as incidents of jagir, shall be deemed to have been extin§!uished by virtue of the section unless there is express provision in the Act saving such right. In our opinion, s. 9 of the Ja~'rs Abolition Act is not an express provision saving the H right of the jagirdars with regard to the trees and the argument of Mr. Desai must be rejected on this point. Our view is supported by the language of s. 10 of the Jagirs Abolition Act which expressly saves the right of the jag'rdar to mines or mineral products in a jagir village subsisting on the appointed day. There is no provision in th~ Jagirs Abolit'on Act corresponding to s. 10 with regard to the saving of the right to the trees in favour of the jagirdars. We are accordingly of the opinion that after coming into\n\nforce of the Jagirs Abolition Act respondents 1 to 11 becam\\l oo- A cupants in respect of the forest lands in the 36 villages and the only rights which they have are those of occupants under the pr<>- visions of the Bombay Land Revenue Code and such rights do not include the right to cut and remove the trees from the forest Iaiids of the villages in question.\n\nIn our opinion, the High Court was in error in holding that B\n\nthe respondents were entitled to cut and remove all species of trees standing in the forest lands of the 36 villages in question. We accordingly allow this appeal, set aside the order of the High Court dated January 14, 1959 in Special Civil .\\pplication no. 2146 'of 1958 and order that the Special Civil Application should be disc missed. The appellants are entitled to costs both in this Court and in the High Court.\n\nAppeal allowed.", "total_entities": 90, "entities": [{"text": "SBRI U. R. MA VJNKURVE", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "SBRI U. R. MAVINKURVE", "offset_not_found": false}}, {"text": "THAKOR MADHA VSINGHJI GAMBHIRSINGH AND\n\nOTHERS", "label": "RESPONDENT", "start_char": 24, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "THAKOR MADHAVSINGHJI GAMBHIRSINGH AND OTHERS", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 127, "end_char": 142, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "DAYAL", "label": "JUDGE", "start_char": 154, "end_char": 159, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 164, "end_char": 181, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "ss. 3, 5 and 9", "label": "PROVISION", "start_char": 250, "end_char": 264, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 420, "end_char": 425, "source": "regex", "metadata": {"statute": null}}, {"text": "August, 1, 1954", "label": "DATE", "start_char": 820, "end_char": 835, "source": "ner", "metadata": {"in_sentence": "On August, 1, 1954,."}}, {"text": "Bombay State", "label": "GPE", "start_char": 971, "end_char": 983, "source": "ner", "metadata": {"in_sentence": "the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 came into force whereby all Jagirs in the merged territories in Bombay State were abolished."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 1006, "end_char": 1010, "source": "regex", "metadata": {"statute": null}}, {"text": "July 6, 1956", "label": "DATE", "start_char": 1135, "end_char": 1147, "source": "ner", "metadata": {"in_sentence": "On July 6, 1956 the State Government issued a notification under\n\n1."}}, {"text": "Indian Forest Act", "label": "STATUTE", "start_char": 1214, "end_char": 1231, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bombay Land Revenue Code", "label": "STATUTE", "start_char": 1970, "end_char": 1994, "source": "regex", "metadata": {}}, {"text": "s. 5(1)(b)", "label": "PROVISION", "start_char": 2021, "end_char": 2031, "source": "regex", "metadata": {"linked_statute_text": "Bombay Land Revenue Code", "statute": "Bombay Land Revenue Code"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 2156, "end_char": 2169, "source": "ner", "metadata": {"in_sentence": "In the appeal to the Supreme Court it was further contended on behalf of the respondents that as s. 9 of the Act vested some of the rights to trees in forest areas in the State Government, by implicati."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 2232, "end_char": 2236, "source": "regex", "metadata": {"linked_statute_text": "Bombay Land Revenue Code", "statute": "Bombay Land Revenue Code"}}, {"text": "s. 5(1)(b)", "label": "PROVISION", "start_char": 2412, "end_char": 2422, "source": "regex", "metadata": {"linked_statute_text": "Bombay Land Revenue Code", "statute": "Bombay Land Revenue Code"}}, {"text": "s. 40", "label": "PROVISION", "start_char": 2542, "end_char": 2547, "source": "regex", "metadata": {"linked_statute_text": "Bombay Land Revenue Code", "statute": "Bombay Land Revenue Code"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 3344, "end_char": 3348, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3567, "end_char": 3571, "source": "regex", "metadata": {"statute": null}}, {"text": "S. G. Patwardhan", "label": "LAWYER", "start_char": 3796, "end_char": 3812, "source": "ner", "metadata": {"in_sentence": "S. G. Patwardhan and R. If."}}, {"text": "R. If. Dhebar", "label": "LAWYER", "start_char": 3817, "end_char": 3830, "source": "ner", "metadata": {"in_sentence": "S. G. Patwardhan and R. If."}}, {"text": "S. T. Desai", "label": "JUDGE", "start_char": 3853, "end_char": 3864, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, J. B. Dadachanji, 0.", "canonical_name": "S. T. Desai"}}, {"text": "B. Dadachanji", "label": "LAWYER", "start_char": 3869, "end_char": 3882, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, J. B. Dadachanji, 0."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 3887, "end_char": 3896, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Ntfl'ain, for respondents no."}}, {"text": "Ravinder Ntfl'ain", "label": "LAWYER", "start_char": 3901, "end_char": 3918, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Ntfl'ain, for respondents no."}}, {"text": "D Ramaswami", "label": "JUDGE", "start_char": 4008, "end_char": 4019, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was deliverecr by D Ramaswami, J. Respondents nos.", "canonical_name": "D Ramaswami"}}, {"text": "June l, 1948", "label": "DATE", "start_char": 4692, "end_char": 4704, "source": "ner", "metadata": {"in_sentence": "By the agreement of merger dated June l, 1948 the State • of Waghach was merged with the State of Bombay with effect from June 10, 1948."}}, {"text": "State • of Waghach", "label": "ORG", "start_char": 4709, "end_char": 4727, "source": "ner", "metadata": {"in_sentence": "By the agreement of merger dated June l, 1948 the State • of Waghach was merged with the State of Bombay with effect from June 10, 1948."}}, {"text": "State of Bombay", "label": "ORG", "start_char": 4748, "end_char": 4763, "source": "ner", "metadata": {"in_sentence": "By the agreement of merger dated June l, 1948 the State • of Waghach was merged with the State of Bombay with effect from June 10, 1948."}}, {"text": "June 10, 1948", "label": "DATE", "start_char": 4781, "end_char": 4794, "source": "ner", "metadata": {"in_sentence": "By the agreement of merger dated June l, 1948 the State • of Waghach was merged with the State of Bombay with effect from June 10, 1948."}}, {"text": "August 19, 1953", "label": "DATE", "start_char": 4799, "end_char": 4814, "source": "ner", "metadata": {"in_sentence": "On August 19, 1953, respondents l to 11 entered into an agreement with respondent no."}}, {"text": "August l, 1954", "label": "DATE", "start_char": 5038, "end_char": 5052, "source": "ner", "metadata": {"in_sentence": "On August l, 1954, the Bombay Merged Territories and Areas a (Jagirs Abolition) Act, 1953 (Act XXXIX of 1954) came into force."}}, {"text": "Bombay", "label": "GPE", "start_char": 5278, "end_char": 5284, "source": "ner", "metadata": {"in_sentence": "This Act was passed with the object of abolishing jagirs in the merged territories and merged areas in the State of Bombay and providing for matters 'f>nsequential and incidental thereto."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 5597, "end_char": 5601, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(A)", "label": "PROVISION", "start_char": 5831, "end_char": 5839, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Forest Act", "label": "STATUTE", "start_char": 5847, "end_char": 5864, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 5974, "end_char": 5983, "source": "ner", "metadata": {"in_sentence": "d~\n\nlaring all uncultivated lands in_ the said 39 villages to be forests for\n\nMAVINKURVE • .MADliAVSINGHJI (Ramaswami, J.)\n\n17Y\n\nA the purposes of Ch.", "canonical_name": "D Ramaswami"}}, {"text": "July 11, 1958", "label": "DATE", "start_char": 6430, "end_char": 6443, "source": "ner", "metadata": {"in_sentence": "On July 11, 1958."}}, {"text": "High I> Court of Judicature at Bombay", "label": "COURT", "start_char": 7151, "end_char": 7188, "source": "ner", "metadata": {"in_sentence": "2146 of 1958 in the High I> Court of Judicature at Bombay against the applicants for the grant of a writ in the nature of mandamus under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 7268, "end_char": 7276, "source": "regex", "metadata": {"statute": null}}, {"text": "March 19, 1958", "label": "DATE", "start_char": 7397, "end_char": 7411, "source": "ner", "metadata": {"in_sentence": "226 of the Constitution directing them to cancel the orders contained in the letters of the Divisional Forest Officer dated March 19, 1958 and July 11, 1958 and to restrain the appellants from enforcing the said orders."}}, {"text": "Jam1ary 14, 1959", "label": "DATE", "start_char": 7532, "end_char": 7548, "source": "ner", "metadata": {"in_sentence": "The High Court, by its judgment dated Jam1ary 14, 1959, allowed E the application of the respondents holding that after coming into force of the Jagirs Abolition Act the rights of the jagirdars in the forest lands and the trees were extinguished but at the same time jagirdars became occupants of the forest lands under s. 5(1)(b) of the said Act and they accordingly became entitled to the trees standing on the forest lands."}}, {"text": "s. 5(1)(b)", "label": "PROVISION", "start_char": 7814, "end_char": 7824, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 8607, "end_char": 8612, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Forest Act", "label": "STATUTE", "start_char": 8787, "end_char": 8804, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "High Court of Judicature at Bombay", "label": "COURT", "start_char": 8968, "end_char": 9002, "source": "ner", "metadata": {"in_sentence": "The present appeal is brought by special leave on behalf of the State of Gujarat and the other appellants against the order of the High Court of Judicature at Bombay in the Special Civil Application no."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 9458, "end_char": 9467, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 10278, "end_char": 10282, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5", "label": "PROVISION", "start_char": 10539, "end_char": 10548, "source": "regex", "metadata": {"statute": null}}, {"text": "I. MADHAVSINGHJI", "label": "JUDGE", "start_char": 11299, "end_char": 11315, "source": "ner", "metadata": {"in_sentence": "I. MADHAVSINGHJI (Ram,, swami, J.) 181\n\nA Section 8 of the Jagirs Abolition Act states:\n\n\"8."}}, {"text": "Section 8", "label": "PROVISION", "start_char": 11341, "end_char": 11350, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9", "label": "PROVISION", "start_char": 12570, "end_char": 12579, "source": "regex", "metadata": {"statute": null}}, {"text": "rights to trees specially reserved under the Indian Forest Act, 1927", "label": "STATUTE", "start_char": 12596, "end_char": 12664, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Forest Act, 1927", "label": "STATUTE", "start_char": 13002, "end_char": 13025, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 10", "label": "PROVISION", "start_char": 13225, "end_char": 13235, "source": "regex", "metadata": {"linked_statute_text": "the Indian Forest Act, 1927", "statute": "the Indian Forest Act, 1927"}}, {"text": "Section 11", "label": "PROVISION", "start_char": 13572, "end_char": 13582, "source": "regex", "metadata": {"linked_statute_text": "the Indian Forest Act, 1927", "statute": "the Indian Forest Act, 1927"}}, {"text": "Section 2(2)", "label": "PROVISION", "start_char": 13655, "end_char": 13667, "source": "regex", "metadata": {"linked_statute_text": "the Indian Forest Act, 1927", "statute": "the Indian Forest Act, 1927"}}, {"text": "Section 2(1)(ii)", "label": "PROVISION", "start_char": 13849, "end_char": 13865, "source": "regex", "metadata": {"linked_statute_text": "the Indian Forest Act, 1927", "statute": "the Indian Forest Act, 1927"}}, {"text": "Bombay Land Revenue Code, 1879", "label": "STATUTE", "start_char": 13929, "end_char": 13959, "source": "regex", "metadata": {}}, {"text": "Section 3(16)", "label": "PROVISION", "start_char": 13963, "end_char": 13976, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Land Revenue Code, 1879", "statute": "the Bombay Land Revenue Code, 1879"}}, {"text": "Section 3(17)", "label": "PROVISION", "start_char": 14256, "end_char": 14269, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Land Revenue Code, 1879", "statute": "the Bombay Land Revenue Code, 1879"}}, {"text": "s. 3(19)", "label": "PROVISION", "start_char": 14347, "end_char": 14355, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Land Revenue Code, 1879", "statute": "the Bombay Land Revenue Code, 1879"}}, {"text": "Section 40", "label": "PROVISION", "start_char": 14399, "end_char": 14409, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Land Revenue Code, 1879", "statute": "the Bombay Land Revenue Code, 1879"}}, {"text": "case of settlement completed before the passing of Bombay Act", "label": "STATUTE", "start_char": 15029, "end_char": 15090, "source": "regex", "metadata": {}}, {"text": "Section 41", "label": "PROVISION", "start_char": 17110, "end_char": 17120, "source": "regex", "metadata": {"statute": null}}, {"text": "section 32", "label": "PROVISION", "start_char": 17342, "end_char": 17352, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Act I of 1865", "label": "STATUTE", "start_char": 17356, "end_char": 17376, "source": "regex", "metadata": {}}, {"text": "section 38", "label": "PROVISION", "start_char": 17380, "end_char": 17390, "source": "regex", "metadata": {"linked_statute_text": "Bombay Act I of 1865", "statute": "Bombay Act I of 1865"}}, {"text": "Section 65", "label": "PROVISION", "start_char": 17803, "end_char": 17813, "source": "regex", "metadata": {"linked_statute_text": "Bombay Act I of 1865", "statute": "Bombay Act I of 1865"}}, {"text": "section 48", "label": "PROVISION", "start_char": 18836, "end_char": 18846, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 68", "label": "PROVISION", "start_char": 18895, "end_char": 18905, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 19636, "end_char": 19640, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(l)(b)", "label": "PROVISION", "start_char": 19919, "end_char": 19929, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 20157, "end_char": 20161, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(l)(b)", "label": "PROVISION", "start_char": 20391, "end_char": 20401, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 40", "label": "PROVISION", "start_char": 20926, "end_char": 20936, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 21535, "end_char": 21540, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 22315, "end_char": 22320, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 23100, "end_char": 23105, "source": "regex", "metadata": {"statute": null}}, {"text": "S.T. Desai", "label": "JUDGE", "start_char": 23692, "end_char": 23702, "source": "ner", "metadata": {"in_sentence": "On behalf of the respondents Mr. S.T. Desai referred to s. 9 of the Jagirs Abolition Act and stressed the argument that the right of trees ment'oned in that section alone vested in the State F Government and there was no other reservation in the Act or any other law, in favour of the State Government.", "canonical_name": "S. T. Desai"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 23715, "end_char": 23719, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 24108, "end_char": 24112, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 24169, "end_char": 24178, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 24582, "end_char": 24586, "source": "regex", "metadata": {"statute": null}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 24728, "end_char": 24733, "source": "ner", "metadata": {"in_sentence": "In our opinion, s. 9 of the Ja~'rs Abolition Act is not an express provision saving the H right of the jagirdars with regard to the trees and the argument of Mr. Desai must be rejected on this point."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 24807, "end_char": 24812, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 25037, "end_char": 25042, "source": "regex", "metadata": {"statute": null}}, {"text": "force of the Jagirs Abolition Act", "label": "STATUTE", "start_char": 25181, "end_char": 25214, "source": "regex", "metadata": {}}, {"text": "January 14, 1959", "label": "DATE", "start_char": 25815, "end_char": 25831, "source": "ner", "metadata": {"in_sentence": "We accordingly allow this appeal, set aside the order of the High Court dated January 14, 1959 in Special Civil .\\pplication no."}}]}
{"document_id": "1965_3_17_26_EN", "year": 1965, "text": "SRI-LA.SRI SUBRAMANIA DESIKA GNANASAMBANDA\n\nPANDARASANNADHI\n\nSTATE OF MADRAS AND ANOTHER\n\nFebruary 10, 1965\n\n[P. B. GAJENDRAGADKAR, C J., M. HIDAYATULLAH,\n\nJ. C. SHAH\n\nANDS. M. S!KRI, JI.]\n\nMadras Hindu Religious and Charitable Endowments Act, 1951, <Mad. Act 19 of 1951), s. 64(4)-0rder under whether quasi-iudicial- Reasonable opportunity, whether necessary.\n\nBy a notification issued in 1937 the respondent State of Madras had made Ch. VI-A of the Hindu Religious Endowments Act, 1926, appl'cable to the Thiyagarajaswami temple at Tiruvarur. In 1956 the aforesaid notification was extended for a period of five years beginning on September 30, 1956.\n\nThis was done in exercise of powers under s. 64(4)· of the Madras Hindu Religious and Charitable Endowments Act, 1951. The appellant challenged the issue of the notifica tion under s. 64(4) in a writ petition before the High Court. At the hearing it was urged that the impugned notification was invalid as it had been passed without giving a reasonable opportunity to the appellant to show cause against it. The High Court while accepting this contention, nevertheless refused to issue the writ prayed for because: (1) the said plea had not been taken in the writ petition and (2) the period for which the notification had been extended was shortly due to expire. The appellant came to the Supreme Court with certificate of fitness.\n\n\"\" It was contended on behalf of the appellant that the two reasons given by the High Court for not issuing a writ were wrong. The respondent State on 'he other hand contended that no quasi-judicial enquiry was necessary for extending an existing notification under s. 64(4) although such an enquiry was necessary before issuing a notification for the first time under s. 64(3).\n\nHELD: (i)\" Whether for issuing a notification under 64(3) or for extending an ex'sting notification under s. 64(4) the process of dedsion is the same. In either case the Government had to satisfy itself whether supervision by the Executive Officer under the notification is required for public good. The Government cannot legitimately and satisfactorily consider the question as to whether the notification should be cancelled without hearing the party asking for cancellation; nor can it legitimately and reasonably decide to extend the notification without hearing the trustee. Circumstances could arise after .the issue of the first notification which would help the Trustee to claim that the notification should either be cancelled or should not be extended, The nature of the order which can be passed under s. 64(4) and its effect on the rights of the Trustee are exactly similar to the order which can be passed under s. 64(3). rz5 A-E]\n\nThe High Court was therefore right in holding that it was obligatory on the respondent State as a matter of natural just'ce to give notice to the appellant before the impugned nOlification was passed by it. r25El\n\nShri Radeshyam Khare & Anr. v. State of Madh11a Pradesh and Ors. [1959] S.C.R. 1440, distinguished.\n\nIii) Although the plea of denial of natural justice had not been A taken by the appellant in his writ petition, it had been taken in the rejoinder, and the respondent thereafter had full notice of the said plea. Therefore the first reason given by the High Court for refusing the writ was wrong. f25G-Hl\n\n(iii) The High Court ignored the fact that before it delivered its judgment a new Act had come into force, namely, Madras Act XXII of 1959, whereby the life of the impugned notification had been n extended. Therefore the second reason which weighed with the High Court in not issuing a writ in favour of the appellant, that the impugned notification would remain in operation for a very short period after it delivered its judgment, was also wrong. f26C-El\n\nCIVIL APPELLATE JURISDICTION: CIVIL APPEAL No. 560 OF 1964.\n\nAppeal from the judgment and order dated August I l , I 961 c of the Madras High Court in Writ Petition No. 295, of 1958.\n\nA .. V. Viswanatha Sastri, R. Thiagarajan for R. Ganapathy Iyer, for the petitioner.\n\nA. Ranganadham Chetty and A. V. Rangam, for the respondents.\n\nD The Judgment of the Court was delivered by Gajendragadkar, C.J'. Or August 4, 1956, the Governor of Madras issued a notification in exercise of the p.owers conferred on him by sub-section (4) of s. 64 of the Madras Hindu Religious and Charitable Endowments Act. 1951 (Madras Act XIX of 1951) directing that notification No. 638, dated the 25th May, 1937, re- E lating to Sri Tbiyagarajaswami Temple, Tiruvarur, Nagapattanam Taluk, Tanjor District, be continued for a period of five years from September 30, 1956: The earlier notification which was thus continued had itself been issued by the respondent State of Madras in exercise of the powers conferred on it by clause (b) of sub-section (5) of s.65A of the Hindu Religious Endowments Act, 1926 F (Madras Act II of 1927). declaring that the temple in question and the specific endowments attached thereto shall be subject to the provisions of Chapter VI-A of the said Act. In other words, the earlier notification which brought the temple of Sri Thiyagarajaswami at Tiruvarur under the purview of the earlier Madras Act has been extended by the notification issued on 4th August, 1956, G for a further period of five years. By a writ pet; tion filed by the appellant, Sri-Ia-Sri Subramania Desika Gnana Sambanda Pandarasannadhi, Hereditary Trustee of the Rajan Kattalai of the temple in question, in the High Court of Madras the validity of this latter notification was challenged. The High Court has rejected the pleas raised by the appellant in support of his case that the impugn- B: ed notification is invalid, and has dismissed the writ petition filed by him. It is against this order that the appellant has come to this Court with a certificate granted by the High Court. The controversy between the parties as it has been presented before us in appeal, really lies within a very narrow compass, but in order to appreciate the points raised for our decision, it is. eCl'.ssary to set out very briefly the background of the present htigat10n.\n\nSUBRAMANIA v. STATE CF MADRAS (Gojemlragadkar, c. J.) 19\n\nA In the town of Tiruvarur in Thanjavur Dist. there is an ancient temple. The Presiding Deity is Sri Thyagarajaswami. A distinguishing feature ilf this temple is that apart from an allowance called 'the Mohini allowance', there is no other property which can be treated as devoted for its general maintenance. A large number of specific endowments called 'Kattalais' with specific reference to B special services in the temple, its festivities and several charities in glorification of the principal deity, have however been made in respect of this temple. It is said that there are 13 such Kattalais, the important amongst them being Rajan Kattalai, Ulthurai Kattalai, Abisheka Kattalai and Annadanam Kattalai. In respect of these Kattalais, large endowments have been made. According C to the appellant, these endowments were made by the Indian Rulers who ruled Thanjavur before the establishment of the British Rule. It appears that the .management of each one of these Kattalais is vested in a certain Trustee or Trustees hereditarily. The trustee-,\n\nship of Rajan Kattalai vests in the head of the Dharmapuram mutt in the Thanjavur district. The Dharmapuram mutt itself has large D endowments of lands in Thanjavur and Tirunelveli districts. The head of this mutt is known as Pandarasannadhi and under his management there are about 27 temples. Having regard to the nature of the duties of the head of a mutt of this importance and magnitude, it is not possible for the Pandarasannadhi to supervise all the temples personally, and so, Deputies are appointed on his E behalf to supervise and look after the management of the various institutions. With regard to the services connected with the Rajan Kattalai in Sri Thyagarajaswami temple at Thiruvarur, the head of Dharmapuram mutt generally functions through a deputy known as Kattalai Thambiran.\n\nF Ordinarily, a Kattalai is a specific endowment in respect of which it would be competent for the founder to prescribe the line of trustees for its management, and so, the property endowed for the performance of the Kattalai in question cannot be held to be transferred in trust to the trustee vesting the legal estate therein in him; such legal estate would vest in the deity itself. Thus, the position G of the Kattalai trustee would normally be no more than that of a manager of a Hindu Religious Endowment. It, however, appear~\n\nthat Kattalais which are attached to Sri Thyagarajaswami temple at Thiruvarur have been treated as constituting a slightly different category by the Madras High Court in Vythilinga Pandara Sannadhi v. Somasundara Mudaliar(') but with that aspect of the H matter, we are not concerned in the present appeal. In practice, a scheme appears to have been evolved that in regard to the various services in the temple in respect of which Kattalais had been endowed, the management of the allotted properties vested in separate trustees and in that sense, all the trustees administering separate Kattala's could be said to constitute a kind of corporation in which\n\n('I [1894] I.L.R. 17 Mad. 199.\n\nSUPREME\n\nCOURT\n\nRF.~ORTS\n\n(1965) 3 S.C.R.\n\nthe management of the temple properties vested. each one of its A members being in charge of particular items of properties the proceeds of which would be utilised for the performance of a specific Katta!ai.\n\nIn course, of time; however, this practice did not work hartnoniously and coordination between the duties of the various trustees worked unsatisfactorily, because more emphasis came to be B placed on the individuality of the Kattalais and that led to anomalies in the actual administration of the saicl Kattalais. As a result. in 1910, a suit was filed under s.92 of the Code of Civil Procedure for the settlement of a scheme to manage the affairs of the temple in the Sub-Court at Thanjavur. A scheme was accordingly settled. 0 and when the matter was taken in appeal, the High Court substantially confirmed the said scheme (vide Gnana Sambanda v. Vaithilinga Mudaliar).(') The scheme thus framed governed the management of the temple thereafter.\n\nIt appears that the affairs of the said temple again came up for consideration before the Madras High Court in Ramanathan D Chettiar v. Balayee Ammal('). In that case, the High Court rejected the contention of one of the Kattalai trustees that subiect to the performance of services, the endowments in question had to be treated as his property; the view taken by the High Court on this occasion was that all the Kattalais were appendages of the temple; though each Kattalaidar was a separate trustee, there was no ques- E tion of private ownership. . .\n\nIn the year 1931, there was another suit under s.92 of the Code on the file of the District Court, East Thanjavur for the modification of the scheme already framed. It was urged that certain defects in the scheme had been noticed in the actual workmg; and so, it was necessary to make some modifications. Ac- F cordingly, some modifications were made.\n\nMeanwhile, the Madras Legislature passed the Madras Hindu Religious EndowmentS Act, 1927. The object of this Act was to provide for the proper administration and governance of certain Hindu Religious Endowments. The Act contemplateq the supervi- G sion of these endowments through a statutory body called the Madras Hindu Religious Endowments Board. It divided the temples into \"excepted and non-excepted temples\". It also provided for the framing of a scheme for the management of the temples.\n\nThis Act was amended by Madras Act IX of 1937. The result of H the amendment was that Chapter VI-A was added to the Act of\n\n1927. The provisions of this chapter laid down that notwithstanding that a temple, or specific endowment attached to a temple was governed by a scheme previously framed by the Board or settled by a Court, the Bord if it were satisfied. that th7 temple or endowment was being mismanaged and that m the mterests of the administration of the temple or endowment it was necessary to take\n\n<'> [19281 18 :pv. 241.\n\n(•) [1923] 27 L.W. 33.\n\nBUBRAMA.NIA v. STA.TE OF MADRAS (G.1jendrag:ulbr, 0. J.) 21\n\nproceedings under the said Chapter, might \"notify\" the temple or endowment. l\\nd on the publication of such notification, the administration of the temple or endowment would go under the control of the Board notwithstanding the scheme which might have been framed already. On taking management of a notified temple or endowment, the Board was authorised to appoint an Executive Officer and: define his duties. In consequence, such Executive Officer would virtually displace the trustee and would function under the control of the Endowment Board. The result of the notification in substance would be that the previously existing scheme would be suspended, and the management would vest in the Board.\n\nSoon after this Act was passed, proceedings were commenced by the Board for the purpose of notifying the temple with which we are concerned in the present appeal, and the Kattalais attached thereto. The Trustees of the various Kattalais naturally opposed this step, but their objections were over-ruled, and on May 25, 1937, a notification was issued. To this notification we have already referred. In pursuance of this notification, an Executive Officer was appointed by the Board on July 12, 1937. On July 30, 193 7, the Board defined the powers of the Executive Officer and directed him to take charge !)nd be in possession of the temple and the various Kattalais attached thereto. As a result of this order, the Executive Officer began to exercise all the powers and discharge all the functions of a trustee of a non-excepted temple, and that left very little powers in the hands of the trustees of the several Kattalais.\n\nThe Pandarasannadhi of the Dharmapuram Mutt who was then the hereditary Trustee of the Rajan Kattalai instituted C.S. No.\n\n20 of 1938 in the Madras High Court for a declaration that the said notification was illegal and for setting aside the orders issued by the Board in pursuance of the said notification. It appears that the suit did not proceed to a trial, because the parties entered into a compromise. In substance, as a result of the compromise, the notification was maintained, but the possession of the Kattalai properties was restored to the Trustee who was to manage the same by a staff under his control. and had to keep accounts. Certain other provisions were made to safeguard the efficient management of the said trust. and the overall control and supervision of the Executive Officer was maintained. One of the clauses of the compromise, clause (k) expressly reserved to the Board liberty to re-define the powers . and duties as spedfied above in case the trustee commits any wilful breach of the above terms and conditions or is guilty of wilful neglect of the duties specified above, provided that the Board shall not do so except on notice to the trustee and after giving reasonable opportunity to him to be heard in his defence. This compromise decree was passed on August 1, 1940, and since then, the administration of the Kattalai in question has been conducted in accordance w'th the terms of this decree.\n\nAfter the Constitution came into force on January 26, 1950, the Hindu Religious Endowments Act of 1927 was repealed and in its place Act XIX of 1951 was substituted. This latter Act came into force on September 30. 1951. Section 5 of this Act repealed the earlier Act of 1927. The Chapter relating to notification of temples and endowments was numbered as Chapter VI in the new Act. Section 64 of this new Act provided for the notification of a temple or a religious institution, and sub-s.(4) laid down that every notification published under this section shall remain in force for a period of five years from the date of its publication; but the Government may at any time on an application made to them cancel the notification. This section had made provision for the notification of religious institutions after this new Act came into force.\n\nSection 103(c) dealt with cases where notifications had beert made under the previous enactment. That section provided that the notification published under s.65A, sub-s.(3) or sub-s.(5) of the said Act and in force immediately before the commencement of the new\n\nAct would be deemed to be a notification published under s.64 and D would be in force for five years from the date of the commencement of the new Act (No. XIX of 1951).\n\nIn 1956, another Amending Act (No. IX of 1956) was passed.\n\nSection 2 of this Amending Act substituted a new sub-section in the place of s.64(4). Under that provision, every notification published or deemed to be published under that section shall remain E in force for a period of five years. but it may by notification be cancelled at any time or continued from time to time for a further period or periods not exceeding five years at a time as the Government may by notification in each case think fit to direct. As a consequence, s.l 03(c) was also amended, and the words \"and shall be in force for five years from the date of the commencement of this F Act\" were omitted. The result of this amendment was that the notification issued or deemed to be issued under the relevant provisions of the new Act would remain in force for a period of five years; it can be cancelled even before the said period expired, or it can be continued after the expiry .of the said period from time G to time for such further period or periods as the Government may deem fit. We have already seen that the impugned notification has been issued under s.64(4) of Act XIX of 1951. That, broadly stated, is the background of the present dispute between the appellant and the respondent State of Madras.\n\nTwo principal contentions were urged before the High Court H by the appellant in support of his plea that the impugned notification is invalid. It was argued that the trusteeship of. the Rajan Kattalai being hereditary in the head of the Dharmapuram Mutt, is a right of property under Art. l 9(i)(f) of the Constitution, and since s.64 of the Act empowers the respondent State to take away that right of property in an arbitrary and capricious mannr. that provision is Constitutionally invalid. The second ground which was urged by the appellant was that the notification was issued without\n\nSUBRAMANIA v. STATE JF MADRAS (G.; jendrcgarlkJr, 0. J.) 23\n\nA giving an opportunity to the appellant to show cause why the earlier notification should not be extended, and that made the notification invalid. The High Court has rejected the first contention, and we are really not called upon to consider that finding of the High Court in the present appeal, because the arguinents urged before us covered a much narrower ground. In regard to the second B contention raised by the appellant. the High Court has found in favour of the appellant that the proceedings authorised to be taken under s.64(4) are in the nature of quas'-judicial proceedings, and the order which can be passed under the said provision is a quasijudicial order; and so. the High Court conceded that before making such an order, it was necessary that the appellant should have been C given an opportunity to be heard, for that is the requirement of natural justice; but the High Court thought that this specific point had not been taken by the appellant in his writ petition; that is why it was not inclined to allow it. The High Court refused to uphold the said point for the other reason that the impugned notification would soon expire on September 30, 1961 and the Govern- D men! would then have to consider whether it should be renewed or not. and the High Court thought that on that occasion, the Government would certainly hear the appellant before making up its mind on that issue. The judgment of the High Coiirt was delivered on August I I. 1961, and since the High Court thought that the impugned order can last only for a short period thereafter, it would E serve no purpose to issue a writ quashing the said order on the ground that the principles of natural justice had not been complied with before passing it. Mr. Viswanatha Sastri for the appellant coHtends that both the grounds given by the High Court in support of its refusal to issue a writ are plainly erroneous, and we are atisfied that Mr. Sastri is right.\n\nF Before dealing with these grounds, however, it is necessary to consider the argument urged by Mr. Raganathan Chetty on behalf of the respondent State that the High Court was in error in holding that the Order. which has been passed under s.64(4) is a quasi-judicial order and can be legitimately passed only after com- G plying with the principles of natural justice. He argues that though the proceedings contemplated by s.63 and s.64(1), (2) and (3) are quasi-judicial proceedings, the position in regard to the Order which can be passed under s.64(4) is entirely different. He concedes that in making the first order notifying an institution under s.64(3), principles of natural justice have to be complied with; in fact, express provisions have been made in that behalf, but he argues H that the said principles do not apply where a notification validly issued under s.64(3) has merely to be cancelled or extended under s.64(4).\n\nChapter VI of Act XIX of 1951 which consists of sections 63 co 69, deals with the notification \"of religious i..;.stitutions. Section 63(1) in terms requires the issue of notice to show cause why a specific institution should not be notified. Sub-section (2) requires\n\nthat the said notice sht H state the reasons for the action proposed, A\n\nand specify a reasonable time, not being less than one 'month from the date of the issue of the notice, for showing such. cause. Sub section (3) allows objections to be filed by the trustee; and sub-s.(4) requires that such objections shall be in writing and shall reach the Commissioner before the period specified. Having provided for the issue of a notice arid for objections to be filed by the trustee, B s.64 deals with the consideration of the objections, if any, and notification of institution. S.64(2) requires an enquiry to be held by the Commissioner at which the validity of the objections would have to be examined. Section 64(3) authorises the Commissioner to make a report to the Government that in his opinion, the institu~ tio!! should be notified. Thereupon, the Government can issue the C notification in question. Thus, it is plain that the issue of a notification has to be preceded by an enquiry and the trustee in auestion is entitled to urge his objections against issue of such a notification; and so, there can be no doubt that these proceedings are quasi-judicial, and if a notification is issued under s.64(3) without complying with the requirements of the provisions of s.63 and s.64(1) and (2), D it would be invalid.\n\nMr. Chetty, however, contends that the position under s.64(4) is entirely different. We have already quoted this provision.\n\nAccording to Mr, Chetty, the decision as to whether a notificati'on should be cancelled before the period of five years is over, E or continued from rime to time, is a purely administrative c]ecision. The Government is already in possession of the material relevant for the purpose of deciding the question. This material has been placed before the Government at time of the enquiry which is held by the Commissioner under s.64(2) before the initial notification is issued, and all that lhe Government has to do F on subsequent occasions is to consider whether the said notification should be cancelled or continued. Such a decision needs no further enquiry and cannot be characterised as quasi-judicial. That is how Mr. Chetty supports the validity of the impugned notification, though it has ben issud without giving notice to the appellant. ·\n\nIn support of this contention, he has relied upon the decision of this Court in Shri Radeshyam Khare & Anr. v. The State of Madhya Pradesh and Others.(') In that case, it was held that ss. 53A and 57 of the C.P. and Berar Municipali_ties Act, 1922, differed materially in their scope and effect, and that the nature of the orders which can be passed under the two respective sections was lJ not the same. That is why this Court found that whereas in taking action under s.53A the State Government was required• to act judicially, the same could not be said to be true about s.57. We do not see how this decision can afford any assistance to Mr.\n\nChetty in support of his argument that s.64(4) is entirely different\n\n('l rrno9J s.c.R. i44o.\n\nSlJBRAMANIA v. STATE OF MADRAS (Gojenilragadkar, C.J.) 25\n\nA in character from s.64(3). It is plain that just as while acting under s.64(3) the Government has ultimately to consider whether a case has been made out for the issue of a notification, so while acting under s.64(4), Government has to consider whether a case has been made out for cancelling the notification or for extending it, and on each occasion, where a decision has to B be taken under s.64(4), the process of reaching the decision is exactly similar to the process in reaching a decision under s.64(3).\n\nAll relevant facts in regard to the management of the endowment must be taken into account, and the question to be considered on each occasion would be whether or not supervision by the Executive Officer under the notification is requ; red in the interests of C public good. It is difficult to see how the Government can legitimately nd satisfactorily consider the question as to whether the notification should be cancelled, unless it hears the party asking for such cancellation. Similarly, it is difficult to understand how Government can legitimately and reasonably decide to extend the notification, unless it gives an opportun'ty to the Trustee to show D cause why it should not be continued. One can imagine several circumstances which may arise after the issue of the first notification and which would help the Trustee to cl:.t; m that the notification should either be cancelled or should not be extended. The nature of the order which can be passed under s.64(4) and its effect on the rights of the trustee are exactly similar to the order E which can be passed under s.64(3). We are. therefore, satisfied that the High Court was right in holding that it was obligatory on the respondent State as a matter of natural justice to give not'ce to the appellant before the impugned notification was passed by it.\n\nThat takes us to the consideration of the question as to F whether the two reasons given by the High Court in support of this decision are valid. The first reft$o'n, as we have already indicated. is that the High Court thought that the plea in question had not been raised by the appellant in his writ petition. This reason is no doubt, techncally right in the sense that this plea was not mentioned in the first affidavit filed by the appellant in G support of h; s petition; but in the affidavit-in-rejoinder filed by the appellant this plea has been expressly taken. This is not disputed by Mr. Chetty, and so, when the matter was. argued before the High Court, the respondents had full notice of the fact that one of the grounds on which the appellant challenged the validity of the impugned Order was that he had not been given a chance to B show cause why the said notification should not be issued. We are, therefore, satisfied that the High Court was in error in assuming that the ground in question had not been taken at any stage by the appellant before the matter was argued before the High Court.\n\nThe second reason given by the High Court appears to be plainly erroneous. In assuming that the impugned Order would come to an end on September 30, 1961, the High Court appears to have ignored the fact that before it delivered its judgment, a\n\nnew Act had come into force (Madras Act XXII of 1959). This A Act came into operation on January l, 1960. Section 72(7) of this\n\nAC1.· provides that 1any notifidation published under sub-s.(I) or sub-s. (3) of s. 64 of Act XIX of 1951 before the commencement of this Act shall be as valid as if such notification 'had been pubfahed under this Act. This provision has again been subsequently amended by Act XL of 1961, and the amended provision is re- B trospectively brought into operation from January I. 1960. We do not propose to consider in this appeal the effect of these amendments, because it is enough for our purpose to state that as a result of the subsequent Act which had already come into force on the date when the H'gh Court delivere-d its . judgment, it is obvious that the impugned notification would not automatically C come to an end on September 30, 1961. This position is not disputed by Mr. Chetty and appears to be plain; so that the main reason which we; ghed with. the High Court in not issuing a writ in favour of the appellant that the impugned notification would remain in operation for a very short period after it delivered its judgment, is found to be erroneous; and the impugned notifica- D tion would continue in operation without< the appellant getting an opportunity to show cause why it should not continue to be in operation. We are, therefore, satisfied that the High Court should have granted the prayer made by the appellant for the issue of an appropriate writ cancelling the impugned notification. Though the impugned notification has been issued in 1956 for live yel!fs, E its life gets statutorily extended, and the only way in which the appellant -would be able to show cause why the said notification should not be extended in respect of his Kattalai is to quash the said notification. ·\n\nIn the result, we allow the appeal, set aside the order passed by the High Court, and direct that an appropriate writ or F order be issued quashing the notification issued by the respondent State on August 4, 1956. The appellant would be entitled to his costs throughout. 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Viswanatha Sastri", "label": "LAWYER", "start_char": 3980, "end_char": 4000, "source": "ner", "metadata": {"in_sentence": "A .. V. Viswanatha Sastri, R. Thiagarajan for R. Ganapathy Iyer, for the petitioner."}}, {"text": "R. Thiagarajan", "label": "LAWYER", "start_char": 4002, "end_char": 4016, "source": "ner", "metadata": {"in_sentence": "A .. V. Viswanatha Sastri, R. Thiagarajan for R. Ganapathy Iyer, for the petitioner."}}, {"text": "R. Ganapathy Iyer", "label": "LAWYER", "start_char": 4021, "end_char": 4038, "source": "ner", "metadata": {"in_sentence": "A .. V. Viswanatha Sastri, R. Thiagarajan for R. Ganapathy Iyer, for the petitioner."}}, {"text": "A. Ranganadham Chetty", "label": "LAWYER", "start_char": 4061, "end_char": 4082, "source": "ner", "metadata": {"in_sentence": "A. Ranganadham Chetty and A. V. Rangam, for the respondents."}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 4087, "end_char": 4099, "source": "ner", "metadata": {"in_sentence": "A. Ranganadham Chetty and A. V. Rangam, for the respondents."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 4168, "end_char": 4182, "source": "ner", "metadata": {"in_sentence": "D The Judgment of the Court was delivered by Gajendragadkar, C.J'.", "canonical_name": "P. B. GAJENDRAGADKAR"}}, {"text": "s. 64", "label": "PROVISION", "start_char": 4320, "end_char": 4325, "source": "regex", "metadata": {"linked_statute_text": "Madras Act XXII of 1959", "statute": "Madras Act XXII of 1959"}}, {"text": "Charitable Endowments Act", "label": "STATUTE", "start_char": 4360, "end_char": 4385, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Madras Act XIX of 1951", "label": "STATUTE", "start_char": 4393, "end_char": 4415, "source": "regex", "metadata": {}}, {"text": "Tanjor District", "label": "GPE", "start_char": 4556, "end_char": 4571, "source": "ner", "metadata": {"in_sentence": "638, dated the 25th May, 1937, re- E lating to Sri Tbiyagarajaswami Temple, Tiruvarur, Nagapattanam Taluk, Tanjor District, be continued for a period of five years from September 30, 1956: The earlier notification which was thus continued had itself been issued by the respondent State of Madras in exercise of the powers conferred on it by clause (b) of sub-section (5) of s.65A of the Hindu Religious Endowments Act, 1926 F (Madras Act II of 1927)."}}, {"text": "s.65A", "label": "PROVISION", "start_char": 4823, "end_char": 4828, "source": "regex", "metadata": {"linked_statute_text": "Madras Act XIX of 1951", "statute": "Madras Act XIX of 1951"}}, {"text": "Hindu Religious Endowments Act, 1926", "label": "STATUTE", "start_char": 4836, "end_char": 4872, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Madras Act II of 1927", "label": "STATUTE", "start_char": 4876, "end_char": 4897, "source": "regex", "metadata": {}}, {"text": "Chapter VI-A of the said Act", "label": "STATUTE", "start_char": 5021, "end_char": 5049, "source": "regex", "metadata": {}}, {"text": "Sri Thiyagarajaswami at Tiruvarur under the purview of the earlier Madras Act", "label": "STATUTE", "start_char": 5120, "end_char": 5197, "source": "regex", "metadata": {}}, {"text": "4th August, 1956", "label": "DATE", "start_char": 5246, "end_char": 5262, "source": "ner", "metadata": {"in_sentence": "In other words, the earlier notification which brought the temple of Sri Thiyagarajaswami at Tiruvarur under the purview of the earlier Madras Act has been extended by the notification issued on 4th August, 1956, G for a further period of five years."}}, {"text": "Subramania Desika Gnana Sambanda Pandarasannadhi", "label": "OTHER_PERSON", "start_char": 5357, "end_char": 5405, "source": "ner", "metadata": {"in_sentence": "By a writ pet; tion filed by the appellant, Sri-Ia-Sri Subramania Desika Gnana Sambanda Pandarasannadhi, Hereditary Trustee of the Rajan Kattalai of the temple in question, in the High Court of Madras the validity of this latter notification was challenged."}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 5482, "end_char": 5502, "source": "ner", "metadata": {"in_sentence": "By a writ pet; tion filed by the appellant, Sri-Ia-Sri Subramania Desika Gnana Sambanda Pandarasannadhi, Hereditary Trustee of the Rajan Kattalai of the temple in question, in the High Court of Madras the validity of this latter notification was challenged."}}, {"text": "Gojemlragadkar", "label": "JUDGE", "start_char": 6158, "end_char": 6172, "source": "ner", "metadata": {"in_sentence": "SUBRAMANIA v. STATE CF MADRAS (Gojemlragadkar, c. J.) 19\n\nA In the town of Tiruvarur in Thanjavur Dist."}}, {"text": "Thanjavur Dist", "label": "GPE", "start_char": 6215, "end_char": 6229, "source": "ner", "metadata": {"in_sentence": "SUBRAMANIA v. STATE CF MADRAS (Gojemlragadkar, c. J.) 19\n\nA In the town of Tiruvarur in Thanjavur Dist."}}, {"text": "Thyagarajaswami", "label": "OTHER_PERSON", "start_char": 6286, "end_char": 6301, "source": "ner", "metadata": {"in_sentence": "The Presiding Deity is Sri Thyagarajaswami."}}, {"text": "Rajan Kattalai", "label": "OTHER_PERSON", "start_char": 6820, "end_char": 6834, "source": "ner", "metadata": {"in_sentence": "It is said that there are 13 such Kattalais, the important amongst them being Rajan Kattalai, Ulthurai Kattalai, Abisheka Kattalai and Annadanam Kattalai."}}, {"text": "Ulthurai Kattalai", "label": "OTHER_PERSON", "start_char": 6836, "end_char": 6853, "source": "ner", "metadata": {"in_sentence": "It is said that there are 13 such Kattalais, the important amongst them being Rajan Kattalai, Ulthurai Kattalai, Abisheka Kattalai and Annadanam Kattalai."}}, {"text": "Abisheka Kattalai", "label": "OTHER_PERSON", "start_char": 6855, "end_char": 6872, "source": "ner", "metadata": {"in_sentence": "It is said that there are 13 such Kattalais, the important amongst them being Rajan Kattalai, Ulthurai Kattalai, Abisheka Kattalai and Annadanam Kattalai."}}, {"text": "Annadanam Kattalai", "label": "OTHER_PERSON", "start_char": 6877, "end_char": 6895, "source": "ner", "metadata": {"in_sentence": "It is said that there are 13 such Kattalais, the important amongst them being Rajan Kattalai, Ulthurai Kattalai, Abisheka Kattalai and Annadanam Kattalai."}}, {"text": "Thanjavur", "label": "GPE", "start_char": 7049, "end_char": 7058, "source": "ner", "metadata": {"in_sentence": "According C to the appellant, these endowments were made by the Indian Rulers who ruled Thanjavur before the establishment of the British Rule."}}, {"text": "Thanjavur district", "label": "GPE", "start_char": 7312, "end_char": 7330, "source": "ner", "metadata": {"in_sentence": "The trustee-,\n\nship of Rajan Kattalai vests in the head of the Dharmapuram mutt in the Thanjavur district."}}, {"text": "Tirunelveli", "label": "GPE", "start_char": 7409, "end_char": 7420, "source": "ner", "metadata": {"in_sentence": "The Dharmapuram mutt itself has large D endowments of lands in Thanjavur and Tirunelveli districts."}}, {"text": "Pandarasannadhi", "label": "OTHER_PERSON", "start_char": 7660, "end_char": 7675, "source": "ner", "metadata": {"in_sentence": "Having regard to the nature of the duties of the head of a mutt of this importance and magnitude, it is not possible for the Pandarasannadhi to supervise all the temples personally, and so, Deputies are appointed on his E behalf to supervise and look after the management of the various institutions."}}, {"text": "Thiruvarur", "label": "GPE", "start_char": 7931, "end_char": 7941, "source": "ner", "metadata": {"in_sentence": "With regard to the services connected with the Rajan Kattalai in Sri Thyagarajaswami temple at Thiruvarur, the head of Dharmapuram mutt generally functions through a deputy known as Kattalai Thambiran."}}, {"text": "Kattalai Thambiran", "label": "OTHER_PERSON", "start_char": 8018, "end_char": 8036, "source": "ner", "metadata": {"in_sentence": "With regard to the services connected with the Rajan Kattalai in Sri Thyagarajaswami temple at Thiruvarur, the head of Dharmapuram mutt generally functions through a deputy known as Kattalai Thambiran."}}, {"text": "s.92", "label": "PROVISION", "start_char": 9874, "end_char": 9878, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 9882, "end_char": 9909, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Kattalaidar", "label": "OTHER_PERSON", "start_char": 10730, "end_char": 10741, "source": "ner", "metadata": {"in_sentence": "In that case, the High Court rejected the contention of one of the Kattalai trustees that subiect to the performance of services, the endowments in question had to be treated as his property; the view taken by the High Court on this occasion was that all the Kattalais were appendages of the temple; though each Kattalaidar was a separate trustee, there was no ques- E tion of private ownership. . ."}}, {"text": "s.92", "label": "PROVISION", "start_char": 10866, "end_char": 10870, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras Legislature passed the Madras Hindu Religious EndowmentS Act, 1927", "label": "STATUTE", "start_char": 11187, "end_char": 11260, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Madras Hindu Religious Endowments Board", "label": "ORG", "start_char": 11481, "end_char": 11520, "source": "ner", "metadata": {"in_sentence": "The Act contemplateq the supervi- G sion of these endowments through a statutory body called the Madras Hindu Religious Endowments Board."}}, {"text": "Madras Act IX of 1937", "label": "STATUTE", "start_char": 11692, "end_char": 11713, "source": "regex", "metadata": {}}, {"text": "May 25, 1937", "label": "DATE", "start_char": 13299, "end_char": 13311, "source": "ner", "metadata": {"in_sentence": "The Trustees of the various Kattalais naturally opposed this step, but their objections were over-ruled, and on May 25, 1937, a notification was issued."}}, {"text": "July 12, 1937", "label": "DATE", "start_char": 13473, "end_char": 13486, "source": "ner", "metadata": {"in_sentence": "In pursuance of this notification, an Executive Officer was appointed by the Board on July 12, 1937."}}, {"text": "July 30, 193 7", "label": "DATE", "start_char": 13491, "end_char": 13505, "source": "ner", "metadata": {"in_sentence": "On July 30, 193 7, the Board defined the powers of the Executive Officer and directed him to take charge !)"}}, {"text": "Dharmapuram Mutt", "label": "OTHER_PERSON", "start_char": 13942, "end_char": 13958, "source": "ner", "metadata": {"in_sentence": "The Pandarasannadhi of the Dharmapuram Mutt who was then the hereditary Trustee of the Rajan Kattalai instituted C.S. No."}}, {"text": "August 1, 1940", "label": "DATE", "start_char": 15201, "end_char": 15215, "source": "ner", "metadata": {"in_sentence": "This compromise decree was passed on August 1, 1940, and since then, the administration of the Kattalai in question has been conducted in accordance w'th the terms of this decree."}}, {"text": "January 26, 1950", "label": "DATE", "start_char": 15387, "end_char": 15403, "source": "ner", "metadata": {"in_sentence": "After the Constitution came into force on January 26, 1950, the Hindu Religious Endowments Act of 1927 was repealed and in its place Act XIX of 1951 was substituted."}}, {"text": "Religious Endowments Act", "label": "STATUTE", "start_char": 15415, "end_char": 15439, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "September 30. 1951", "label": "DATE", "start_char": 15546, "end_char": 15564, "source": "ner", "metadata": {"in_sentence": "This latter Act came into force on September 30."}}, {"text": "Section 5", "label": "PROVISION", "start_char": 15566, "end_char": 15575, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 64", "label": "PROVISION", "start_char": 15728, "end_char": 15738, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 103(c)", "label": "PROVISION", "start_char": 16192, "end_char": 16206, "source": "regex", "metadata": {"statute": null}}, {"text": "s.65A", "label": "PROVISION", "start_char": 16349, "end_char": 16354, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64", "label": "PROVISION", "start_char": 16513, "end_char": 16517, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 16686, "end_char": 16695, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(4)", "label": "PROVISION", "start_char": 16763, "end_char": 16770, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(4)", "label": "PROVISION", "start_char": 17761, "end_char": 17768, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64", "label": "PROVISION", "start_char": 18242, "end_char": 18246, "source": "regex", "metadata": {"statute": null}}, {"text": "jendrcgarlkJr", "label": "JUDGE", "start_char": 18538, "end_char": 18551, "source": "ner", "metadata": {"in_sentence": "The second ground which was urged by the appellant was that the notification was issued without\n\nSUBRAMANIA v. STATE JF MADRAS (G.; jendrcgarlkJr, 0."}}, {"text": "s.64(4)", "label": "PROVISION", "start_char": 19097, "end_char": 19104, "source": "regex", "metadata": {"statute": null}}, {"text": "September 30, 1961", "label": "DATE", "start_char": 19718, "end_char": 19736, "source": "ner", "metadata": {"in_sentence": "The High Court refused to uphold the said point for the other reason that the impugned notification would soon expire on September 30, 1961 and the Govern- D men!"}}, {"text": "August I I. 1961", "label": "DATE", "start_char": 20015, "end_char": 20031, "source": "ner", "metadata": {"in_sentence": "The judgment of the High Coiirt was delivered on August I I. 1961, and since the High Court thought that the impugned order can last only for a short period thereafter, it would E serve no purpose to issue a writ quashing the said order on the ground that the principles of natural justice had not been complied with before passing it."}}, {"text": "Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 20306, "end_char": 20323, "source": "ner", "metadata": {"in_sentence": "Mr. Viswanatha Sastri for the appellant coHtends that both the grounds given by the High Court in support of its refusal to issue a writ are plainly erroneous, and we are atisfied that Mr. Sastri is right."}}, {"text": "Sastri", "label": "OTHER_PERSON", "start_char": 20491, "end_char": 20497, "source": "ner", "metadata": {"in_sentence": "Mr. Viswanatha Sastri for the appellant coHtends that both the grounds given by the High Court in support of its refusal to issue a writ are plainly erroneous, and we are atisfied that Mr. Sastri is right."}}, {"text": "Raganathan Chetty", "label": "OTHER_PERSON", "start_char": 20609, "end_char": 20626, "source": "ner", "metadata": {"in_sentence": "F Before dealing with these grounds, however, it is necessary to consider the argument urged by Mr. Raganathan Chetty on behalf of the respondent State that the High Court was in error in holding that the Order."}}, {"text": "s.64(4)", "label": "PROVISION", "start_char": 20749, "end_char": 20756, "source": "regex", "metadata": {"statute": null}}, {"text": "s.63", "label": "PROVISION", "start_char": 20933, "end_char": 20937, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(1)", "label": "PROVISION", "start_char": 20942, "end_char": 20949, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(4)", "label": "PROVISION", "start_char": 21057, "end_char": 21064, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(3)", "label": "PROVISION", "start_char": 21162, "end_char": 21169, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(3)", "label": "PROVISION", "start_char": 21382, "end_char": 21389, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(4)", "label": "PROVISION", "start_char": 21435, "end_char": 21442, "source": "regex", "metadata": {"statute": null}}, {"text": "Chapter VI of Act", "label": "STATUTE", "start_char": 21445, "end_char": 21462, "source": "regex", "metadata": {}}, {"text": "sections 63", "label": "PROVISION", "start_char": 21493, "end_char": 21504, "source": "regex", "metadata": {"linked_statute_text": "Chapter VI of Act", "statute": "Chapter VI of Act"}}, {"text": "Section 63(1)", "label": "PROVISION", "start_char": 21571, "end_char": 21584, "source": "regex", "metadata": {"linked_statute_text": "Chapter VI of Act", "statute": "Chapter VI of Act"}}, {"text": "s.64", "label": "PROVISION", "start_char": 22196, "end_char": 22200, "source": "regex", "metadata": {"linked_statute_text": "Chapter VI of Act", "statute": "Chapter VI of Act"}}, {"text": "S.64(2)", "label": "PROVISION", "start_char": 22290, "end_char": 22297, "source": "regex", "metadata": {"linked_statute_text": "Chapter VI of Act", "statute": "Chapter VI of Act"}}, {"text": "Section 64(3)", "label": "PROVISION", "start_char": 22416, "end_char": 22429, "source": "regex", "metadata": {"linked_statute_text": "Chapter VI of Act", "statute": "Chapter VI of Act"}}, {"text": "s.64(3)", "label": "PROVISION", "start_char": 22917, "end_char": 22924, "source": "regex", "metadata": {"statute": null}}, {"text": "s.63", "label": "PROVISION", "start_char": 22986, "end_char": 22990, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(1)", "label": "PROVISION", "start_char": 22995, "end_char": 23002, "source": "regex", "metadata": {"statute": null}}, {"text": "Chetty", "label": "OTHER_PERSON", "start_char": 23040, "end_char": 23046, "source": "ner", "metadata": {"in_sentence": "Mr. Chetty, however, contends that the position under s.64(4) is entirely different."}}, {"text": "s.64(4)", "label": "PROVISION", "start_char": 23090, "end_char": 23097, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(2)", "label": "PROVISION", "start_char": 23584, "end_char": 23591, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 53A and 57", "label": "PROVISION", "start_char": 24193, "end_char": 24207, "source": "regex", "metadata": {"statute": null}}, {"text": "s.53A", "label": "PROVISION", "start_char": 24478, "end_char": 24483, "source": "regex", "metadata": {"statute": null}}, {"text": "s.57", "label": "PROVISION", "start_char": 24582, "end_char": 24586, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(4)", "label": "PROVISION", "start_char": 24693, "end_char": 24700, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(3)", "label": "PROVISION", "start_char": 24828, "end_char": 24835, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(3)", "label": "PROVISION", "start_char": 24881, "end_char": 24888, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(4)", "label": "PROVISION", "start_char": 25019, "end_char": 25026, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(4)", "label": "PROVISION", "start_char": 25204, "end_char": 25211, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(3)", "label": "PROVISION", "start_char": 25313, "end_char": 25320, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(4)", "label": "PROVISION", "start_char": 26289, "end_char": 26296, "source": "regex", "metadata": {"statute": null}}, {"text": "s.64(3)", "label": "PROVISION", "start_char": 26402, "end_char": 26409, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras Act XXII of 1959", "label": "STATUTE", "start_char": 28027, "end_char": 28050, "source": "regex", "metadata": {}}, {"text": "January l, 1960", "label": "DATE", "start_char": 28087, "end_char": 28102, "source": "ner", "metadata": {"in_sentence": "This A Act came into operation on January l, 1960."}}, {"text": "Section 72(7)", "label": "PROVISION", "start_char": 28104, "end_char": 28117, "source": "regex", "metadata": {"linked_statute_text": "Madras Act XXII of 1959", "statute": "Madras Act XXII of 1959"}}, {"text": "s. 64", "label": "PROVISION", "start_char": 28208, "end_char": 28213, "source": "regex", "metadata": {"linked_statute_text": "Madras Act XXII of 1959", "statute": "Madras Act XXII of 1959"}}, {"text": "August 4, 1956", "label": "DATE", "start_char": 30032, "end_char": 30046, "source": "ner", "metadata": {"in_sentence": "In the result, we allow the appeal, set aside the order passed by the High Court, and direct that an appropriate writ or F order be issued quashing the notification issued by the respondent State on August 4, 1956."}}]}
{"document_id": "1965_3_187_193_EN", "year": 1965, "text": "A COCHIN STATE POWER AND UGBT CORPORATION LTD.\n\nSTATE OF KERALA\n\nFebruary 25, 1965\n\nB (K. StmBA RAo, J.C. SHAH AND R. S. BACHAWA'l', JJ.)\n\nIndian Electricity Act, 1910, s. 6(1)(2) and (4)-Scope of.\n\nThe appellant held a licence for the supply of electrical enera In Kerala which. was granted for a period Of 25 years, and was subject to continuation for ten-year terms in the absence of a notice 0 bv the local authority or State Government of an election to purliase the undertaking. The first 25-year term of the licence expired on December 2, 1960, and prior to that, on October 24 and again on October 29, 1959, the State Electricity Board gave notice to the ap. pellant under s.6(1) of the Indian Electricity Act. 1910, to purchase the under taking on the expiry of the licence. On November 20, 1959, :the State Government also served notice on the appellant of ita D election to purchase the undertaking on December 2, 1960.\n\nIn November 1960, the appellant filed a writ petition in the High Court seeking orders restraining the State Electricity Board and thoe respondent State Government from taking an_y action pursuant to the notices given by them. In the course of the hearing of the P!!tition, the State Electricity Boara waived and abandoned all\n\ni'tS rights Of purchase of the undertaking. The writ petition was B thereafter dismissed and it was held that the State Government was entitled to take further steps under its notice dated November 20, 1959. An appeal against this decision to a Division Bench of the High Court was dismissed.\n\nIn the appeal to the Supreme Court, the appellant contended, inter alia, that the State Electricity Board having duly elected under\n\n1. 6(1) to purchase the undertaking on the expiry Of the licence, the F State Government acquired no option of purchase under s. 6(2) of\n\nfue 1910 Act.\n\nHELD: Any option Of purchasing the undertaking on the expiry of the oeriod of 25 years specified in the licence under s. 6(1) vested in the State Electricity Board, and as the Board duly elected to purchase the undertaking by the notice served on the appellants, the 6 State Government acquired no right or option of purchasing the undertaking under s. 6. fl93 G-Hl As s. 6 came into force less than eighteen months before Deceinber 2, 1960, it was impossible for the Board to have given notice to the State Government as required bv s. 6(4) of its intention to exercise the option. On the principle of le:r: non cogit ad impassibilia s. 6( 4) must therefore be construed as not being applicable in the B circumstances of the case, so that the Board could, not be deemed to have elected not to purchase the undertaking under s. 6(4).\n\n[193 E-F]\n\nCIVIL APPELLATE JURISDICl'ION: Civil Appeal No. 897 of 1963.\n\nAppeal from the judgment and order dated October 4, 1962 of the Kerala High Court, Ernakulam, in Writ Appeal No. 17 of 1962.\n\nA.V. Viswanatha Sastri, Arun B. Saharaya and Sardar Baha- A dur, for the appellant.\n\nV. P. Gopalan Nambiar, Advocate-General for the State of Kerala and V. A. Seyid Muhammad, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. The short question in this appeal is whether the B proposed acquisition of the electrical supply undertaking of the appellant by the State of Kerala in pursuance of the notice Ex. G, dated November 20, 1959 is authorised by s. 6 of the Indian Elei:tricity Act, 1910.\n\nThe appellant is the holder of a license for the supply of elecc trical energy in Ernakulam and other places in Cochin. The license was originally granted to the managing agents of the appellant under the Cochin Electricity Regulation III of 1902 then in force in Cochin and subsequently assigned to the appellant wiih the permission of the Cochin Government. On the merger of Travancore-Cochin with the Union of India, the Indian Electricity Act, D\n\n1910 was made applicable by the Part-B States Laws Act, 1951 (Act lllof 1951) to the Travancore-Cochin area, and the Cochin Electricity Regulation stood repealed. The Electricity (Supply) Act, 1948 (Act 54 of 1948) was also made applicable to the Travancore-Cochin area by the Part-B Stats Laws Act, 1951. On March 31, 1957 the Kerala Electricity Board. was constituted, and by s. 71 E of Act 54 of 1948, any right and option to purchase the undertaking of the licensee under the Indian Electricity Act, 1910 was transferred to and vested in the Board. Now, the right or option to purchase the undertaking of a licensee under s.7(1) of the Indian Electricity Act, 1910 then in force was exercisable \"on the expiration of such period, not exceeding fifty years, and of every such F subsequent period, not exceeding twenty years as shall be specified in this behalf in the license.\" Sub-section (4) of s. 7 provided:\n\n\"Not less than two years' notice in writing of any election to purchase under this sect; on shall be served upon the licensee by the local authority or the State Government, as the case may be.\"\n\nClause 15(a) of the license held by the appellant provides:\n\n\"The option of purchase given by Section 7, sub-section (i) of the Regulation shall first be exercisable on the\n\nexpiration of 25 years from the commencement of this B license and on the expiration of every subsequent period of ten years during the continuance of this license.\"\n\nSection 7(1) of the Indian Electricity Act, 1910 corresponds to s. 7(i) of the Regulation, that is to say, of the Cochin Electricity.\n\nRegulation. The date of the commencement of the license is . December 3, 1935. The period of 25 years mentioned .in cl. 15(a) of the L'cense expired on December 2, 1930. The last date for ·\n\n1'0\\VER AND LIGHT CORP. ~. STATE (JlaclllJlllGt, J.) 1~9\n\nA giving the twc;> years' notice of the election to p.urchasc on the ex\n\npiry of December 2. 1960 required under s. 7 (4) of the Indian Flectricity Act, 1910 expired on December 2, 1958. On February 11, 1959, the Stat..: Electricity Board served on the appellant a notice, Ex. B, of its election to purchase the undertaking of the appellant on the expiry of December 2, 1960, but this notice was B not being in accordance wtih s. 7(4) was of no legal effect.\n\nBy the Indian Electricity (Amendment) Act, 1959 (Act 32 of \\959), s.6 now in force was substituted for the old s.7 of the Indian Electricity Act. 1910, with effect fr0m Sl)ptember 5, 1959. Section 6 of the Indian Electricity Act, 1910 now in force reads: c \"6. (I) Where a license has been granted to any person not being a local authority, the State Electricity Board shall,--\n\n(a) in the case of a license grantd before the commencement of the Indian Electricity (Amendment) Ac~.\n\n1959, on the expiration of each such period as is specified in the license: and\n\nCb) in the case of a liceose granted on or after the commencement of the said Act, on the expiration of such period n0t excced'ng twenty years and of every such subsequent peried, n0t exceeding ten years, as shall be specified in this hehalf in the license;\n\nhave the option of purchasing thq undertaking and such opt'on shall be exercised by the -State Electricity Board serving upon the licensee a notice in writing of not less than one year requiring the licensee to sell the undertaking to it at the expiry of the re\\evant period referred t6 in this sub-section.\n\n(2) Where a State Electricity Board has not been constituted, or if constituted. does n('ft elect to purchase the undertaking, the State Government shall have the like option to be exercised In the like manner of purchasing the undertaking.\n\n0) Where ne'ther the State Electricity Board nor the State G.overment elcts to purchase the undertaking, any local authonty constituted for an area within which the whole of the area of supply is included shall have the like option to be exercised in the like manner of purchasing the wderta big.\n\nf4l If the. State Electricity Board intends to exercise the option of purchasing the undertaking under this section it shall send an intimation in writing of such intention to the State Government at least eighteen months before the expiry of the relevant period referred to in >Uh section (!) and if no such intimat'on as aforesaid is receiv\n\nL/B(D!~~CI-14\n\n190 SUl'BEME CQURT REl'OllTa (1960 J 3 8.0.ij.\n\ned by the State Government the State Electricity Board shall be deemed to have elected not to purchase the un. dcrtaking,\n\n(5) If the Sj; ate Government intends to exercise the option of purchasing the undertaking under this section, it shall send an intimation in writing of such intention to the local authority, if any, referred to in sub-section\n\n(3) at least fifteen months before the expiry of the relevant period referred to in sub-section (I) and if no such intimation as aforesaid is received by the local authority, the State Government shall be deemed to have elected not to purchase the undertaking,\n\n(6) Where a notice exercising the option of purchasing the undertaking has been served upon the licensee under this sect; on, the licensee shall deliver the undertaking to the State Electricity Board, the State Government or the\n\nlocal authority, as the case may be, on the expiration. of the relevant period referred to in sub-section (I) pending D the determination and payment of the purchase price.\n\n(7) Where an undertaking is purchased under this sec tion, the purchaser shall pay to the licensee the purchase price determined in accordance with the provisions of sub-section (4) of section 7A.\" E\n\nOn October 24, 1959,'llthe State Electricity Board served upon the appellant a notice Ex. D, of its election to purchase the undertaking on the expiry of December 2, 1960. On October 29, 1959, the State Electrlcity Board served upon the appellant another notice, Ex. E, of its election. On November 20, 1959, the State Government served upon the appellant a notice, Ex. G, of its elec- F tion to purchase the undertaking on the expiry of December 2,\n\nl960. On November 14, 1960, the appellant filed a wrlt petition in the High Court of Kerala impleading the State of Kerala and the Kerala State Electricity Board and asking for the issue of al>' propriate writs and orders restraining them from taking any ac- G tion pursuant to the notices, Exs. B, D, E and G. On December 20,\n\n1961, a learned single Judge of the High Court passed the follow ing order:\n\n\"In view of the representation made before me by both the learned Advocate-General appearing for the State, the 1st respondent, and Mr. Krishnaswami Iyengar, learned\n\nH counsel appearing for the Kerala State Electricity Board, the second respondent, that for the purpose of this writ petit'on, t'ie notices issued by the Kerala State Electricity Board, Exs. B. D and E can be ignored, it follows that neither the 1st respondent nor. the -2nd respondent has any jurisdiction or power to take any action on the basis Of Exs. B, D or E. In view of the fact that I am uphold-\n\nPOWER AND LIGHT CORP. v. STATE (Bachawat, J.)\n\ning the action of the State Government, who had issued the notice Ex. G, it follows that the 1st respondent alone is entitled to take further action under the Act, in pursuance of the notice, Ex. G, issued and sent along with the covering letter, Ex.Fon 20-11-1959. It follows, subject to what is stated about Exs. B, D and E, that the writ petition has to be dismissed. There will be no order as to costs.\"\n\nThe effect of this order was that the State Electricity Board waived and abandoned all its rights of purchase of the undertaking under the notices, Exs. B, D and E, and neither the Kerala State Electricity Board nor the State of Kerala had any jurisdiction or power to take any action on the basis of those notices, and save as afore- C said, the writ petition was dismissed, and it was held that the State Government was entitled to take further action under its notice, Ex. G. Aggrieved by this order, the appellant filed an appeal in the Kerala High Court impleading the State Government only as the party respondent. The State Electricity Board did not file any appeal from the order of the learned single Judge. By its D judgment dated October 4, 1962, a Division Bench of the High Court dismissed the appeal. In paragraph 15 of its judgment, the Bench observed :\n\n\"In its petition the appellant asked for reliefs both against the State Government and the State Electricity Board. However, in the course of the hearing of the petition, the Board gave up its claims under Exts. B. D and E, and only the claim of the State Government under Ext.\n\nG was canvassed. The petition was, in effect, allowed against the Board. The Baord has not appealed and is not a party to the present appeal; and its notices may therefore be ignored except to the extent that they may affect the rights of the State Government.\" The appellant now appeals to this Court under a certificate granted by the High Court under Arts. 133(l)(a) and 133(l)(c) of the Constitution.\n\nOn behalf of the appellant, Mr. Vishwanath Sastry contended G that ([) as the two years' notice in writing of the election to purchase the undertaking on the expiry of December, 2, 1960 was not served on the appellant as required by the old s. 7(4) of the Indian Electricity Act, 1910, the appellant acquired a vested right to ho.Id the license. until the expiry of a further period of ten years, that 1s to say, unll.l December, 2, 1970, and this vested right was H not taken away either expressly or by necessary implication by the new s.6 of the Indian Electricity Act, 1910 introduced by the amending Act 32 of 1958; (2) the expression \"on the expiration of each such period as is specified in the license\" in thi; new s.6(l)(a) means a period which has not expired and on the expiry of which the option may be legally exercised, and since in the absence of the two years' notice required under the old s. 7(4), the option of purchase on the expiry of December 2, 1960 could not be legally L/ll!D)2SCI-15\n\nexercised, the new s.6(1) did not confer any option of purchase on A the expiry of December 2, 1960 and the first option exercisable under the new s.6(1) would be on the expiry of December 2, 1970;\n\n(3) sub-sections (4) and (5) of the new s.6 show that the period on the expity of which the option under sub-s(l) of s.6 is exercisable, is a period which would expire at least 18 mqnths after the coming into force of the new s.6, that is to say, after September 5, 1959, B and since the period expiring on December 2, 1960 is not such a period, the new s.6(1) did not confer any option of purchase on the expiry of December 2, 1960; and (4) in any event, the State Electricity Board having duly elected to purchase the undertaking on the expiry of December 2, 1960, the State Government acquir ed no option of purchase under sub-s(2) of s.7 of the Indian Elec 0 tricity Act, 1'910.\n\nOn behalf of the respondent, Mr. V.P. Gopalan Nambiar, the Advocate-General of Kerala, contended (!) that the absence of two years' notice under the old s.7(4) of the Indian Electricity Act, 1910 did not confer upon the appellant a vested right to hold D the license until the expiry of December 2, 1970, and the immunity from compulsory purchase under the old s.7 arising from the non-service of the requisite two years' notice could be, and, in fact, was taken away by the new s.6, which required only one year's notice of intention to purchase the undertaking; (2) assuming that the appellant acquired under the old s. 7 a vested right to E hold the lic10.ise until December 2, 1970, sµch vested right was taken away by the new s.6, which expressly applies to licenses granted before its commencement, and the period of 25 years is a period specified in as the license on the expiry of which the option of purchase was legally exercisable; (3) sub-sections (4) and (5) of the new s.6 did not cut down the plain me(lning of sub-s(l) of the P iCction and the option on the expiry of the period of 25 years was vested under sub-s(l) of s.6, though this period did not expire 18 months after September 5, 1959; and (4) as the State Electricity Board did not send to the State Government any intimation in writing of its intention to exercise the option on the expiry of December 2, 1960 as required by sub-s(4) of s.6, the Board must G be deemed to have elected not to exercise this option, and consequently by sub-s(2) of s.6, the State Govermnent is vested with the option.\n\nWe think that the fourth contention of Mr. Viswanatha Sastry is sound, and should be accepted.\n\nAssuming, without deciding, that the option of purchasing the undertaking on the H expiry of the period of 25 years specified in the license was available under sub-s(l) of s.6, such option vested in the State Electricity Board, and as the Board duly elected to purchase the undertaking, the State Government acquired no right or option of pur chasing the undertaking under s.6. On this ground alone, the appeal\n\nchould be allowed, and in this view of the matter, we do not think it necessary to express any opinion on the other contentions urged\n\nPOWER AND LIGHT CORP. v. oTATE \\BachuWJt, J.) l\\)3\n\nbefore us. As far as the State Electricity Board is concerned, it has abandoned and waived its option of purchase on the expiry of 25 years.\n\nSub-section (!) of s.6 expressly vests in the State Electricity Board the option of purchase on the expiry of the relevant period specified in the license. But the State Government claims that under sub-s(2) of s.6 it is now vested with the option. Now, under sub-s(2) of s.6, the State Government would be vested with the option only \"where a State Electricity Board has not been constituted, or if constituted, does not elect to purchase the undertaking.\" It is common case that the State Electricity Board was duly constituted. But the State Government claims that the State Electricity Board did not elect to purchase the undertaking. For this purpose, the State Government relies upon the deeming provisions of sub-s(4) of s.6, and contends that as the Board did not send to the State Government any intimation h writing of its intention to exercise the option as required by the sub-section, the Board must be deemed to have elected not to purchase the undertaking.\n\nD Now, the effect of sub-s(4) read w'th sub-s(2) of s.6 is that on failure of the Board to give the notice prescribed by sub-s(4), the dption vested in the Board under sub-s(l) of s.6 was liable to be divested. Sub-section (4) of s.6 imposed upon the Board the duty of giving after the coming into force of s.6 a notice in writing of\n\nits intention to exercise the option at least 18 months before the expiry of the relevant period. Section 6 came into force on September 5, 1959, and the relevant period expired on December 3,\n\n1960. In the circumstances, the giving of the requisite notice of 18 months in respect of the option of purchase on the expiry of December 2, 1960, was impossible from the very commencement of s.6. The performance of this impossible duty must be excused in F accordance with the maxim, lex non cogit ad impossibilia (the law does not compel the doing of impossibilities), and sub-s(4) of s.6 must be construed as not being applicable to a case where compliance with it is impossible. We must therefore, hold that ;!le State Electricity Board was not required to give the notice under sub-s(4) of s.6 in respect of its option of purchase on the expiry of 25 years. It must follow that the Board cannot be deemed to have elected not to purchase the undertaking under sub-s(4) of s.6. By the notice served upon the appellant, the Board duly elected to purchase the undertaking on the expiry of 25 years. Consequently, the State Government never became vested with the option of purchasing the undertaking under sub-s(2) of s.6. The State Gov- H ernment must, therefore, be restrained from taking further action under its notice, Ex. G, dated November 20, 1959.\n\nIn the result, the appeal is allowed, and the respondent State of Kerala is restrained from taking any action unde; the notice, Ex. G, dated November 20, 1959. The respondent shall pay to the appellant the costs in this Court. We direct the parties to pay and bear their own costs in the Courts below.\n\nAppeal allowed.", "total_entities": 121, "entities": [{"text": "A COCHIN STATE POWER AND UGBT CORPORATION LTD", "label": "PETITIONER", "start_char": 0, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "COCHIN STATE POWER AND UGBT CORPORATION LTD", "offset_not_found": false}}, {"text": "STATE OF KERALA", "label": "RESPONDENT", "start_char": 48, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "STATE OF KERALA", "offset_not_found": false}}, {"text": "February 25, 1965", "label": "DATE", "start_char": 65, "end_char": 82, "source": "ner", "metadata": {"in_sentence": "STATE OF KERALA\n\nFebruary 25, 1965\n\nB (K. StmBA RAo, J.C. SHAH AND R. S. BACHAWA'l', JJ.)"}}, {"text": "B (K. StmBA RAo, J", "label": "JUDGE", "start_char": 84, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 103, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 139, "end_char": 167, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 6(1)(2)", "label": "PROVISION", "start_char": 169, "end_char": 179, "source": "regex", "metadata": {"linked_statute_text": "Indian Electricity Act, 1910", "statute": "Indian Electricity Act, 1910"}}, {"text": "Kerala", "label": "GPE", "start_char": 266, "end_char": 272, "source": "ner", "metadata": {"in_sentence": "The appellant held a licence for the supply of electrical enera In Kerala which."}}, {"text": "December 2, 1960", "label": "DATE", "start_char": 534, "end_char": 550, "source": "ner", "metadata": {"in_sentence": "The first 25-year term of the licence expired on December 2, 1960, and prior to that, on October 24 and again on October 29, 1959, the State Electricity Board gave notice to the ap."}}, {"text": "October 24 and", "label": "DATE", "start_char": 574, "end_char": 588, "source": "ner", "metadata": {"in_sentence": "The first 25-year term of the licence expired on December 2, 1960, and prior to that, on October 24 and again on October 29, 1959, the State Electricity Board gave notice to the ap."}}, {"text": "October 29, 1959", "label": "DATE", "start_char": 598, "end_char": 614, "source": "ner", "metadata": {"in_sentence": "The first 25-year term of the licence expired on December 2, 1960, and prior to that, on October 24 and again on October 29, 1959, the State Electricity Board gave notice to the ap."}}, {"text": "s.6(1)", "label": "PROVISION", "start_char": 681, "end_char": 687, "source": "regex", "metadata": {"linked_statute_text": "Indian Electricity Act, 1910", "statute": "Indian Electricity Act, 1910"}}, {"text": "Electricity Act", "label": "STATUTE", "start_char": 702, "end_char": 717, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "November 20, 1959", "label": "DATE", "start_char": 787, "end_char": 804, "source": "ner", "metadata": {"in_sentence": "On November 20, 1959, :the State Government also served notice on the appellant of ita D election to purchase the undertaking on December 2, 1960."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 1575, "end_char": 1588, "source": "ner", "metadata": {"in_sentence": "In the appeal to the Supreme Court, the appellant contended, inter alia, that the State Electricity Board having duly elected under\n\n1."}}, {"text": "s. 6(2)", "label": "PROVISION", "start_char": 1813, "end_char": 1820, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6(1)", "label": "PROVISION", "start_char": 1958, "end_char": 1965, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 2190, "end_char": 2194, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 2209, "end_char": 2213, "source": "regex", "metadata": {"statute": null}}, {"text": "Deceinber 2, 1960", "label": "DATE", "start_char": 2263, "end_char": 2280, "source": "ner", "metadata": {"in_sentence": "fl93 G-Hl As s. 6 came into force less than eighteen months before Deceinber 2, 1960, it was impossible for the Board to have given notice to the State Government as required bv s. 6(4) of its intention to exercise the option."}}, {"text": "s. 6(4)", "label": "PROVISION", "start_char": 2374, "end_char": 2381, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6( 4)", "label": "PROVISION", "start_char": 2475, "end_char": 2483, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6(4)", "label": "PROVISION", "start_char": 2665, "end_char": 2672, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICl'ION", "label": "PETITIONER", "start_char": 2686, "end_char": 2715, "source": "ner", "metadata": {"in_sentence": "[193 E-F]\n\nCIVIL APPELLATE JURISDICl'ION: Civil Appeal No."}}, {"text": "Kerala High Court, Ernakulam", "label": "COURT", "start_char": 2812, "end_char": 2840, "source": "ner", "metadata": {"in_sentence": "Appeal from the judgment and order dated October 4, 1962 of the Kerala High Court, Ernakulam, in Writ Appeal No."}}, {"text": "A.V. Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 2874, "end_char": 2896, "source": "ner", "metadata": {"in_sentence": "A.V. Viswanatha Sastri, Arun B. Saharaya and Sardar Baha- A dur, for the appellant."}}, {"text": "Arun B. Saharaya", "label": "OTHER_PERSON", "start_char": 2898, "end_char": 2914, "source": "ner", "metadata": {"in_sentence": "A.V. Viswanatha Sastri, Arun B. Saharaya and Sardar Baha- A dur, for the appellant."}}, {"text": "Sardar Baha-", "label": "OTHER_PERSON", "start_char": 2919, "end_char": 2931, "source": "ner", "metadata": {"in_sentence": "A.V. Viswanatha Sastri, Arun B. Saharaya and Sardar Baha- A dur, for the appellant."}}, {"text": "V. P. Gopalan Nambiar", "label": "LAWYER", "start_char": 2959, "end_char": 2980, "source": "ner", "metadata": {"in_sentence": "V. P. Gopalan Nambiar, Advocate-General for the State of Kerala and V. A. Seyid Muhammad, for the respondent.", "canonical_name": "V. P. Gopalan Nambiar"}}, {"text": "V. A. Seyid Muhammad", "label": "LAWYER", "start_char": 3027, "end_char": 3047, "source": "ner", "metadata": {"in_sentence": "V. P. Gopalan Nambiar, Advocate-General for the State of Kerala and V. A. Seyid Muhammad, for the respondent."}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 3114, "end_char": 3122, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBachawat, J. The short question in this appeal is whether the B proposed acquisition of the electrical supply undertaking of the appellant by the State of Kerala in pursuance of the notice Ex."}}, {"text": "State of Kerala", "label": "ORG", "start_char": 3260, "end_char": 3275, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBachawat, J. The short question in this appeal is whether the B proposed acquisition of the electrical supply undertaking of the appellant by the State of Kerala in pursuance of the notice Ex."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 3351, "end_char": 3355, "source": "regex", "metadata": {"statute": null}}, {"text": "Ernakulam", "label": "GPE", "start_char": 3477, "end_char": 3486, "source": "ner", "metadata": {"in_sentence": "The appellant is the holder of a license for the supply of elecc trical energy in Ernakulam and other places in Cochin."}}, {"text": "Cochin", "label": "GPE", "start_char": 3507, "end_char": 3513, "source": "ner", "metadata": {"in_sentence": "The appellant is the holder of a license for the supply of elecc trical energy in Ernakulam and other places in Cochin."}}, {"text": "Cochin Government", "label": "ORG", "start_char": 3736, "end_char": 3753, "source": "ner", "metadata": {"in_sentence": "The license was originally granted to the managing agents of the appellant under the Cochin Electricity Regulation III of 1902 then in force in Cochin and subsequently assigned to the appellant wiih the permission of the Cochin Government."}}, {"text": "Travancore-Cochin", "label": "GPE", "start_char": 3772, "end_char": 3789, "source": "ner", "metadata": {"in_sentence": "On the merger of Travancore-Cochin with the Union of India, the Indian Electricity Act, D\n\n1910 was made applicable by the Part-B States Laws Act, 1951 (Act lllof 1951) to the Travancore-Cochin area, and the Cochin Electricity Regulation stood repealed."}}, {"text": "Union of India", "label": "ORG", "start_char": 3799, "end_char": 3813, "source": "ner", "metadata": {"in_sentence": "On the merger of Travancore-Cochin with the Union of India, the Indian Electricity Act, D\n\n1910 was made applicable by the Part-B States Laws Act, 1951 (Act lllof 1951) to the Travancore-Cochin area, and the Cochin Electricity Regulation stood repealed."}}, {"text": "Electricity Act", "label": "STATUTE", "start_char": 3826, "end_char": 3841, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Part-B States Laws Act, 1951", "label": "STATUTE", "start_char": 3878, "end_char": 3906, "source": "regex", "metadata": {}}, {"text": "Travancore", "label": "GPE", "start_char": 3931, "end_char": 3941, "source": "ner", "metadata": {"in_sentence": "On the merger of Travancore-Cochin with the Union of India, the Indian Electricity Act, D\n\n1910 was made applicable by the Part-B States Laws Act, 1951 (Act lllof 1951) to the Travancore-Cochin area, and the Cochin Electricity Regulation stood repealed."}}, {"text": "Travancore-Cochin area by the Part-B Stats Laws Act, 1951", "label": "STATUTE", "start_char": 4093, "end_char": 4150, "source": "regex", "metadata": {}}, {"text": "March 31, 1957", "label": "DATE", "start_char": 4155, "end_char": 4169, "source": "ner", "metadata": {"in_sentence": "On March 31, 1957 the Kerala Electricity Board."}}, {"text": "Kerala Electricity Board", "label": "ORG", "start_char": 4174, "end_char": 4198, "source": "ner", "metadata": {"in_sentence": "On March 31, 1957 the Kerala Electricity Board."}}, {"text": "s. 71", "label": "PROVISION", "start_char": 4224, "end_char": 4229, "source": "regex", "metadata": {"linked_statute_text": "the Travancore-Cochin area by the Part-B Stats Laws Act, 1951", "statute": "the Travancore-Cochin area by the Part-B Stats Laws Act, 1951"}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 4326, "end_char": 4354, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s.7(1)", "label": "PROVISION", "start_char": 4472, "end_char": 4478, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 4486, "end_char": 4514, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 7", "label": "PROVISION", "start_char": 4746, "end_char": 4750, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Clause 15(a)", "label": "PROVISION", "start_char": 4958, "end_char": 4970, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 5052, "end_char": 5061, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Section 7(1)", "label": "PROVISION", "start_char": 5299, "end_char": 5311, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 5319, "end_char": 5347, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 7(i)", "label": "PROVISION", "start_char": 5363, "end_char": 5370, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "cl. 15(a)", "label": "PROVISION", "start_char": 5550, "end_char": 5559, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 5796, "end_char": 5800, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Indian Flectricity Act, 1910", "label": "STATUTE", "start_char": 5812, "end_char": 5840, "source": "regex", "metadata": {}}, {"text": "s. 7(4)", "label": "PROVISION", "start_char": 6110, "end_char": 6117, "source": "regex", "metadata": {"linked_statute_text": "the Indian Flectricity Act, 1910", "statute": "the Indian Flectricity Act, 1910"}}, {"text": "s.6", "label": "PROVISION", "start_char": 6209, "end_char": 6212, "source": "regex", "metadata": {"linked_statute_text": "the Indian Flectricity Act, 1910", "statute": "the Indian Flectricity Act, 1910"}}, {"text": "s.7", "label": "PROVISION", "start_char": 6254, "end_char": 6257, "source": "regex", "metadata": {"linked_statute_text": "the Indian Flectricity Act, 1910", "statute": "the Indian Flectricity Act, 1910"}}, {"text": "Electricity Act", "label": "STATUTE", "start_char": 6272, "end_char": 6287, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sl)ptember 5, 1959", "label": "DATE", "start_char": 6312, "end_char": 6330, "source": "ner", "metadata": {"in_sentence": "1910, with effect fr0m Sl)ptember 5, 1959."}}, {"text": "Section 6", "label": "PROVISION", "start_char": 6332, "end_char": 6341, "source": "regex", "metadata": {"linked_statute_text": "the Indian Flectricity Act, 1910", "statute": "the Indian Flectricity Act, 1910"}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 6349, "end_char": 6377, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 7A", "label": "PROVISION", "start_char": 9424, "end_char": 9434, "source": "regex", "metadata": {"statute": null}}, {"text": "October 24, 1959,'llthe", "label": "DATE", "start_char": 9443, "end_char": 9466, "source": "ner", "metadata": {"in_sentence": "(7) Where an undertaking is purchased under this sec tion, the purchaser shall pay to the licensee the purchase price determined in accordance with the provisions of sub-section (4) of section 7A.\" E\n\nOn October 24, 1959,'llthe State Electricity Board served upon the appellant a notice Ex."}}, {"text": "November 14, 1960", "label": "DATE", "start_char": 9900, "end_char": 9917, "source": "ner", "metadata": {"in_sentence": "On November 14, 1960, the appellant filed a wrlt petition in the High Court of Kerala impleading the State of Kerala and the Kerala State Electricity Board and asking for the issue of al>' propriate writs and orders restraining them from taking any ac- G tion pursuant to the notices, Exs."}}, {"text": "High Court of Kerala", "label": "COURT", "start_char": 9962, "end_char": 9982, "source": "ner", "metadata": {"in_sentence": "On November 14, 1960, the appellant filed a wrlt petition in the High Court of Kerala impleading the State of Kerala and the Kerala State Electricity Board and asking for the issue of al>' propriate writs and orders restraining them from taking any ac- G tion pursuant to the notices, Exs."}}, {"text": "Kerala State Electricity Board", "label": "ORG", "start_char": 10022, "end_char": 10052, "source": "ner", "metadata": {"in_sentence": "On November 14, 1960, the appellant filed a wrlt petition in the High Court of Kerala impleading the State of Kerala and the Kerala State Electricity Board and asking for the issue of al>' propriate writs and orders restraining them from taking any ac- G tion pursuant to the notices, Exs."}}, {"text": "December 20,\n\n1961", "label": "DATE", "start_char": 10205, "end_char": 10223, "source": "ner", "metadata": {"in_sentence": "B, D, E and G. On December 20,\n\n1961, a learned single Judge of the High Court passed the follow ing order:\n\n\"In view of the representation made before me by both the learned Advocate-General appearing for the State, the 1st respondent, and Mr. Krishnaswami Iyengar, learned\n\nH counsel appearing for the Kerala State Electricity Board, the second respondent, that for the purpose of this writ petit'on, t'ie notices issued by the Kerala State Electricity Board, Exs."}}, {"text": "Krishnaswami Iyengar", "label": "OTHER_PERSON", "start_char": 10432, "end_char": 10452, "source": "ner", "metadata": {"in_sentence": "B, D, E and G. On December 20,\n\n1961, a learned single Judge of the High Court passed the follow ing order:\n\n\"In view of the representation made before me by both the learned Advocate-General appearing for the State, the 1st respondent, and Mr. Krishnaswami Iyengar, learned\n\nH counsel appearing for the Kerala State Electricity Board, the second respondent, that for the purpose of this writ petit'on, t'ie notices issued by the Kerala State Electricity Board, Exs."}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 11866, "end_char": 11883, "source": "ner", "metadata": {"in_sentence": "G. Aggrieved by this order, the appellant filed an appeal in the Kerala High Court impleading the State Government only as the party respondent."}}, {"text": "October 4, 1962", "label": "DATE", "start_char": 12066, "end_char": 12081, "source": "ner", "metadata": {"in_sentence": "By its D judgment dated October 4, 1962, a Division Bench of the High Court dismissed the appeal."}}, {"text": "Arts. 133(l)(a) and 133(l)(c)", "label": "PROVISION", "start_char": 12828, "end_char": 12857, "source": "regex", "metadata": {"statute": null}}, {"text": "Vishwanath Sastry", "label": "OTHER_PERSON", "start_char": 12912, "end_char": 12929, "source": "ner", "metadata": {"in_sentence": "On behalf of the appellant, Mr. Vishwanath Sastry contended G that ([) as the two years' notice in writing of the election to purchase the undertaking on the expiry of December, 2, 1960 was not served on the appellant as required by the old s. 7(4) of the Indian Electricity Act, 1910, the appellant acquired a vested right to ho.", "canonical_name": "Vishwanath Sastry"}}, {"text": "s. 7(4)", "label": "PROVISION", "start_char": 13121, "end_char": 13128, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 13136, "end_char": 13164, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s.6", "label": "PROVISION", "start_char": 13418, "end_char": 13421, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 13429, "end_char": 13457, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s.6(l)(a)", "label": "PROVISION", "start_char": 13603, "end_char": 13612, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "s. 7(4)", "label": "PROVISION", "start_char": 13787, "end_char": 13794, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "s.6(1)", "label": "PROVISION", "start_char": 13909, "end_char": 13915, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "s.6(1)", "label": "PROVISION", "start_char": 14037, "end_char": 14043, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "s.6", "label": "PROVISION", "start_char": 14129, "end_char": 14132, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "s.6", "label": "PROVISION", "start_char": 14206, "end_char": 14209, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "s.6", "label": "PROVISION", "start_char": 14315, "end_char": 14318, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "5, 1959", "label": "DATE", "start_char": 14352, "end_char": 14359, "source": "ner", "metadata": {"in_sentence": "until the expiry of a further period of ten years, that 1s to say, unll.l December, 2, 1970, and this vested right was H not taken away either expressly or by necessary implication by the new s.6 of the Indian Electricity Act, 1910 introduced by the amending Act 32 of 1958; (2) the expression \"on the expiration of each such period as is specified in the license\" in thi; new s.6(l)(a) means a period which has not expired and on the expiry of which the option may be legally exercised, and since in the absence of the two years' notice required under the old s. 7(4), the option of purchase on the expiry of December 2, 1960 could not be legally L/ll!D)2SCI-15\n\nexercised, the new s.6(1) did not confer any option of purchase on A the expiry of December 2, 1960 and the first option exercisable under the new s.6(1) would be on the expiry of December 2, 1970;\n\n(3) sub-sections (4) and (5) of the new s.6 show that the period on the expity of which the option under sub-s(l) of s.6 is exercisable, is a period which would expire at least 18 mqnths after the coming into force of the new s.6, that is to say, after September 5, 1959, B and since the period expiring on December 2, 1960 is not such a period, the new s.6(1) did not confer any option of purchase on the expiry of December 2, 1960; and (4) in any event, the State Electricity Board having duly elected to purchase the undertaking on the expiry of December 2, 1960, the State Government acquir ed no option of purchase under sub-s(2) of s.7 of the Indian Elec 0 tricity Act, 1'910."}}, {"text": "s.6(1)", "label": "PROVISION", "start_char": 14443, "end_char": 14449, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "s.7", "label": "PROVISION", "start_char": 14727, "end_char": 14730, "source": "regex", "metadata": {"statute": null}}, {"text": "V.P. Gopalan Nambiar", "label": "LAWYER", "start_char": 14806, "end_char": 14826, "source": "ner", "metadata": {"in_sentence": "On behalf of the respondent, Mr. V.P. Gopalan Nambiar, the Advocate-General of Kerala, contended (!)", "canonical_name": "V. P. Gopalan Nambiar"}}, {"text": "s.7(4)", "label": "PROVISION", "start_char": 14926, "end_char": 14932, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 14940, "end_char": 14968, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s.7", "label": "PROVISION", "start_char": 15134, "end_char": 15137, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "s.6", "label": "PROVISION", "start_char": 15252, "end_char": 15255, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 15392, "end_char": 15396, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "December 2, 1970", "label": "DATE", "start_char": 15442, "end_char": 15458, "source": "ner", "metadata": {"in_sentence": "that the absence of two years' notice under the old s.7(4) of the Indian Electricity Act, 1910 did not confer upon the appellant a vested right to hold D the license until the expiry of December 2, 1970, and the immunity from compulsory purchase under the old s.7 arising from the non-service of the requisite two years' notice could be, and, in fact, was taken away by the new s.6, which required only one year's notice of intention to purchase the undertaking; (2) assuming that the appellant acquired under the old s. 7 a vested right to E hold the lic10.ise until December 2, 1970, sµch vested right was taken away by the new s.6, which expressly applies to licenses granted before its commencement, and the period of 25 years is a period specified in as the license on the expiry of which the option of purchase was legally exercisable; (3) sub-sections (4) and (5) of the new s.6 did not cut down the plain me(lning of sub-s(l) of the P iCction and the option on the expiry of the period of 25 years was vested under sub-s(l) of s.6, though this period did not expire 18 months after September 5, 1959; and (4) as the State Electricity Board did not send to the State Government any intimation in writing of its intention to exercise the option on the expiry of December 2, 1960 as required by sub-s(4) of s.6, the Board must G be deemed to have elected not to exercise this option, and consequently by sub-s(2) of s.6, the State Govermnent is vested with the option."}}, {"text": "s.6", "label": "PROVISION", "start_char": 15504, "end_char": 15507, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "s.6", "label": "PROVISION", "start_char": 15756, "end_char": 15759, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "s.6", "label": "PROVISION", "start_char": 15909, "end_char": 15912, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "September 5, 1959", "label": "DATE", "start_char": 15964, "end_char": 15981, "source": "ner", "metadata": {"in_sentence": "that the absence of two years' notice under the old s.7(4) of the Indian Electricity Act, 1910 did not confer upon the appellant a vested right to hold D the license until the expiry of December 2, 1970, and the immunity from compulsory purchase under the old s.7 arising from the non-service of the requisite two years' notice could be, and, in fact, was taken away by the new s.6, which required only one year's notice of intention to purchase the undertaking; (2) assuming that the appellant acquired under the old s. 7 a vested right to E hold the lic10.ise until December 2, 1970, sµch vested right was taken away by the new s.6, which expressly applies to licenses granted before its commencement, and the period of 25 years is a period specified in as the license on the expiry of which the option of purchase was legally exercisable; (3) sub-sections (4) and (5) of the new s.6 did not cut down the plain me(lning of sub-s(l) of the P iCction and the option on the expiry of the period of 25 years was vested under sub-s(l) of s.6, though this period did not expire 18 months after September 5, 1959; and (4) as the State Electricity Board did not send to the State Government any intimation in writing of its intention to exercise the option on the expiry of December 2, 1960 as required by sub-s(4) of s.6, the Board must G be deemed to have elected not to exercise this option, and consequently by sub-s(2) of s.6, the State Govermnent is vested with the option."}}, {"text": "s.6", "label": "PROVISION", "start_char": 16186, "end_char": 16189, "source": "regex", "metadata": {"statute": null}}, {"text": "s.6", "label": "PROVISION", "start_char": 16295, "end_char": 16298, "source": "regex", "metadata": {"statute": null}}, {"text": "Viswanatha Sastry", "label": "OTHER_PERSON", "start_char": 16392, "end_char": 16409, "source": "ner", "metadata": {"in_sentence": "We think that the fourth contention of Mr. Viswanatha Sastry is sound, and should be accepted.", "canonical_name": "Vishwanath Sastry"}}, {"text": "s.6", "label": "PROVISION", "start_char": 16618, "end_char": 16621, "source": "regex", "metadata": {"statute": null}}, {"text": "s.6", "label": "PROVISION", "start_char": 16819, "end_char": 16822, "source": "regex", "metadata": {"statute": null}}, {"text": "s.6", "label": "PROVISION", "start_char": 17206, "end_char": 17209, "source": "regex", "metadata": {"statute": null}}, {"text": "s.6", "label": "PROVISION", "start_char": 17398, "end_char": 17401, "source": "regex", "metadata": {"statute": null}}, {"text": "s.6", "label": "PROVISION", "start_char": 17459, "end_char": 17462, "source": "regex", "metadata": {"statute": null}}, {"text": "s.6", "label": "PROVISION", "start_char": 17915, "end_char": 17918, "source": "regex", "metadata": {"statute": null}}, {"text": "s.6", "label": "PROVISION", "start_char": 18212, "end_char": 18215, "source": "regex", "metadata": {"statute": null}}, {"text": "s.6", "label": "PROVISION", "start_char": 18340, "end_char": 18343, "source": "regex", "metadata": {"statute": null}}, {"text": "s.6", "label": "PROVISION", "start_char": 18390, "end_char": 18393, "source": "regex", "metadata": {"statute": null}}, {"text": "s.6", "label": "PROVISION", "start_char": 18467, "end_char": 18470, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 18593, "end_char": 18602, "source": "regex", "metadata": {"statute": null}}, {"text": "December 3,\n\n1960", "label": "DATE", "start_char": 18676, "end_char": 18693, "source": "ner", "metadata": {"in_sentence": "Section 6 came into force on September 5, 1959, and the relevant period expired on December 3,\n\n1960."}}, {"text": "s.6", "label": "PROVISION", "start_char": 18882, "end_char": 18885, "source": "regex", "metadata": {"statute": null}}, {"text": "s.6", "label": "PROVISION", "start_char": 19077, "end_char": 19080, "source": "regex", "metadata": {"statute": null}}, {"text": "le State Electricity Board", "label": "ORG", "start_char": 19204, "end_char": 19230, "source": "ner", "metadata": {"in_sentence": "le State Electricity Board was not required to give the notice under sub-s(4) of s.6 in respect of its option of purchase on the expiry of 25 years."}}, {"text": "s.6", "label": "PROVISION", "start_char": 19285, "end_char": 19288, "source": "regex", "metadata": {"statute": null}}, {"text": "s.6", "label": "PROVISION", "start_char": 19466, "end_char": 19469, "source": "regex", "metadata": {"statute": null}}, {"text": "s.6", "label": "PROVISION", "start_char": 19709, "end_char": 19712, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_194_200_EN", "year": 1965, "text": "BIDKARI\n\nSTATE OF UITAR PRADESH February 25, 1965\n\n[K. N. WANCHOO, J. R. MUDHOLKAR ANDS. M. SIKRI, JI.] B Criminal Trial-Insanity-Burden of proving-Indian Penal Code (Act 45 of 1860), s. 84-Indian Evidence Aot (1 of 1872), s. 105.\n\nThe appellant who killed a child in a cruel manner and injured others was tried and convicted under s. 302 Indian Penal Code, and his appeal before the High Court also failed. In his statement at the trial he did not specifically plead insanity but in both the courts C: the plea that being insane he could not be credited with the intention .requisite for the offence alleged was raised on his behalf. In appeal, by special leave. before the Supreme Court, it was urged on his behalf that despite the provisions of s. 105 Indian Evidence Act the burden of proving that the accu; ed had the requisite intention and therefore of proving that he was not insane was on the prosecution. The argument was sought to be supported by certain observations of the Court in Dahyabhai Chhaganbhai Thakkar's I> case. .\n\nHELD: (i) The burden of proving the intention of the accused person, where intention is an ingredient of the offence is on the prosecution and this burden never shifts. But intention can sometimes be only proved from circumstances and therefore it is sufficient for the prosecution to prove the acts of the accused and the circumstances in which they were committed. If from these an in- E. ference of the requisite intention can be reasonably drawn, the prosecution must be deemed to have discharged its burden. rrn6 G-197Bl\n\n(ii) Section 84 of the Indian Penal Code can no doubt be invoked by a person for nullifying the evidence adduced by the prosecution by establishing that he was at the relevant time incapable of knowing the nature of the act or that what he was doing was wrong or F contrary to law. The prosecution need not give evidence about the capacity of the accused to know the nature of the act or that it was wrong or contrary to law because these afe matters of presumption.\n\nEveryone is presumed to know the natural consequences of his act.\n\nSimilarly everyone is presumed to know the law. It is for this reason that s. 105 of the Evidence Act places upon the accused person the burden of proving the exception on which he relies. [197 B-Dl G\n\n(iii) The second part of s. 105 lays down that the Court shall presume the absence of circumstances on the basis of which the case could be said to come under a General Exception. But this presumption is rebuttable and the accused can rebut it either by leading evidence or by relying upon the prosecution evidence itself. If upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the R court as regards one or more of the ingredients of the offence including mens rea of the accused, he would be entitled to be acquitted.\n\nThis is very different from saying that the prosecution must also establish the sanity of the accused at the time of the commission of the offnce despite what has been expressly provided for in s. 105 of the Evidence Act. [196. E; 198 A-C]\n\nDahabhai Chhaganbhai Thakkar v. State of Gujarat, [19641 7 S.C.R. 361, explained and affirmed.\n\nBBIKARI II. STATE (ilffldholJ&at, J.) Hiil\n\nA CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.\n\n263 of 1964.\n\nAppeal by special leave from the judgment and order dated July 2, 1964 of the Allahabad High Court in Criminal Appeal No. 356 of 1964 and Ref. No. 15 of 1964.\n\nS. P. Varma, for the appellant.\n\n0. P. Rana, for the respondent..\n\nThe Judgment of the Court was delivered by Mudholkar, J. The appellant has appealed from the judgment of the High Court at Allahabad affirming his conviction for offences\n\n0 under ss. 302, 307 and 324, Indian Penal Code and confirming the sentence of death passed upon him in respect of the offence under s. 302 and also affirming the sentences passed in respect\" of the other two olfences.\n\nThe facts as found by the High Court are these: D The appellant had quarrelled with Mangali, PW 1, as Mangali reprimanded him over the grazing of his cattle in Mangali's field and damaging his crops. The appellant threatened Mangali that he would exterminate the latter's family. On February 25, 1957 at about 3-00 p.m. Babu Ram son of Mangali, aged about 7 or 8 years, Ram Ratia, aged about 2 years, daughter of Mangali's • brother and Punna, son of Baijnath, brother of Mangali and Dulli, daughter of one Ladda Kewat, aged about 10 or 11 years and some other children were playing in the village near the hut of Hiralal,\n\nP.W. 3. The appellant came there armed with a sickle and rushed at the children. He first struck a blow on Babu Ram, who fled away • and started CT'ng. Mangali's one year old daughter Lachhminia was also there at that time and the appellant ripped open that child's chest with the sickle as a result of which she died almost immediately. The appellant then struck blows on Ram Ratia and also on Punna. Hiralal, the brother of the appellant who was sleeping in his hut was awakened by the cries of children and rushed G out to save them. Thereupon the appellant struck a blow on Hiralal as well. Hearing the cries of children a number of villagers rushed to the spot but the appellant escaped from their clutches by run ning towards the river Ganges which is at a distance of about 75 paces from the place of the incident, jumped into the water and swam !<' the other shore and absconded. On October 11, 1957 proceed- B mgs under ss. 87 and 88 of the Code of Criminal Procedure were started against him and he was eventually proceeded against as an absconder. It was only on February 1, 1963 that he was arrested and thereafter sent up for trial. At that trial he was convicted and sentenced, as already stated.\n\n!he only point urged by Mr. Varma who appears for the appellant 1s that the appellant was a person of unsound mind and that he was not in a position to know or realise the nature of the acts\n\nL/B(D)2SCI-16\n\nwhich he was committing. Learned counsel argued that mens ea A being an essential ingredie'nt of all the offences with which the appellant was charged his conviction with respect to any of them cannot be sustained for the simple reason that no intention to cause deatp or to cause any injury whether resulting in death or not could possibly be attributed to a person who, when he committed the acts, was insane. Similar arguments appear to have been addres B sed before the Sessions Judge 11s well as the High . Court, even though in his examination under s. 342 of the Code of Criminal Procedure the appellant did not plead the defence of insani, ty.\n\nSection 84 of the Penal Code, one of the provisions in Ch. IV of the Penal Code, which deals with \"General Exceptions\" pro- 0 vides as follows :\n\n\"Act of a person of unsound mind. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.\" D Under s. 105 of the Indian Evidence Act, 1872 the burden ot proving the existence of circumstances bringing the case within any of the exceptions specified in the Penal Code lies upon the accused person. It further provides that in such a case the Court shall presume the absence of such circumstances. Illustration (a) to that pro- E vision runs as follows : -\n\n\"A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the Act.\n\nThe burden of proof is on A.\" Learned counsel, however, relies upon a decision of this Court r in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat('), and contends that it is for the prosecution to establish the necessary mens rea of the accused and that even though the accused may not have taken the plea of insanity or led any evidence to show that he was insane when he committed an offence of which intention is an ingredient the prosecution must satisfy the court that the G accused had the requisite intention. There is no doubt that the burden of proving an offence is always on the prosecution and that it never shifts. It would, therefore, be correct to say that intention, when it is an essential ingredient of an offence, has also to be established by the prosecution. But the state of mind of a person can ordinarily only be inferred from circumstances. Thus if a person B deliberately strikes another with a deadly weapon, which according to the common experience of mankind is likely to cause an injury and sometimes even a fatal injury depending upon the quality of the weapon and the part of the body on which it is struck, it would be reasonable to infer that what the accused did was accompanied\n\n(') [1964] 7 S.C.R. 361.\n\nBHIKARI v. STATE (Mudholkar, J.) 197\n\nA by the intention to cause a kind of injury which in fact resulted from the act. In such a case the prosecution must be deemed to have discharged the burden which rested upon it to establish an essential ingredient of the offence, namely the intention of the accused in inflicting a blow with a deadly weapon. Section 84 of the Indian Penal Code can no doubt be invoked by a person for nul- B lifying the evidence adduced by the prosecution by establishing that he was at the relevant time incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. Now it is not for the prosecution to establish that a person who strikes another with a deadly weapon was incapable of knowing the nature of the act or of knowing that what he was doing C was either wrong or contrary to law. Everyone is presumed to know the natural consequences of his act. Similarly everyone is also presumed to know the law. These are not facts which the pro\n\nsecution has to establish. Ii is for this reason that s. 105 of the Evidence Act places upon the accused person the burden of prov ing the exception upon which he relies. Mr. Varma, however, relies upon the following passage occurring in the aforementioned judg- D ment of this court: -\n\n\"The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions : (I) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by s. 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence--0ral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused \"on the ground that the general burden of proof resting on the prosecution was not discharged.\"\n\nand contends that according to the decision of this Court the legal position is otherwise.\n\nThis passage does not say anything different from what we have said earlier. Undoubtedly it is for the prosecution to prove beyond reasonable doubt that the accused had committed the\n\noffence with the requisite mens rea. Once that is done a presump- A tion that the accused was sane when he committed the offence\n\nwould arise. This presumption is rebutiable and he can rebut it either by leading evidence or by relying upon the prosecution evidence itself. If upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the court as regards one or more of the ingredients B of the offence including mens rea of the accused he would be entitled to be acquitted. This is very different from saying that the prosecution must also establish the sanity of the accused at the time of commission of the offence despite what bas been expressly provided for in s. 105 of the Evidence Act. c\n\nMr. Varma further contends that there is evidence on record from wliicb it can be inferred that the appellant was a person of unsound mind. In the first place, be points out, that no man in bis senses will go on attacking children indiscriminately and go to the length of ripping open the chest of one year old child. He then refers to the statement of Dulli, P.W. 6, and that of Hiralal P.W. 3 D in which the appellant is referred to as pagalwa and also to the specific statement of the former to the effect that the appellant was insane when be attacked the children. It seems to us that the indiscriminate maOJler in which the appellant attacked three innocent children and particularly bis act of ripping open the chest E of Lachhminia only shows the brutality of the assailant and cannot reasonably be regarded as a circumstance from which it could be inferred that he was of unsound mind. As regards the reference to the appellant as pagalwa by the two witnesses we must point out two relevant facts. In the first place Hiralal is the brother of the appellant while Dulli, as she herself admits, belongs to the F family of the appellant. Both are therefore interested in the appellant. Neither of them had on earlier occasions ever mentioned that the appellant was called pagalwa by the villagers or that any one shouted when the appellant killed Lachhminia that she was killed by the pagalwa. As Dulli herself admits, it was for the first time that she came out with this statement in cross-examination. Simi- G larly it was for the first time ill the cross-examination that she stated that the appellant was insane when be committed the crime.\n\nIt is because of this that the prosecution was allowed to cross.- examine her. Similarly Hiralal, after making the particular statement was, at the request of the prosecution, declared hostile and cross-examined. The earlier statements made by him which would B , give a lie to what he had stated in favour of the appellant at the trial were denied by him but the denial was false. In these circumstances the learned Sessions Judge disbelieved that part of the evidence of these two witnesses which tended to suggest that the appellant was a person of unsound mind and was known as such in the village.\n\nBHIKAI\\I V. STATE (MwiJwl/car, J.) 199\n\nMr. Vanna then relies on the following observations made by the learned Sessions Judge and says that in view of these observations it would appear that the learned Sessions Judge entertained a doubt about the sanity of the appellant and that, therefore, the benefit of that doubt must be given to him. The statement runs thus ;\n\n\"I am conscious of the fact that the standard of proof required from the accused for the\" proving of his (sic) insanity at the time of commission of the crime is not the standard of proof required from the prosecution but it is for the defence to prove that insanity existed at the time of commission of the crime and this burden cannot be discharg<:d merely by creating a doubt about his insanity.\" We find it difficult to construe these observations of the learned Sessions Judge to mean what learned Counsel says they mean. Immediately after the statement which we have quoted occurs the following in the judgment of the learned Sessions Judge.\n\n\"The defence must establish certain circumstances either by its own evidence or by the prosecution evidence from which the existence of insanity can reasonably be inferred.\n\nThe mere statement of hostile witnesses that he was insane cannot be accepted as sufficient evidence for the proof of the existence of the insanity.\" All that the learned Sessions Judge meant by saying \"by creating a doubt\" evidently was that by merely trying to throw doubt about his sanity at the relevant time an accused person cannot be said to discharge the burden of proving that he was insane.\n\nApart from that, as the learned Sessions Judge has himself F pointed out, the way in which the appellant used to conduct him self before the incident, the manner in which he acted during the incident and his subsequent conduct show, on the other hand, that he was perfectly sane. We can do no better than quote the relevant portion of the judgment of the learned Sessions Judge: e\n\n\"In the present case, there is evidence that up to the time of occurrence he has been doing his cultivation. There is no evidence on record to prove the characteristic of his habit from which it could be concluded that he was acting like an insane man. Before the commission of crime he did not beat any person. On the other hand, few months before the occurrence the accused admittedly picked up quarrel with Mangali and Bhaiva Lal and had given threatening to make their family indistinct. An insane person could not have done so and it is not expected that he would have continued his cultivation properly like a sane person.\n\nFurther, on the date of occurrence many children were playing including her own cousin sister. But first of all he gave a sickle blow only to Babu Ram and other children of\n\nthe family of Mangali and Bhaiya Lal and not to any other children. This shows that he did not act under the influenc~ of insanity but only with some previous deliberation and preparation. It is further in evidence that he had given threatening to the witnesses. He beat Hira Lal only when he tried to stop the act of be.ating of the children of Mangali and Bhaiya Lal's family with whom he had picked up quarrel previously. Lastly, a sense of fear prevailed in him and that is why he acted like a sane man by running and then escaping by jumping into the Ganges river.\n\nSo, in my view all these circumstances lead to one conclusion that he was not insane and had acted like a sane man and with some motive.\"\n\nWe entirely agree with these observations of the learned Sessions Judge and also with the conclusion arrived at by him that the case of the appellant does not fall under the exception created by s. 84\n\nof the Indian Penal Code. In the result we dismiss the appeal and affirm the conviction and sentences passed on the appellant D in respect of each of the three offences for which he was found guilty by the learned Sessions Judge.\n\nAppeal dimiissed.", "total_entities": 67, "entities": [{"text": "BIDKARI", "label": "PETITIONER", "start_char": 0, "end_char": 7, "source": "metadata", "metadata": {"canonical_name": "BIDKARI", "offset_not_found": false}}, {"text": "STATE OF UITAR PRADESH", "label": "RESPONDENT", "start_char": 9, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "STATE OF UITAR PRADESH", "offset_not_found": false}}, {"text": "February 25, 1965", "label": "DATE", "start_char": 32, "end_char": 49, "source": "ner", "metadata": {"in_sentence": "BIDKARI\n\nSTATE OF UITAR PRADESH February 25, 1965\n\n[K. N. WANCHOO, J. R. MUDHOLKAR ANDS."}}, {"text": "K. N. WANCHOO, J.", "label": "JUDGE", "start_char": 52, "end_char": 69, "source": "metadata", "metadata": {"canonical_name": "K.N. 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P. Varma", "label": "LAWYER", "start_char": 3512, "end_char": 3523, "source": "ner", "metadata": {"in_sentence": "S. P. Varma, for the appellant."}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 3548, "end_char": 3555, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the respondent..\n\nThe Judgment of the Court was delivered by Mudholkar, J. The appellant has appealed from the judgment of the High Court at Allahabad affirming his conviction for offences\n\n0 under ss."}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 3622, "end_char": 3631, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the respondent..\n\nThe Judgment of the Court was delivered by Mudholkar, J. The appellant has appealed from the judgment of the High Court at Allahabad affirming his conviction for offences\n\n0 under ss.", "canonical_name": "R. MUDHOLKAR"}}, {"text": "ss. 302, 307 and 324", "label": "PROVISION", "start_char": 3759, "end_char": 3779, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 3781, "end_char": 3798, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302", "label": "PROVISION", "start_char": 3884, "end_char": 3890, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Mangali", "label": "WITNESS", "start_char": 4055, "end_char": 4062, "source": "ner", "metadata": {"in_sentence": "The facts as found by the High Court are these: D The appellant had quarrelled with Mangali, PW 1, as Mangali reprimanded him over the grazing of his cattle in Mangali's field and damaging his crops."}}, {"text": "Mangali", "label": "OTHER_PERSON", "start_char": 4131, "end_char": 4138, "source": "ner", "metadata": {"in_sentence": "The facts as found by the High Court are these: D The appellant had quarrelled with Mangali, PW 1, as Mangali reprimanded him over the grazing of his cattle in Mangali's field and damaging his crops."}}, {"text": "February 25, 1957", "label": "DATE", "start_char": 4254, "end_char": 4271, "source": "ner", "metadata": {"in_sentence": "On February 25, 1957 at about 3-00 p.m. Babu Ram son of Mangali, aged about 7 or 8 years, Ram Ratia, aged about 2 years, daughter of Mangali's • brother and Punna, son of Baijnath, brother of Mangali and Dulli, daughter of one Ladda Kewat, aged about 10 or 11 years and some other children were playing in the village near the hut of Hiralal,\n\nP.W. 3."}}, {"text": "Babu Ram", "label": "OTHER_PERSON", "start_char": 4291, "end_char": 4299, "source": "ner", "metadata": {"in_sentence": "On February 25, 1957 at about 3-00 p.m. Babu Ram son of Mangali, aged about 7 or 8 years, Ram Ratia, aged about 2 years, daughter of Mangali's • brother and Punna, son of Baijnath, brother of Mangali and Dulli, daughter of one Ladda Kewat, aged about 10 or 11 years and some other children were playing in the village near the hut of Hiralal,\n\nP.W. 3."}}, {"text": "Ram Ratia", "label": "OTHER_PERSON", "start_char": 4341, "end_char": 4350, "source": "ner", "metadata": {"in_sentence": "On February 25, 1957 at about 3-00 p.m. Babu Ram son of Mangali, aged about 7 or 8 years, Ram Ratia, aged about 2 years, daughter of Mangali's • brother and Punna, son of Baijnath, brother of Mangali and Dulli, daughter of one Ladda Kewat, aged about 10 or 11 years and some other children were playing in the village near the hut of Hiralal,\n\nP.W. 3."}}, {"text": "Punna", "label": "OTHER_PERSON", "start_char": 4408, "end_char": 4413, "source": "ner", "metadata": {"in_sentence": "On February 25, 1957 at about 3-00 p.m. Babu Ram son of Mangali, aged about 7 or 8 years, Ram Ratia, aged about 2 years, daughter of Mangali's • brother and Punna, son of Baijnath, brother of Mangali and Dulli, daughter of one Ladda Kewat, aged about 10 or 11 years and some other children were playing in the village near the hut of Hiralal,\n\nP.W. 3."}}, {"text": "Baijnath", "label": "OTHER_PERSON", "start_char": 4422, "end_char": 4430, "source": "ner", "metadata": {"in_sentence": "On February 25, 1957 at about 3-00 p.m. Babu Ram son of Mangali, aged about 7 or 8 years, Ram Ratia, aged about 2 years, daughter of Mangali's • brother and Punna, son of Baijnath, brother of Mangali and Dulli, daughter of one Ladda Kewat, aged about 10 or 11 years and some other children were playing in the village near the hut of Hiralal,\n\nP.W. 3."}}, {"text": "Dulli", "label": "OTHER_PERSON", "start_char": 4455, "end_char": 4460, "source": "ner", "metadata": {"in_sentence": "On February 25, 1957 at about 3-00 p.m. Babu Ram son of Mangali, aged about 7 or 8 years, Ram Ratia, aged about 2 years, daughter of Mangali's • brother and Punna, son of Baijnath, brother of Mangali and Dulli, daughter of one Ladda Kewat, aged about 10 or 11 years and some other children were playing in the village near the hut of Hiralal,\n\nP.W. 3."}}, {"text": "Ladda Kewat", "label": "OTHER_PERSON", "start_char": 4478, "end_char": 4489, "source": "ner", "metadata": {"in_sentence": "On February 25, 1957 at about 3-00 p.m. Babu Ram son of Mangali, aged about 7 or 8 years, Ram Ratia, aged about 2 years, daughter of Mangali's • brother and Punna, son of Baijnath, brother of Mangali and Dulli, daughter of one Ladda Kewat, aged about 10 or 11 years and some other children were playing in the village near the hut of Hiralal,\n\nP.W. 3."}}, {"text": "Hiralal", "label": "WITNESS", "start_char": 4585, "end_char": 4592, "source": "ner", "metadata": {"in_sentence": "On February 25, 1957 at about 3-00 p.m. Babu Ram son of Mangali, aged about 7 or 8 years, Ram Ratia, aged about 2 years, daughter of Mangali's • brother and Punna, son of Baijnath, brother of Mangali and Dulli, daughter of one Ladda Kewat, aged about 10 or 11 years and some other children were playing in the village near the hut of Hiralal,\n\nP.W. 3."}}, {"text": "Lachhminia", "label": "OTHER_PERSON", "start_char": 4779, "end_char": 4789, "source": "ner", "metadata": {"in_sentence": "Mangali's one year old daughter Lachhminia was also there at that time and the appellant ripped open that child's chest with the sickle as a result of which she died almost immediately."}}, {"text": "Punna. Hiralal", "label": "OTHER_PERSON", "start_char": 4990, "end_char": 5004, "source": "ner", "metadata": {"in_sentence": "The appellant then struck blows on Ram Ratia and also on Punna."}}, {"text": "Hiralal", "label": "OTHER_PERSON", "start_char": 5173, "end_char": 5180, "source": "ner", "metadata": {"in_sentence": "Thereupon the appellant struck a blow on Hiralal as well.", "canonical_name": "Hira Lal"}}, {"text": "October 11, 1957", "label": "DATE", "start_char": 5486, "end_char": 5502, "source": "ner", "metadata": {"in_sentence": "On October 11, 1957 proceed- B mgs under ss."}}, {"text": "ss. 87 and 88", "label": "PROVISION", "start_char": 5524, "end_char": 5537, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 5545, "end_char": 5571, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "February 1, 1963", "label": "DATE", "start_char": 5669, "end_char": 5685, "source": "ner", "metadata": {"in_sentence": "It was only on February 1, 1963 that he was arrested and thereafter sent up for trial."}}, {"text": "Varma", "label": "OTHER_PERSON", "start_char": 5835, "end_char": 5840, "source": "ner", "metadata": {"in_sentence": "he only point urged by Mr. Varma who appears for the appellant 1s that the appellant was a person of unsound mind and that he was not in a position to know or realise the nature of the acts\n\nL/B(D)2SCI-16\n\nwhich he was committing."}}, {"text": "s. 342", "label": "PROVISION", "start_char": 6570, "end_char": 6576, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 6584, "end_char": 6610, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 84", "label": "PROVISION", "start_char": 6667, "end_char": 6677, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 6685, "end_char": 6695, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "IV of the Penal Code", "label": "STATUTE", "start_char": 6726, "end_char": 6746, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 105", "label": "PROVISION", "start_char": 7076, "end_char": 7082, "source": "regex", "metadata": {"linked_statute_text": "IV of the Penal Code", "statute": "IV of the Penal Code"}}, {"text": "Indian Evidence Act, 1872", "label": "STATUTE", "start_char": 7090, "end_char": 7115, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 7233, "end_char": 7243, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "[1964] 7 S.C.R. 361", "label": "CASE_CITATION", "start_char": 8765, "end_char": 8784, "source": "regex", "metadata": {}}, {"text": "Section 84", "label": "PROVISION", "start_char": 9136, "end_char": 9146, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 9154, "end_char": 9171, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 105", "label": "PROVISION", "start_char": 9855, "end_char": 9861, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 10567, "end_char": 10572, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 10580, "end_char": 10597, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 105", "label": "PROVISION", "start_char": 12329, "end_char": 12335, "source": "regex", "metadata": {"statute": null}}, {"text": "Dulli", "label": "WITNESS", "start_char": 12713, "end_char": 12718, "source": "ner", "metadata": {"in_sentence": "He then refers to the statement of Dulli, P.W. 6, and that of Hiralal P.W. 3 D in which the appellant is referred to as pagalwa and also to the specific statement of the former to the effect that the appellant was insane when be attacked the children."}}, {"text": "Simi- G larly", "label": "OTHER_PERSON", "start_char": 13871, "end_char": 13884, "source": "ner", "metadata": {"in_sentence": "Simi- G larly it was for the first time ill the cross-examination that she stated that the appellant was insane when be committed the crime."}}, {"text": "Vanna", "label": "OTHER_PERSON", "start_char": 14661, "end_char": 14666, "source": "ner", "metadata": {"in_sentence": "BHIKAI\\I V. STATE (MwiJwl/car, J.) 199\n\nMr. Vanna then relies on the following observations made by the learned Sessions Judge and says that in view of these observations it would appear that the learned Sessions Judge entertained a doubt about the sanity of the appellant and that, therefore, the benefit of that doubt must be given to him."}}, {"text": "Bhaiva Lal", "label": "OTHER_PERSON", "start_char": 17015, "end_char": 17025, "source": "ner", "metadata": {"in_sentence": "On the other hand, few months before the occurrence the accused admittedly picked up quarrel with Mangali and Bhaiva Lal and had given threatening to make their family indistinct.", "canonical_name": "Bhaiva Lal"}}, {"text": "Bhaiya Lal", "label": "OTHER_PERSON", "start_char": 17423, "end_char": 17433, "source": "ner", "metadata": {"in_sentence": "But first of all he gave a sickle blow only to Babu Ram and other children of\n\nthe family of Mangali and Bhaiya Lal and not to any other children.", "canonical_name": "Bhaiva Lal"}}, {"text": "Hira Lal", "label": "OTHER_PERSON", "start_char": 17668, "end_char": 17676, "source": "ner", "metadata": {"in_sentence": "He beat Hira Lal only when he tried to stop the act of be.ating of the children of Mangali and Bhaiya Lal's family with whom he had picked up quarrel previously.", "canonical_name": "Hira Lal"}}, {"text": "s. 84", "label": "PROVISION", "start_char": 18302, "end_char": 18307, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 18316, "end_char": 18333, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1965_3_1_16_EN", "year": 1965, "text": "PUNJAB DISTILLING INDUSTRIES LID.\n\nCOMMISSIONER OF INCOME-TAX, PUNJAB\n\nFebruary 9, 1965\n\n[K. SUBBA RAO, F..AGHUBAR DAYAL, J. R. MUDHOLKAR,\n\nR. S. BACHAWAT AND V. RAMASWAMI, JJ.]\n\nIndia;, Incomet\"x Act, 1022 (11 0£ 1922), s. 2(A) (d)--Distribut:on on reduction of company's cap'tal to the extent oJ accnmulated profits treated as 'dividend'-Si:cli dividend whether 'income' under C Entry 54, List I, Government of India Act, 1935-Section whether ultra vires.\n\n'Distribution'-Meaning of-Whether synonymous with 'paid' or 'credited' in s. 16(2) Gf the Income-tax Act-Notional distribution whether takes place on issue of certificate under s. 61 ( 4) of the Indian Companies Act, 1913. '\n\nThe appellant company reduced its capital and the reduction \"\"\" confirmed by the High Court. On November ~. 1954, i.e. during the course of the appellant's accounting year eneling November 30, 1954, the Registcar of Companies issued the requisite certificate under s. 61 ( 4) of the Indian Companies Act. The srplus share capital cansequent on reduction was, however, not refunded to the shatilholders during the said accounting year. It was refunded by actual payment or by credit entries in the next accounting year which ended on November 30, 1955. The Income-tax Officer held that the said distribution to the extent of accumulated profits was 'dividend' under s. 2(6A) (d) of the Indian Income-tax Act, 1922. He further held that the distribution took place in the accounting year ending Novemter 30, 1955, relevant for the assessment year 1956-57. On these findings he calculated the rebate on super-tax in the terms of\n\ncl. (i)(b) of the second proviso to paragraph D of Part II of the first schedule to the Finance Act, 1956. The findings of the Income-tax Officer were upheld by the Appellate Assistant Commissioner and the Appellate Tribunal, and also, in reference, by the High Court. The appellant came to the Suprernen Court by certificate.\n\nIt was contended on l:ehalf of the appellant: (1) In defining 'dividend' to include capital receipts resulting from distribution of capital on reduction, the legislature went beyond the ambit of entry 54, List I, Seventh Schedule, Government of India Act, 1935, and s. 2(6A)(d) of the Indil!n Income-tax Act, 1922 v;'lls therefore, ultra vires. (2) The certificate of the Registrar under s. 61 ( 4) of the Indian Companies Act was issued on November 4, 1954 and therefore the 'distribution' under s. 2(6A)(d) took place in the previous year relevant to the assessment year 1955-56.\n\nHELD: The expression 'income' in entry 54 List I of the Seventh Schedule to the Government of India Act, 1935, and the corresponding entry 82 of List I of the Seventh Schedule to the Constitution of India must be widely and liberally construed so as to enable the Legislature to provide by law for the prevention of evasion of Income-tax, [5H; 6A l\n\nUnited Provinces v. Atiqa Begum, P9401 F.C.R. 110, Sardar Baldev Singk v. Commissioner ot Income-tax, Delhi and Aimer, [1961] 1 S. C.R. 482, Ba!aji v. Income-tax Officer Special Investigation Circle, [1962] 2 S.C.R. 983 and Navnitlal C. Javeri v. K. K.. Sen, Appellate Assistant Commissioner of Income-tax 'D' Ranae, Bombay,\n\n[196.5] 1 S.C.R. 909, referred to.\n\nA company may on the pretext of reducing its capital, utilise its accumulated profits to pay eack to the shareholders the whole or part of the paid up amounts on the shares. This is a division of profits under the guise of division of capital. If this were permitted there would be evasion of super-tax. Section 2(6A)(d) embodies a law to prevent such evasion and hence it ialls within the ken of entry 54 of List I of Schedule Seven to the Government ot India Act, 1935. r6H; 7A, Gl\n\nThere is no inconsistency between a receipt being a capital one under the company law and by fiction being treated as taxable under the Income-tax Act. r7F-Gl Per Subba Rao. Mudholkar and Ramaswami, JJ. The expression 'distribution' connotes so1nething actual and not notional.\n\nLike 'paid' or 'credited' in s. 16(2), distribution' signifies 'the discharge of the company's liability and making the dividnd available to the members entitled thereto. raD, F, G]\n\n\nDistribution can 1:e physical, it can be constructive.\n\nOne may distribute assets between diffecent shareholders either by crediting the amount due to each one of them in their respective accounts, or by actually paying to each one of them the omount due to him. raD]\n\nDistribution in the above manner may take place partly in one\n\nyear and partly in another. But the amount of accumulated profits '-\" is fixed by the resolution of the company reducing its capital, and 'l! the figure does not change with the date of payment or credit. r9D, El\n\nIn the pcesent case the payments and credits were actually given during the accounting year ending November 30, 1955. The dividend under s. 2(6A)(d) must be deemed to hav.e been distributed in the said year. The relevant assessment year therefore was 1956-57. [lOFl\n\nPer Raghubar Dayal and Bachawat, JJ.\n\nThe word 'distributed', in s. 2(6A)(d) does not mean 'paid' or 'credited'. Cases under s. 16(2) are not relevant to the issue. r14G-H]\n\nThe 'distribution' contemplated by s. 2(6A)(d) is distribution at the time of reduction of capital, that is to sav, when the resolution of the company reducing the c'apital takes effect. It means allotment or app01iionment of the surplus among the shareholders; this allotment takes place and each shareholder gets a vested right to hi• port10n of the surplus as soon as the capital stands reduced. [12F-H]\n\nWhile the distritution as above takes place on a single date i.e. the date . of the reduction of capital, the payments to the shareholders either actual or by credit entries in books of account may be made subsequer, itly. and on different dates. The successive payments cannot be 'd1stnbut10n' contemplated bys. 2(6A) (d). ri3A-Cl\n\nPl\"NJAB DISTILLERIES v. c. I. T. (Subba Rao, J.) 3\n\nIn the instant case the resolution for the reduction of the capital of the company and the consequential refund of the surplus capital to the shareholder took effect on November 4, 1954. Consequently the distribution of the 'dividend' as defined by s. 2(6A)(d) took place on that date i.e. during the previous year corresponding to th• assessment year 1955-56. [15Bl\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 414 of 1965.\n\nAppeal from the judgment and order dated February 21, 1962, of the Punjab High Court in I.T. Reference No. 9 of 1959.\n\nN. C. Chatterjee and R. V. Pillai, for the appellant.\n\nC C. K. Daphtary, Attorney-General, R. Ganapathy Iyer, R. N.\n\nSachthcy for R. Ii. Dhebar, for the respondent.\n\nThe Judgment of SUBBA RAo, MUDHOLKAR and RM!ASWAMI JJ. was delivered by SuBBA RAO, J. The dissenting Opinion of\n\nDAYAL and BACHAWAT JJ. was delivered by BACIIA\\VAT J.\n\nSubba Rao, J.\n\nThis appeal by certificate rabs the main question whether s. 2(6A)(d) of the Indian Income-tax Acl, 1922, hereinafter called the Act, is ultra vire! the Central Legislature.\n\nThe ass;; ssee, a public limited company, was incorporated on May 23, 1945, under the Indian Companies Act, 1913, with a share capital of Rs. 50 lakhs. On December 15. 1947, at the instance of the appellant the High Court sanctioned the reduction o( the capital of the company from Rs. 50 lakhs !cJ Rs. 25 iakhs. On December 16, 1953, the High Court sanctioned a further reduction of the share capital from Rs. 25 lakhs to Rs. 15 Jakhs. 0;1 November 4, 1954, the Registrar of Companies granted the requisite certificate under s. 61(4) of the Indian Companies Act.\n\nOn November ), 1954, the appellant issued notices to the shareholders inviting applications for the refund of share capital so reduced.\n\nOn the receipt of the applications, appropriate debit entries were made in the accounts of the shareholders and the amounts were actually paid to' them during the previous year, i.e., December I, 1954, to November 30, 1955. Under s. 2(6A)(d) of a the Act, \"dividend\" includes any distribution by a company on the reduction of its capital to the extent to which the company possesses accumulated profits, whether such accumulated profits have been capitalised or not. In assessing the income of the appellant-company for the assessment year 1956-57, the Income-tax Officer held that the said dividends were distributed during the H accounting year and on that finding he calculated the rebate on super-tax in terms of cl. (i)(b) of the second proviso to paragraph D of Part II of the first schedule to the Finance Act, 1956. ff the dividends were distributed during the accounting year. i.e., December !, 1953, to November 30, 1954, the appellant would be entitled to a higher rate of rebate on super-tax under cl. (ii) of the first proviso to paragraph D of Part TI of the first schedule to the Finance Act, 1956. The Income-tax Officer further helcl that the\n\n. ·!.\n\nassessee's accumulated profits at the time of the reduction of the A. capital from °]{s. 25 lakhs to Rs. 15 lakhs were Rs. 8,42,337. On appeal the Appellate Assistant Commissioner accepted the said figure arrived at the Income-tax Officer. On further appeal, the Income-tax Appellate Tribunal, for the reasons recorded by it in its order, reduced the figure under the said head by a sum of Rs. 3.61,40S.\n\nIt was Contended on behalf of the assessee that in as much as the certifieate from the Registrar for the reduction of the capital from Rs. 25 !akhs to Rs. 15 lakhs was obtained on Novrmber 4.\n\n1954, the distribution of the dividends should be deemed to have taken place duing the year 1953-54 and, therefore, the said div1- C dends were notexigible to tax for the assessment year. The Incomctax Oflier. the Appellate Assistant Commissioner and the Tribunal concurrently rejecie::I that plea and held that, as the vctual paymerrt to the shareholders of the refund of the capit1 l and th~ debit in 'ti1e accounts of the shareholders were effected in the accounting year, the said dividends must be held to have been D distributed in the accounting year.\n\nThere is another sum of Rs. 11,687-3-0 received by the appellant as security deposit on account of empty bottles. A quesfr:n was raised whether the said amount could be considered as capita! gains and, therefore, should be excluded from the accumukted proflts.\n\nThe Appellate Tribunal held in favour of the assessee The assesse.; and the Commissioner of Income-tax filed two applications before the Tribunal for, referring. ques'.ions of !aw arising out ef the Tribunal's order to the High Court. The Tribunal referred the fallowing questions of law to the High Court for its opinion.\n\n(!) Whether the provisions of s. 2(6A)(d) of the Indian Income-tax Act are ultra vires of the Central Legislature:.\n\n(2) Whether the accumulated profits amounting to Rs. 4,69,244-13-0 could be deemed to have been distributed on the reduction of the capital from Rs. 25 lakhs to Rs. IS lakhs within the meaning of Section 2(6A)(d) of the Indian Income-tax Act.\n\n(3) Whether the amount of Rs. 11,687-3-0 received by the assessee as security deposit on account of empty bottles could be considered as Capital Gains.\n\n(4) Whether the accumulated profits could be considered as dividend deemed to have been distributed in the assessment year 1955-56 in view of the certificate granted by the Registrar of Companies under Section 61 (4) of the Indian Companies Act, 1913, or could be considered as dividend deemed to have been distributed in the assessment year 1956-57 because the debits of refunds were actually made in the accounts of the shareholders during the accounting period of the assessment year 1956-57.\n\nPUNJAD DISTILLERIES v. o. I. T. (Subba Rao, J.) I>\n\nThe High Court answered all the questions against the assessee. Hence the appeal.\n\nMr. N. C. Chatterjee, learned counsel for the assessee, did not contest the correctness of the answer given by the High Court in regard to the third question and, therefore, nothing further need be said about it.\n\nThe first question is whether s. 2(6A)(d) of the Act is ultra vires the Central Legislature.\n\nSub-section (6A) was inserted in s. 2 of the Act by s. 2 of the Indian Income-tax (Amendment) Act, 1939 (Act VII of 1939). Section 2(6A)(d) of the Act reads:\n\n\" 'Dividend' includes any distribution by a company on the reduction of its capital to the extent to which the company possesses accumulated profits which arose after the end of the previous year ending next before the !st day of April, 1933, whether such accumulated profits have been capitalised or not.\" The said Act VII of 1939 was passed by the Central Legislature in exercise of its powers conferred under s. 100 of the Government of India Act, 1935, read with entry 54 of List I of the Seventh Schedule thereof. Entry 54 reads : \\'Tax on income other than agricultural income.\" Mr. Chatterjee contends that while the said entry 54 enables E the appropriate Legislature to impose a tax on \"income'', the L:-\n\ngislature by enlarging the definition of dividend so as to include the amount received by a shareholder towards the share cpital c8ntributed by him, which capnot possibly be income, seeks t:i tax a capital receipt, and, therefore, the said clause is ultra vires the F Central Legislature.\n\nMr. R. Ganapathy Iyer, learned counsel for the Revenue, contends that a legislative entry must receive the widest connotation and should not be interpreted in any narrow or restricted sense, and if so construed the said entry enables the Lligislature to make a law to prevent evasion of tax on income by devious o methods and that the Legislature in the instant case seeks to prevent the growing evil of tax evasion by companies distributing profits under the guise of reduction of capital.\n\nIt 'is well settled rule of construction that entries in the legislative lists cannot be read in a narrow or restricted sense: they should be construed most liberally and in their widest amplitude.\n\nR In the words of Gwyer, C. J., in The United Provinces v. Atiqa Begum(') \"each general word should be held to extend to all ancillary or subsidiary matters v:h!; h c:an fairly. and reasonably b.e said to be comprehended by 1t. This Court m a number of decisions held that the expression \"income\" in entry 54 of List I of the Seventh Schedule to the Government of India Act, 1935, and the\n\n(') [1940) F.C.R. l!C.\n\ncorresponding entry 82 of List 1 of the Seventh Schedule to the A Constitution o~ India, shall be widely and liberally construed so as to cmible a Legislature to provide by law for the prevention of evas10n of rncome-tax. In Sardar Baldev Singh v. Commissioner of Income-tax, Delhi and Ajmer (') this Court maintained the constitutional validity of s. 23A(1) of the Income-tax Act, which empowered the Income-tax Officer to impose super-tax in a case B where a private limited company distributed less than sixty per cent. of the total income of the company as dividends on the ground that the object of the sectic, m was to prevent avoidance of super-tax by shareholders of a company in which the public were not substantially interested. In Balaji v.\n\nIncome-tax Officer, , , Special Investigation Circle (') this Cort ruled that s. 16(3)(a)(i) c and (ii) of the Income-tax Act, which enabled the Income-tax Officer in computing :he total income of a person to include the share of the income cf his wife and minor sons therein, was constitutionally valid for the reason that it was intended to prevent eva- 5ion of tax by persons putting the properties in the names of their wives or minor children, as the case may be. This Court again in D Navnitial C. Javeri v. K. K. Sen, Appellate Assistant Commissioner of Income-tax, \"D\" Range, Boinbay (\") sustained the validity of s. 2(6A)(e) of the Indian Income-tax Act, 1922, which included in the definition of \"dividend\", inter alia, payment made by the company by way of advance or loan to a shareholder to the extent to which the company possessed accumulated profits on the E groun:l that it was a measure to prevent private controlled companies adopting the device of making advances or giving loans to their shareholders with the object of evading payment of tax.\n\nThe question in the instant case, therefore, is whether the constitutional validity of s. 2(6A)(d) of the Act can be supported F on the ground that it was enacted to prevent evasion of income-tax.\n\nWhile an entry delineating a legislative field must be wiqely and liberally construed, there must be a reasonable nexus between the item taxed and the field so delineated. The said clause deals with the distribution by a company on the reduction of its. 'capital to the extent to which the company possesses accumulated profits.\n\nG Accumulated profits of a company may be utilised in the following 3 ways: (]) for increasing the capital stocks; (2) for distributing the same among the shareholders by way of dividends; and (3) for reducing the capital. Ordinarily a company reduces the capital when there is loss or depreciation of assets; in that event there is no question of distribution of profits to the shareholders but H the shares are only devaluated. But a company may,. on the pretext of reducing its capital, utilise its accumulated profits to pay back to the shareholders the whole or part of the paid up amounts on the shares. A shareholder though in for.m gets back the whole\n\n(1) [1961] 1 R.C.Jl. 4S2.\n\n('2} [I \\JG2] 2 .S.C.R. 98'\\.\n\ne) fl tH~5] I S.C. R. PO fl.\n\nPl'KJAB DISTILLERIES v. c. r. T. (Subba RaJ, J.) 7\n\nA or a part of the capital contributed by him, in effect he gets a share of the accumulated profits, which, if a straightforward course was followed, he should have received as dividend. This is a division of profits under the guise of division of capital; a distribution of profits under the colour of reduction of capital. If this was permitted, there would be evasion of super-tax, the extent of the B evasion depending upon the prevalence of the evil. The Legislature, presumably in the interest of the exchequer, enlarged the .definition of \"dividend\" to catch the said payments within the net of taxation. By doing so, it is really taxing the profits in the hands of the shareholders, though they are receiving the said profits under c the cloak bf capital.\n\nLearned counsel for the appellant contends that under the Companies Act a company can lawfull~ reduce the share capital with the sanction of the Court, that there is .\"no prohibition thereunder against such a reduction being made D by way of distribution of accumulated profits to the shareholders, that the amounts so paid to them would be in law capital receipts and that, therefore, there could not be in law or in fact any evasion of tax on income. Reliance is placed upon ss. 100 to 103 of the Companies Act. This argument mixes up two aspects-the legal and fiscal.\n\nUnder Company Law the question of reducing capital is a domestic one for the decision of the majority of shareholders.\n\nThe Court comes into the picture only to see that the reduction E is fair and equitable and that the interests of the minority and the creditors do not suffer. It may not also be concerned with the motive of the general body in resolving to reduce the capital; but the Income-tax Jaw is concerned with tax evasion. Tax can be evaded by breaking the Jaw, or avoided in terms of the law. When F there is a factual avoidance bf ta)I: in tenns of law, the Legislature steps in to amend the Income-tax law so that it can catch such an income within the net of taxation. There is, therefore, no inconsistency between a receipt being a capital one under the Company law, and by fiction being treated as taxable income under the Income-tax Act.\n\n6 Therefore, as s. 2(6A)(d) of the Act embodies a law to prevent evasion of tax, it falls within the ken of entry 54 of List I of Schedule Seven to Government of India Act, 1935.\n\nThe next question is whether the said dividends were distributed in the year 1953-54, as the appellant contends, or in the 1i accounting year 1954-55, as the respondent argues. The relevant sections of the Act in this context are s. 2(6A)(d) and s. 16(2).\n\nSection 2(6A)(d) has been already extracted. The relevant part of\n\ns. 16(2) reads:\n\n\"For the purposes of inclusion in the total income of an assessee any dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed ................................................... \".\n\n\"Dividend'', ith which we are now concerned, is not that which A we. ordinarily understand by that expression, but dividend by defimt10n. Under s. 2(6AJ(tl) of the Act it is one of the ingredients of the denition that it .shall have been distributed by a company on reduct10n of the capital to the extent to which the company possesses accumulated profits. .Under s. 16(2) of the Act such a dividend shall be deemed to be an income of the previous year in B which it is paid, credited or distributed. Unless such a distribution as is mentioned in cl. (d) of s. 2(6A) of the Act had taken place, it would not be. a dividend. If it was not so distributed, s. 16(2) of the Act wculd not be attracted. To put it in other words, if the accunrnlsted profit1 were distributed, it would satisfy not only the defir, ition of \"dividend\" in cl. (d) but also would fix the yc1r in wh'ch it would be deeme.d to be income.\n\nWhat then is the rnaning of the expression \"d!stributon\"? The_ dict; onary meaning o( the e:-:pressio:1 \"distribution\" is \"to give each a sbne, to give to several pers:ms\". The expression \"distribution\" connotes something actual and not notional. It can be physical;\n\nit can also be constructive.\n\nOne may distribute amounts between D different shareholders either by crediting the amount due to each one of them in their respective accounts or by actually paying to\n\nech 0ne of them the amount due to him.\n\nThis Court had to ccnstrne the scope of the word \"paid\" in s. 16(2) of the Act in J. Da!mia v. Commissioner of l.T., Delhi(').\n\nShah, J., speaking for the Court observed:\n\n\"The expression \"paid\" in s. 16(2), it is true, does not contemplate actual receipt of the dividend by the member.\n\nIn general, dividend may be said to be paid within the meaning of section 16(2) when the company discharges its liability and makes the amount of dividend unconditionally available to the member entitled thereto.\"\n\nF This Court again reaffirmed the said principle in Mrs. P. R.\n\nSaraiya v. Commissioner of Income-tax, Bombay City I, Bombay(')\n\nand held that where dividend was not credited to any S(!parate account of the assessee so that he could, if he wished, draw it, it was not \"credited or paid\" within the meaning of s. 16(2) of the Act.\n\nThe same meaning must be given to the word \"distribution\".\n\nG The only differe:ice between the expression \"paid\" and the expression \"distribution\" is that the latter necessarily involves the idea of division between several persons which is the same as payment to several persons. At this stage the anomaly that is alleged to flow from our B view may conveniently be noticed. It is said that there will be different points of time for ascertaining the extent of the accumulated profits, with the result s. 2(6A)(d). of the Act becomes unworkable in practice or at any rate leads to unnecessary complications.\n\nWe do ~10t see any justificatiqn for this comment.\n\n(') [19<14] 53 I.1'.R. 8'.l, 90.\n\n(1) [1965] I S.C.R. ~07.\n\nPUNJAB DISTILLERIES v. c. I. T. (Subba Rao, J.) 9\n\nA Distribut!on is a culmination of a process. Firstly, there will be a resolut10n by the General Body of a company for reduction of capital by distribution of the accumulated. profits amongst the shareholders; secondly, the company will file an application in the Court. f?r an order onrming the reduction of capital; thirdly, after 1t is confirmed, It will be registered by the Registrar of Joint B tock Copames; fourthly, after the registration the company issues no!ices to the shareholders inviting applications for refund of the share capital; and fifthly, on receiving the applications the company will distribute the said profits either by crediting the proportionate share capital to each of the shareholders in their respect:ve accounts or by paying the said amounts in cash. Out of 0 the said 5 steps, the first 4 are only necessary preliminary steps which entitle the company to distribute the accumulated profits.\n\nCredits or payments are related to the said declaration; that is to say, distribution is from and out of the accumulated profits resolved to be distributed by the company. In this view, the accumulated profits to be distributea are fixed by the resolution and the figure D does not change with the date of payment or credit. Indeed, a similar process is to be followed in the case of declaration of ordinary dividends; firstly, there will be a resolution by the General Body of the company declaring the dividends; secondly, thereafter the amounts payable to each of the shareholders are distributed by appropriate credits or payments. Dividends may be paid or E credited to different shareholders during different accounting years; and the shareholders may be assessed in respect of the said payments in different years. Even so, the payments are referable only to the declaration of the dividends out of the profits of a particular year.\n\nThis Court, as we have noticed earlier, in the decisions cited supra held that the year of credit or payment to a F shareholder was crucial for the purpose of assessment and not the date of declaration.\n\nLet us see whether this view introduces any complication in the matter of reduction of rebate on super-tax payable by the company. The appellant-Company set up a claim for a rebate El on super-tax under cl. (ii) of the first proviso to paragraph D of Part II of the first schedule to the Finance Act, 1956. The Company based its claim on the contention that he distribution. of dividends on reductibn of capital took place durmg the year endmg November 30, 1954, and not during the year ending November 30,\n\n1955, and, therefore, cl. (i)(b) of the second proviso to paragraph H D of Part II of the first schedule to the Finance Act, 1956, read with Explanation (ii) to paragraph D, which provides for reduction of rebate allowable under cl. (ii) of the first proviso by an amount computed at certain slab rates on the amount of dividends distributed to the shareholders during the previous year, • could not be invoked. To put it in other words, the assessee claimed that as the dividends were not distributed in the accounting year, there could not be any reduction of the rebates under\n\nSUPRE~IE\n\nCOURT\n\nHBPORTS\n\n(1965) 3 8.C.R.\n\ncl. (i)(b) of the said proviso.\n\nIf; as we have held, the distribution A was made during the year ending November 30, 1955, i.e., the accounting year when the amounts were paid, the Revenue would be entitled to reduce the rebate by the amount computed at the prescribed rates on the amount of dividends. Some complication may arise only if we accept the argument that the date of payment fixes the date for ascertaining the quantum of accumulated profits.\n\nBut we have rejected that contention. In this view, the claim of reduction cf rebate on super-tax provided by the first schedule to the Finance Act, 1956, can be worked out without any confusion\n\nor complication. We, therefore, hold that the dividends must be deemed to have been paid or distributed in the year when it was actually, whether physically or constructively, paid to the different c shareholders, that is to say when the amount was credited to the separate accounts of the shareholders or paid to them.\n\nWhat are the facts in the present case? The High Court, on August 6, 1954, sanctioned the reduction of the capital from Rs. 25 lakhs to Rs. 15 lakhs. On November 4, 1954, the Registrar of Companies issued the certificate under s. 61(4) of the Companies Act. On November 5, 1954, the Company issued notices to the shareholders inviting applications for refunds.\n\nIn the notice sent to the shareholders they were informed that the share transfer register of the Company would remain closed from November 16,\n\nto November 30, 1954 (both days inclusive) and refund would be made to those shareholders whose names stood on November 15, E 1954, in the books of the Company.\n\nAfter the applications were received,· the amounts payable to the shareholders were debited in the accounts and refunds were actually granted during the accounting year, i.e., between December 1, 1954, and November 30, 1955. It is clear from the said facts that the amounts were distributed only during the accounting year, when the amounts were F both debited and paid. We, therefore, agree with the High Court that the dividends were distributed to the shareholders during the accounting year, i.e., 1954-55.\n\nIn the result, the appeal fails and is dismissed with costs.\n\nBachawat J. For the reasons given by brother Subba Rao J, we agree that s. 2(6A)(d) of the Indian Income-tax Act, 1922 is not ultra vires the Central Legislature, but we are unable to agree with bis conclusion with regard to the fourth question of law referred for the opinion of the High Court. The fourth question arose because of the claim of the appellant company to a rebate\n\nof super-tax under cl. (ii) of the first proviso to paragraph D of part ll of\"the first schedule to the Finance Act, 1956 and its con- H te!1tion that the distribution of dividends on reduction of capital contemplated by s. 2(6A)(d) of the Indian Income-tax Act, 1922 took plncc during the year ending November 30, 1954, and not during the year ending November 30, 1955, and! consequently there could be no reduction of the rebate under cl. (i)(b) of the second proviso to paragraph D of part II of the first schedule to the Finance Act, 19,56 read with explanation (ii) to paragraph D.\n\n• A.\n\nPUNJAll DISTILi.DRIES v. c. I. T. (Bachawil, J.) J1\n\nNow, cl. (i)(b) of the second proviso to paragraph D of part II of the first schedule to the Finance Act, 1956 provides for reduction of the rebate allowable under cl. (ii) of the preceding proviso by an amount computed at certain slab rates on the amount of . dividends \"in the case of a company referred to in cl. (ii) of the preceding proviso which has distributed to its shareholders during B the previous year dividends in excess of 6 per cent of its paid-up capital not being dividends payable at a fixed rate\", and the explanation (ii) to paragraph D provides that for purpose of paragraph D \"the expression 'dividend' shall be deemed to include any distribution included in the expression 'dividend' as defined in cl. (6A) of section 2 of the Indian Income-tax Act\". Section 2(6A)(d) of C the Indian Income-tax Act, 1922 provides that \"dividend\" \"includes\n\n\"any distribution by a company on the reduction of its capital to the extent to which the company possesses accumulated profits which arose after the end of the previous year ending next before the !st day of April, 1933, whether such accumuiated profits have\n\nbeen capitalised or not.\"\n\nObviously, s. 2(6A)(d) contemplates a distribution on reduction of capital under s\" 55(l)(c) of the Indian Companies Act, 1913, under which subject to confirmation by the Court, a limited company, if so authorised by its articles, may by special resoluh, n\n\nreduce the share capital in any way, and in particular may \"either with or without extinguishing or reducing liability on any of its shares, pay off any paid-up capital which is in excess of the wants of the company\", and may, if and so far as is necessary, alter its memorandum by reducing the amount of its share capital and of its shares accordingly. Section 56 of the Act enables the company to apply to the Court for an order confirming the reduction, and under s. 60 of the Act, the Court may make an order confirmin;!\n\nF the reduction on such terms and conditions as it thinks fit.\n\nUpon compliance with certain formalities, the Registrar of Joint Stock Companies is required under s. 61 of the Act to register the order and a minute approved by the Court, and on such registration, and not before, the resolution for reducing share capital as G confirmed by the order so registered shall take effect. Under s. 62, the minute when registered shall be deemed to be substituted for the corresponding part of the memorandum of the company.\n\nIn the instant case, the issued, subscribed and paid-up capital of the company was Rs. 25 lakhs, consisting of 5 lakhs shares of Rs. 5 each. On December 16, 1953, the company passed a special B resolution for reducing its share capital Jrom Rs\" 25 lakhs to Rs. 15 lakhs and for payment of Rs. 2 per share to the existing share\"holders under s. 55(1)(c) of the Indian Companies Act, 1913\" On May I 0, 1954, the company applied to the Cour.t for an order confirming the reduction.\n\nOn August 6, 1954, the High Court made an order confirming the reduction. On November 4, 1954, tre or'ler and the minute approved by the Court were duly registerd with the Registrar, and on the same date, the Registrar\n\nSUPREME\n\nCOUR1'\n\nREPORTS [1965] 3 s.c.n.\n\nissued a certificate of registration.\n\nOn November 5, 1954, the A notice of registration was duly published. On the same day, the company issued a circular notice to its sharehold.ers stating that the refund of Rs. 2 per share will be made on receiving confirmation oi the registration and rnquesting the shareholders to send their share certificates to the company at an early date for necessary endorsement and refund of share capital and stating that the refund B would be made to the shareholders, whose names stood on November 15, 1954 in the books of the company, the share transfer register would remain closed from November 16 to November 30, 1954, and the refunds would be made to the shareholders whose names stood on November 15, 1954 in the books of the company. The balance sheet for the year ending November 30, 1954 did not show C the reduction, and the capital of the company in this balance sheet was shown to be Rs. 25 lakhs. The necessary book entries and the payments of dividends to the shareholders were not made during the year ending November 30, 1954. The book entries with regard to the reduction and refund were made, and the refunds were given to the shareholders during the year ending November n 30, 1955 and the reduction was shown in the balance sheet for the year ending November 30, 1955.\n\nThe point in issue is when does the distribution contemplated by s. 2(6AHdi of the Income-tax Act, 1922 take place? Section 2(6A)(d) speaks of dividend in the shape of any distribution by a company amongst its shareholders on reduction on its capital to E the extent of accumulated profits possessed by it.\n\nWe reject the contention that this distribution takes place when the dividend is paid or credited to the shareholders. The distribution contemplated s. 2(6A)(d) is a distribution by a company \"on the reduction of its capital\". The word \"on\" has no fixed meaning, but in the context .of the sub-section, it must be given. the meaning \"at the F time of\", as \"on entering\", \"on the !st of the month\". The distribution contemplated by the sub-section -is therefore, distribution at the time of the reduction of its capital, that is to say, when the resolution for reduction of its capital under s. 55(!)(c) of the Indian Companies Act, 1913 takes effect. As soon as the resolution for reduction of capital and consequential refund of the surplus capi- G ta! to the shareholders takes effect, the capital stands reduced, the surplus ceases to be capital and stands allotted to the shareholders, each shareholder obtains a vested right to the refund of his share of the surplus, and a liability arises on the part of the company to make the refund.\n\nThis liability arises as soon as the reduction of capital takes effect, and it matters not that the company has not K made the necessary book entries showing the reduction of capital and the transfer of the surplus to the account of the shareholders.\n\nThe word \"distribution\" has several dictionary meanings. In the context of s. 2(6A)(d), it means allotment or apportionment of the suru\\us amongst the shareholders; this allotment takes place and each shareholder gets a vested right to his portion of the surplus as soon as the capital stands reduced.\n\nPUNJAB DISTILLERIES v. c. I. T. (Bachawat, J.) 13\n\nA A close scrutiny of s. 2(6A)(d) reveals that (a) the distribution takes place on a single date and (b) the expression \"accumulated\n\nprofits\" means profits accumulated up to the date of the distribution. These two basic ideas which are implicit in s. 2(6A)(d) are forcibly brought out in the explanation to the corresponding s. 2(22) of the Income-tax Act, 1961. We thus find firstly that the B entire distribution of the surplus amongst the shareholders takes place on a single date.\n\nNow if the distribution is to have a certain date, that date can only be the date when the reduction of capital becomes effective. The payments to the shareholders either actual or notional by credit entries in the books of account are made subsequently. The payments need not be made on one C date; they may be and often are made on several dates. The successive payments cannot be the distribution contemplated by s. 2(6A)(d). We find secondly that the accumulated profits are to be ascertained on the date of the distribution. But we find independently for reasons mentioned hereafter that the accumulated profits must be ascertained on the date of the reduction of capital.\n\nD Thus the two events, namely, the distribution and the reduction of capital must . synchronise, and the accumulated profits must also be ascertained at the same point of time. The synchronisation is also obvious on a plain reading of the abridged text \"any distribution on the reduction of c<.pital to the extent of accumulated profits\".\n\nE The artificial dividend under s. 2(6A)(d) must be fixed by reference to the accumulated profits on the date of the reduction of capital and not by reference to the accumulated profits on the successive dates of the payments. If the amount of the dividend were to be fixed by reference to the accumulated profits on the several dates of the payments, the result might well be that some F payments would be dividends to their full extent, some would be dividends to a limited extent and some would 1\\0t\n\nbe dividends at all.\n\nTake a case where the accounting year of the company ends on November 30, a resolution for the reduction of its capital to the extent of Rs.\n\nJO lakhs and for refund of Rs. 2 for each share of Rs. 5 takes effect on June 30, G 1954 and payments of rupees one, six and three lakhs are made respectively on October 30, 1954, October 30, 1955 and October\n\n30, 1956; and assume that the extent of the accumulated profits is rupees ten lakhs on June 30, 1954 and on October 30, 1954, rupees two Jakhs on October 30, 1955 and rupees two Jakhs OJI October 30, 1956. If the amount of the dividend were.to be fixed B by reference to the accumulated profits on the dates of the -payments, the result would be that the payment of rupees one Jakh would be dividend to the full extent, the payment of rupees six lakhs would be dividend to the extent of one third and the payment of rupees three Jakhs would not be dividend at all. It is reasonable to think that the legislature did not contemplate such a result.\n\nThe character of the distribution is determined by the extent of the accumulated profits on the date when the reduction\n\nL/B(D)2SCI-3\n\nof capital becomes effective and is not altered. by any subsequent\n\n.A. increase or decrease of the accumulated profits, and all subsequent payment of the capital so distributed share alike the original character of the distribution.\n\nIt is argued that in the case of a normal dividend, a comparable distribution \"takes place, a declaration of dividend out of the profits of a particular year is made, and is followed by payment of B the dividend, and decided cases under s. 16(2) show that the distribution takes place on payment and not on ..the declaration of a dividend. We think this comparison of the normal dividend with the artificial dividend in s. 2(6A)(d) in the shape of distribution to the extent of the accumulated profits is misleading, and the assumptions on which this comparison is made are not correct. 0 The declaration of a normal dividend may be made out of accumulated profits, and need not necessarily be made out of the profits of any particular year. Section 2(6A)(d) does not contain any definition of a normal dividend. In the case of a normal dividend, the question of ascertaining the accumulated profits to the extent of which the distribution amounts to dividend does not D arise. This problem would have arisen, had s. 2(6A) defined normal dividend as \"any distribution by a company on the declaration of dividend to the extent to which the company possesses accumulated profits\". On such a definition, the only possible interpretation would have been thatthe accumulated profits are ascertained and the distribution takes place on the date of the declaration of E the dividend.\n\nThe argument based upon the decided cases under s. 16(2) is misconceived. . Section 16(2) dealt with the question when the dividend shall be deemed to be the income of the shareholders.\n\nBy s. 16(2) the dividend was deemed to be the income of the F shareholders when it was paid, credited or distributed. An artificial dividend under s. 2(6A)(d) is either distributed or paid,· whereas the normal dividend is either paid or credited, and in the case of /. Da/mia v.. Commissioner of Income-tax(') and Padmavati R. Suraiya v. Commissioner of Income-tax(') it was field that the normal dividend is neither paid nor credited by reason of the fact G that the dividend is declared. In this case, we are not concerned with the problem of construction of s. 16(2) or the interpretation of the word \"paid\" or \"credited\". The word \"distributed\" is not synonymous with the word ''paid\" or \"credited\". The three words are used in the Act in different senses. Moreover, the policy of the legislature on the question of the taxability of the dividend in :e: the hands of the shareholders has varied from time to timi. Subsection (2) of s. 16 was repealeq and in \"its place, sub-s. ffA) of s. 12 was introduced by the Finance Act, 1959 with effect from April I, 1960, and the corresponding provision is to be found in s. 8 of the Income-tax Act, 1961. Under s. 12(1A) of the Income- . tax Act, 1922 and s. 8 of the Income-tax Act the declaration of\n\n(') (1964] 53 I.T.R. 83, 90.\n\n\nPUNJAB DISTILLERIES V. C. I. T. (Bachawat, J.) 15\n\nA dividend is crucial even for purposes of assessment of the shareholders. The legislature thus recognises now that the distribution of the normal dividend takes place on the declaration of the dividend.\n\nIn the instant case, the resolution for the reduction of the B capital of the company and the consequential refund of the surplus capital to its shareholders took effect on November 4, 1954. Consequently, 'the distribution of the dividend as defined by s. 2(6A)(d) took place on November 4, 1954, i.e. during the previous year corresponding to the assessment year 1955-56. It is true that during the accounting year ending November 30, 1954, the come pany did not pay any dividends, nor make any book entries with regard to reduction of capital or with regard to refund or payment of surplus capital. But the company incurred on November 4, 1954 the legal liability to make the refunds and the distribution must be deemed to have taken place on November 4, 1954, though no book entries were made and no payments were made on that D date. In view of the fact that the distribution took effeCt on November 4, 1954, the company was 'bound to make necessary entries in their books on November 4, 1954 showing the reduction of capital, and was also bound to show the reduction in its balance sheet for the year ending November 30, 1_954.\n\nIrrespective of its method of book-keeping, the company incurred on November 4, E 1954, the legal liability to make the refunds. The method of bookkeeping is not relevant, but, were it so, it is pertinent to remember that the accounts of the company were kept on the mercantile basis. That system of accounting brings into debit an expenditure the amount for which a legal liability has been incurred before it is actually disbursed. See Keshav Mills Ltd. v. Commissioner of F Income-tax, Bombay(').\n\nIn conclusion, we must point out that the revenue authorities should have, but in fact have not fixed the amoupt of the dividend by reference to the accumulated profits on No:vember 4, 1954, when the resolution for reduction of capital became effective, or G by reference to the accumulated profits brought forward on December 1, 1953 at the commencement of the accounting year during which the reduction of capital took effect. Instead, the revenue authorities took into account the accumulated profits on December 1, 1954, that is to say. the date of the commencement of the subsequent accounting year during which the dividends were paid. The H amount of the accumulated profits as on December 1, 1954 waa fixed by the Income-tax Officer at Rs. 8,42.337, and was subsequently reduced by the Tribunal to Rs: 4,?9,244-13-0 .. The reven:ie authorities rightly assumed that the d1stnbut1on and the ascertamment of the accumulated profits to the extent of which the distribution is deemed to be dividend under s. 2(6A)(d) took place\n\nduring the same accounting year, but they erred in holding that the accounting year commencing on December 1, 1954 is the relevant year.\n\nIn our opinion, the High Court was in error in holding that dividends under s. 2(6A)(d) were distributed during the previous year corresponding to the assessment year, 1956-57. We think that the dividends, if any, under s. 2(6A)(d) were distributed in the previous year corresponding to the assessment year 1955-56, and the fourth question should be answered accordingly. The appeal is allowed in part to this extent. In view of the divided success, we direct that the parties will. pay and bear their own costs -in this Court and in the Court below.\n\nORDER BY COURT In accordance with the majority Judgment, the appeal fails and is dismissed with costs.\n\n!, •", "total_entities": 194, "entities": [{"text": "PUNJAB DISTILLING INDUSTRIES LID", "label": "PETITIONER", "start_char": 0, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "PUNJAB DISTILLING INDUSTRIES LID", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, PUNJAB", "label": "RESPONDENT", "start_char": 35, "end_char": 69, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, PUNJAB", "offset_not_found": false}}, {"text": "February 9, 1965", "label": "DATE", "start_char": 71, "end_char": 87, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF INCOME-TAX, PUNJAB\n\nFebruary 9, 1965\n\n[K. SUBBA RAO, F..AGHUBAR DAYAL, J. R. MUDHOLKAR,\n\nR. S. BACHAWAT AND V. RAMASWAMI, JJ.]"}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 90, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "F..AGHUBAR DAYAL, J.", "label": "JUDGE", "start_char": 104, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 125, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "R. MUDHOLKAR", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 140, "end_char": 154, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 159, "end_char": 176, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "s. 2(A)", "label": "PROVISION", "start_char": 221, "end_char": 228, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 399, "end_char": 428, "source": "regex", "metadata": {}}, {"text": "s. 16(2)", "label": "PROVISION", "start_char": 533, "end_char": 541, "source": "regex", "metadata": {"linked_statute_text": "Government of India Act, 1935", "statute": "Government of India Act, 1935"}}, {"text": "Gf the Income-tax Act", "label": "STATUTE", "start_char": 542, "end_char": 563, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 61", "label": "PROVISION", "start_char": 636, "end_char": 641, "source": "regex", "metadata": {"linked_statute_text": "Gf the Income-tax Act", "statute": "Gf the Income-tax Act"}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 654, "end_char": 680, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 61", "label": "PROVISION", "start_char": 950, "end_char": 955, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 975, "end_char": 988, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "November 30, 1955", "label": "DATE", "start_char": 1218, "end_char": 1235, "source": "ner", "metadata": {"in_sentence": "It was refunded by actual payment or by credit entries in the next accounting year which ended on November 30, 1955."}}, {"text": "s. 2(6A)", "label": "PROVISION", "start_char": 1350, "end_char": 1358, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 1370, "end_char": 1397, "source": 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"label": "STATUTE", "start_char": 2171, "end_char": 2200, "source": "regex", "metadata": {}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 2206, "end_char": 2217, "source": "regex", "metadata": {"linked_statute_text": "Government of India Act, 1935", "statute": "Government of India Act, 1935"}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 2233, "end_char": 2253, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 61", "label": "PROVISION", "start_char": 2328, "end_char": 2333, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 2353, "end_char": 2366, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "November 4, 1954", "label": "DATE", "start_char": 2381, "end_char": 2397, "source": "ner", "metadata": {"in_sentence": "2) The certificate of the 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"metadata": {}}, {"text": "[1961] 1 S. 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("}}, {"text": "Part TI of the first schedule to the Finance Act, 1956", "label": "STATUTE", "start_char": 8795, "end_char": 8849, "source": "regex", "metadata": {}}, {"text": "s. 25", "label": "PROVISION", "start_char": 8991, "end_char": 8996, "source": "regex", "metadata": {"linked_statute_text": "Part TI of the first schedule to the Finance Act, 1956", "statute": "Part TI of the first schedule to the Finance Act, 1956"}}, {"text": "Income-tax Appellate Tribunal", "label": "COURT", "start_char": 9168, "end_char": 9197, "source": "ner", "metadata": {"in_sentence": "On further appeal, the Income-tax Appellate Tribunal, for the reasons recorded by it in its order, reduced the figure under the said head by a sum of Rs."}}, {"text": "Novrmber 4.\n\n1954", "label": "DATE", "start_char": 9490, "end_char": 9507, "source": "ner", "metadata": {"in_sentence": "15 lakhs was obtained on Novrmber 4."}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 10679, "end_char": 10690, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 10705, "end_char": 10719, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 2(6A)(d)", "label": "PROVISION", "start_char": 10962, "end_char": 10978, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 10993, "end_char": 11007, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 61", "label": "PROVISION", "start_char": 11365, "end_char": 11375, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 11387, "end_char": 11413, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "N. C. Chatterjee", "label": "LAWYER", "start_char": 11799, "end_char": 11815, "source": "ner", "metadata": {"in_sentence": "Mr. N. C. Chatterjee, learned counsel for the assessee, did not contest the correctness of the answer given by the High Court in regard to the third question and, therefore, nothing further need be said about it.", "canonical_name": "N. C. 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"source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(2)", "label": "PROVISION", "start_char": 21121, "end_char": 21129, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(2)", "label": "PROVISION", "start_char": 21944, "end_char": 21952, "source": "regex", "metadata": {"statute": null}}, {"text": "Shah", "label": "JUDGE", "start_char": 22013, "end_char": 22017, "source": "ner", "metadata": {"in_sentence": "Shah, J., speaking for the Court observed:\n\n\"The expression \"paid\" in s. 16(2), it is true, does not contemplate actual receipt of the dividend by the member."}}, {"text": "s. 16(2)", "label": "PROVISION", "start_char": 22083, "end_char": 22091, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16(2)", "label": "PROVISION", "start_char": 22239, "end_char": 22252, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(2)", "label": "PROVISION", "start_char": 22697, "end_char": 22705, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 23222, "end_char": 23233, "source": "regex", "metadata": {"statute": null}}, {"text": "Part II of the first schedule to the Finance Act, 1956", "label": "STATUTE", "start_char": 25815, "end_char": 25869, "source": "regex", "metadata": {}}, {"text": "November 30,\n\n1955", "label": "DATE", "start_char": 26058, "end_char": 26076, "source": "ner", "metadata": {"in_sentence": "of dividends on reductibn of capital took place durmg the year endmg November 30, 1954, and not during the year ending November 30,\n\n1955, and, therefore, cl. 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books of the Company."}}, {"text": "December 1, 1954", "label": "DATE", "start_char": 28523, "end_char": 28539, "source": "ner", "metadata": {"in_sentence": "After the applications were received,· the amounts payable to the shareholders were debited in the accounts and refunds were actually granted during the accounting year, i.e., between December 1, 1954, and November 30, 1955."}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 28985, "end_char": 28996, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 29004, "end_char": 29031, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 29398, "end_char": 29415, "source": "regex", "metadata": {}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 29515, "end_char": 29526, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 29534, "end_char": 29561, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "II of the first schedule to the Finance Act", "label": "STATUTE", "start_char": 29787, "end_char": 29830, "source": "regex", "metadata": {}}, {"text": "II of the first schedule to the Finance Act, 1956", "label": "STATUTE", "start_char": 30002, "end_char": 30051, "source": "regex", "metadata": {}}, {"text": "section 2", "label": "PROVISION", "start_char": 30675, "end_char": 30684, "source": "regex", "metadata": {"linked_statute_text": "II of the first schedule to the Finance Act, 1956", "statute": "II of the first schedule to the Finance Act, 1956"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 30699, "end_char": 30713, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 2(6A)(d)", "label": "PROVISION", "start_char": 30716, "end_char": 30732, "source": "regex", "metadata": {"linked_statute_text": "II of the first schedule to the Finance Act, 1956", "statute": "II of the first schedule to the Finance Act, 1956"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 30742, "end_char": 30769, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 31105, "end_char": 31116, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 31194, "end_char": 31220, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 56", "label": "PROVISION", "start_char": 31706, "end_char": 31716, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "s. 60", "label": "PROVISION", "start_char": 31819, "end_char": 31824, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "s. 61", "label": "PROVISION", "start_char": 32041, "end_char": 32046, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "s. 62", "label": "PROVISION", "start_char": 32267, "end_char": 32272, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 55(1)(c)", "label": "PROVISION", "start_char": 32738, "end_char": 32749, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 32757, "end_char": 32783, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "May I 0, 1954", "label": "DATE", "start_char": 32788, "end_char": 32801, "source": "ner", "metadata": {"in_sentence": "2 per share to the existing share\"holders under s. 55(1)(c) of the Indian Companies Act, 1913\" On May I 0, 1954, the company applied to the Cour.t for an order confirming the reduction."}}, {"text": "November 15, 1954", "label": "DATE", "start_char": 33662, "end_char": 33679, "source": "ner", "metadata": {"in_sentence": "2 per share will be made on receiving confirmation oi the registration and rnquesting the shareholders to send their share certificates to the company at an early date for necessary endorsement and refund of share capital and stating that the refund B would be made to the shareholders, whose names stood on November 15, 1954 in the books of the company, the share transfer register would remain closed from November 16 to November 30, 1954, and the refunds would be made to the shareholders whose names stood on November 15, 1954 in the books of the company."}}, {"text": "November 16 to November 30, 1954", "label": "DATE", "start_char": 33762, "end_char": 33794, "source": "ner", "metadata": {"in_sentence": "2 per share will be made on receiving confirmation oi the registration and rnquesting the shareholders to send their share certificates to the company at an early date for necessary endorsement and refund of share capital and stating that the refund B would be made to the shareholders, whose names stood on November 15, 1954 in the books of the company, the share transfer register would remain closed from November 16 to November 30, 1954, and the refunds would be made to the shareholders whose names stood on November 15, 1954 in the books of the company."}}, {"text": "November n 30, 1955", "label": "DATE", "start_char": 34354, "end_char": 34373, "source": "ner", "metadata": {"in_sentence": "The book entries with regard to the reduction and refund were made, and the refunds were given to the shareholders during the year ending November n 30, 1955 and the reduction was shown in the balance sheet for the year ending November 30, 1955."}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 34546, "end_char": 34560, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 34920, "end_char": 34931, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 55(!)(c)", "label": "PROVISION", "start_char": 35362, "end_char": 35373, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 35381, "end_char": 35407, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 36142, "end_char": 36153, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 36443, "end_char": 36454, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 36670, "end_char": 36681, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(22)", "label": "PROVISION", "start_char": 36747, "end_char": 36755, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1961", "label": "STATUTE", "start_char": 36763, "end_char": 36783, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 37324, "end_char": 37335, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1961", "statute": "the Income-tax Act, 1961"}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 37959, "end_char": 37970, "source": "regex", "metadata": {"statute": null}}, {"text": "June 30, G 1954", "label": "DATE", "start_char": 38668, "end_char": 38683, "source": "ner", "metadata": {"in_sentence": "5 takes effect on June 30, G 1954 and payments of rupees one, six and three lakhs are made respectively on October 30, 1954, October 30, 1955 and October\n\n30, 1956; and assume that the extent of the accumulated profits is rupees ten lakhs on June 30, 1954 and on October 30, 1954, rupees two Jakhs on October 30, 1955 and rupees two Jakhs OJI October 30, 1956."}}, {"text": "October 30, 1956", "label": "DATE", "start_char": 38993, "end_char": 39009, "source": "ner", "metadata": {"in_sentence": "5 takes effect on June 30, G 1954 and payments of rupees one, six and three lakhs are made respectively on October 30, 1954, October 30, 1955 and October\n\n30, 1956; and assume that the extent of the accumulated profits is rupees ten lakhs on June 30, 1954 and on October 30, 1954, rupees two Jakhs on October 30, 1955 and rupees two Jakhs OJI October 30, 1956."}}, {"text": "s. 16(2)", "label": "PROVISION", "start_char": 40060, "end_char": 40068, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 40243, "end_char": 40254, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(6A)(d)", "label": "PROVISION", "start_char": 40565, "end_char": 40581, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(6A)", "label": "PROVISION", "start_char": 40837, "end_char": 40845, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(2)", "label": "PROVISION", "start_char": 41249, "end_char": 41257, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16(2)", "label": "PROVISION", "start_char": 41277, "end_char": 41290, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(2)", "label": "PROVISION", "start_char": 41391, "end_char": 41399, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 41535, "end_char": 41546, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(2)", "label": "PROVISION", "start_char": 41949, "end_char": 41957, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 42324, "end_char": 42329, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 42377, "end_char": 42382, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act, 1959", "label": "STATUTE", "start_char": 42405, "end_char": 42422, "source": "regex", "metadata": {}}, {"text": "s. 8", "label": "PROVISION", "start_char": 42505, "end_char": 42509, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1959", "statute": "the Finance Act, 1959"}}, {"text": "Income-tax Act, 1961", "label": "STATUTE", "start_char": 42517, "end_char": 42537, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 12(1A)", "label": "PROVISION", "start_char": 42545, "end_char": 42554, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1961", "statute": "the Income-tax Act, 1961"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 42590, "end_char": 42594, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1961", "statute": "the Income-tax Act, 1961"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 42602, "end_char": 42616, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 43177, "end_char": 43188, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1961", "statute": "the Income-tax Act, 1961"}}, {"text": "November 30, 1_954.", "label": "DATE", "start_char": 44037, "end_char": 44056, "source": "ner", "metadata": {"in_sentence": "In view of the fact that the distribution took effeCt on November 4, 1954, the company was 'bound to make necessary entries in their books on November 4, 1954 showing the reduction of capital, and was also bound to show the reduction in its balance sheet for the year ending November 30, 1_954."}}, {"text": "November 4, E 1954", "label": "DATE", "start_char": 44126, "end_char": 44144, "source": "ner", "metadata": {"in_sentence": "Irrespective of its method of book-keeping, the company incurred on November 4, E 1954, the legal liability to make the refunds."}}, {"text": "No:vember 4, 1954", "label": "DATE", "start_char": 44731, "end_char": 44748, "source": "ner", "metadata": {"in_sentence": "In conclusion, we must point out that the revenue authorities should have, but in fact have not fixed the amoupt of the dividend by reference to the accumulated profits on No:vember 4, 1954, when the resolution for reduction of capital became effective, or G by reference to the accumulated profits brought forward on December 1, 1953 at the commencement of the accounting year during which the reduction of capital took effect."}}, {"text": "December 1, 1953", "label": "DATE", "start_char": 44877, "end_char": 44893, "source": "ner", "metadata": {"in_sentence": "In conclusion, we must point out that the revenue authorities should have, but in fact have not fixed the amoupt of the dividend by reference to the accumulated profits on No:vember 4, 1954, when the resolution for reduction of capital became effective, or G by reference to the accumulated profits brought forward on December 1, 1953 at the commencement of the accounting year during which the reduction of capital took effect."}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 45567, "end_char": 45578, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 45805, "end_char": 45816, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(6A)(d)", "label": "PROVISION", "start_char": 45949, "end_char": 45960, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_201_209_EN", "year": 1965, "text": "NAWAB USMANALI KHAN\n\nSAGARMAL\n\nF abruary 26, 1965\n\n[K. SUBBA RAO, J. C. SHAH AND R. S. BACHAWAT, JJ.]\n\nCode of Civil Procedure (Act 5 of 1908), ss. 60(1)(g), 86(1) and 87B-Proceedings under ss. 14 and 17 of the Arbitration Act (10 of 1940)-If \"suit\"-Payments to Ruler of former Indian State on accoUJll of privy purse-If liable. to attachment.\n\nThe appellant. who was a Ruler of a former Indian State, had money dealings with the respondent. They referred their disputes to an arbitrator who made his award directing the appellant to pay. a certain sum of money, in instalments. The award also stated that the existing documents relating to debts on lands would remain as before and would remain as securities till the payment of debts.\n\nThe arbitrator filed the award into court and the court, after notice to the parties. passed a decree in terms of a compromise modifying the award. The respondent started execution proceedings and the court passed a prohibitory order under O.XXI, r. 46 of the Civil Procedure Code, 1908. in respect of the sums payable to the appellant by the Central Government on account of the privy purse; but on the application of the appellant, that order was vacated.\n\nThe appellant and respondent filed appeals in the High Court, against the various orders, and the High Court decided all the appeals against the appellant.\n\nIn the appeal to the Supreme Court, it was contended that, (i) M the award affected immovable property of the value of more than Rs. 100, and was not registered, a decree could not be passed in terms of the award, (ii) the proceedings under the Indian Arbitration Act, 1940, were incompetent in the absence of the consent of the Central Government under ss. 86(1) and 87B of the Code, and therefore the decree passed in those proceedings was without jurisdiction and void and (iii) the amount receivable by the appellant as his privy purse was a political pension within the meaning of s. 60(1)(g) of the Code, and not liable to attachment or sale in execution of a decree.\n\nHELD: (i) The award did not create or of its own force declare any interest in any immovable property and since it did not come within the purview of s. 17 of the Registration Act, 1908, was not required to be registered. r (204 Hl\n\n(ii) A proceeding under s. 14 read withs. 17 of the Arbitration Act, for the passing of a judgment and decree on an award, does not commence with a plaint or a petition in the nature of a plaint, and cannot be regarded as a suit and the parties to whom the notice of the filing of the award is given under s. 14(2) cannot be regarded as\n\n\"sued in any Court otherwise competent to try the suit\" within the meaning of s. 86(1) read with s. 87B of the Code. Neither are those provisions of the Code attracted by reason of s. 41 (a) of the Arbitration Act or s. 141 of the Code. It follows that the G:ourt was competent to entertain the proceedings under s. 14 of the Arbitration Act and pass a decree in those proceedings though no consent to the institution of the proceedings had been given by the Central Government. [205 G-H; 206 B-D]\n\nSUl'BEME COURT REPORTS [196~] 3 s.c .••\n\n(iii) The amounts of the privy purse of the appellant were not .I. liable to attachment or sale in execution of the respondent's decree. f209 C-Dl The periodical payment of money by the Government to a Ruler of a former Indian State as privy purse on political considerations and under political sanctions and not under a right legally enforceable in any municipal court is strictly a political pension wi_thin the • meaning of s. 60(1) (g) of the Code. The privy purse satisfies all the essential characteristics of a political pension, and as such is protected from execution under s. 60(1) (g). f209 A-Cl CML APPELLNI'E JURISDICTION : Civil Appeals Nos. 568 and 767 of 1963.\n\nAppeals from the judgment and order dated October IO, 1960. of the Madhya Pradesh High Court, Indore Bench, Indore, in C Civil Miscellaneous Appeals Nos. 33 of 1958 and 81 and 82 of 1957.\n\nG. S. Pathak, B. Dutta, J. B. Dadachanii, 0. C. Mathur and Ravinder Narain, for the appellant.\n\nD B. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. The appellant is the Ruler of the former Indian State of Jaora. He had money dealings with the respondent. By B an agreement dated February 23, 1957, the appellant and the respondent agreed to refer their disputes regarding those dealings to the arbitration of Lala Durgashankar. On the. same date, the arbitrator made an award. By this award, the arbitrator found that a sum of Rs. 1,60,000 was due to the respondent from the appellant, and directed that this sum would be payable in eight quarterr ly instalments, the first four instalments to be of Rs. 21,000 each and the next four instalments to be of R~. 19,000 each, the amount of interest would be payable in another quarterly instalment, the respondent would have a first charge on the sums receivable by the appellant from the Government of India as privy purse, and would be entitled to realise those sums under a letter of authority fl issued by the appellant, and if the Government would raise any objection to the payment, the respondent would have the right to realise the dues from the personal property of the appellant. Some\n\nof the items of the loans in respect of which the award was made were secured on lands and ornaments. The award therefore proed: B \"The documents relating to debts obtained on lands and ornaments shall remain as before till the payment of the debts and they shall also remain as securities till then, and the Nawab Sahab shall have no right to transfer the land.\"\n\nThe award was signed by the arbitrator and also by the appel fa nt and the respondent.\n\nUSMANALI KHAN t>. SAGARMAL (Barhawat,\" J.) io3\n\nA On the same day, the arbitrator filed the award in the Court of the District Judge, Ratlam. Notice Clf filing of the award under s. 14 of the Indian Arbitration Act, 1940 was duly, served on the parties. On March 9, 1957, an agent of the appellant filed a written submission accepting the award and requesting the Court to ass a decree in terms of the award. But on the same day, an apphca- B tion was made by another agent of the appellant intimating that steps would be taken for setting aside the award. The Court fixed March 23, 1957 for filing the objectian. The time was subsequently extended up to April 2, 1957. On that day. an application was liled on behalf of the appellant praying for setting aside the award. But on April 5, 1957, an application was filed on behalf of the appellant withdrawing the objections and asking the Court to pass a decree in terms of the award, subject to the modification that the a\n\namount of the award would be payable in quarterly instalments of Rs. 13,000 each. This application was signed by the respondent in token of his consent to the modification of the amount of the instalments. On April 30, 1957, the arbitrator filed the relevant D papers. On the same day, an agent of the appellant filed an application praying for setting aside the compromise and the award.\n\nThe case was fixed for hearing an June 19. 1957. On that date. the Court received bv registered post an application from the appellant withdrawing the objections and praying for an order in accordance with the compromise application filed on April 5, 1957. In the circumstances, on June 19, 1957, the Court recorded the compromise and passed a decree in terms Clf the award as modified by fhe compromise. The apoellant filed in the Madhya Pradesh High Court A npeal No. 81 of 1957 under s. 3\"9 of the T ndian Arbitration Act. 1940 against the order dated June 19, 1957 treating it as an\n\n1 order refusing to set aside the award. The appellant also filed Appeal No. 82 of 1957 under 0.43(1)(m) of the Code of Civil Procedure against the order dated June 19. 1957 recording the compromise.\n\nIn the meantime, the respondent started Execution Case No. 5 1Jf 1957, and on September 9, 1957 obtained an ex parte order for transfer of the decree to the Court of the District Judge, Delhi. On G November 1, 1957. the Central Government gave a certificate under s 86{3) read with s. 87B of the Code of Civil Procedure, 1908 consenting to the execution of the decree against the properties of the appellant. On November 8, 1957, the District Judge. Delhi passed a prohibitory order under 0. 21, r. 46 of the Code of Civil Procedure in respect of sums payable to the appellant on ::iccount H of the privy purse. By letter dated December 26, 1957, the Central Government informed the appellant of the prohibitory order. On January 8, 1958, the appellant applied to the Court of the District Judge, Ratlam praying for vacating the order of transfer f'f the decree and for cancellation of the certificste issued under 0. 21. r. 6(b) of the Code of Civil Procedure. By order dated March 15, 1958, the Court recalled the decree and cancelled the certificate !IS prayed for, on the ground that the amount receivable by the appellam on account of his privy purse was not attachable. The respon- A dent preferred Appeal No. 33 of 1958 before the High Court against t.his order. By another order dated January 7, 1959, the District Judge, Ratlam dismissed certain objections of the appellant filed in Execution Case No. 2 of 1958. We are informed that the appellant filed before the High Court Appeal No. 13 of 1959 from this order.\n\nAppeals Nos. 81 and 82 of 1957, 33 of 1958 and 13 of 1959, were heard and disposed of by the High Court by a common judgment on October IO, 1960. The High Court dismissed Appeals Nos.\n\nSI and 82 of 1957 and 13 :if 1959 preferred by the appellant and allowed Appeal No. 33 of 1958 preferred by the respondent. The c appellant has referred to this Court Civil Appeal No. 568 of 1963 against the order of the- High Court passed in Appeal No. 33 of\n\n1958. He has also preferred Civil Appeal No. 767 of 1963 from the order of the High Court passed in Appeals Nos. 81 and 82 of\n\n1957. Civil Appeals Nos. 568 and 767 of 1963 were heard together, and are being disposed of by this common judgment.\n\nOn behalf of the appellant, Mr. Pathak raised three contentions only. He argued that: (!) the award affected immovable property of the value of more than Rs. 100, and as it was not registered, nil\n\ndecree could be passed in terms of the award; (2) the proceedings under s. 14 of the Indian Arbitration Act, 1940 were incompetent in E the absence of the consent of the Central Government under s. 86(1) read with s. 87, B, Code of Civil Procedure, and the decree passed in those proceedings is without jurisdiction and null and void: and\n\n(3) the amount receivable by the appellant from the Central Government as his privy purse is a political pension within the meaning of s. 60(l)(g), Code of Civil Procedure, and is not liable to at- F tachment or sale in execution of the decree. These contentions are disputed by Mr. Iyengar on behalf of the respondent. The first two contentions of Mr. Pathak arise in Civil . Appeal No. 767 of 1963 and the third contention arises in Civil Appeal No. 568 of 1963.\n\nThe first contention raised by Mr. Pathak must be rejected.\n\nThe award stated that the existing documents relating. to debts G obtained on lands would remain as before, and they would remain as securities \"till payment of the debts and the appellant would have no right to transfer the land. This portion of the award stated an existing fact. It did not create, or of its own force declare any interest in any immovable property .• Consequently, the document did not H come within the purview of s. 17 of the Indian Registration . Act,\n\n1908, and was not required to be registered.\n\nThe second contention of Mr. Pathak raises questions of construction of ss. 86 and 87B of the Code of Civil Procedure. By reason of s. 86(1) read with s. 87B, no Ruler of any former Indian\n\nState \"may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government.\" Section . .\n\nUSMANALI KHAN ~. SAGARMAL (Bwhaidaf., J.) 205\n\nA 86(2) provides that the requisite consent may be give~ with rspect to a specified suit or with respect to several specified smts or with respect to all suits of any specified cass or lasses, Section 86 .plainly deals with a special class of smts, and this conclusion is reinforced by the heading of Part IV, \"Suit in Particular Cases'', in which ss. 86 and 87B appear. Order 4, rule 1, B Code of Civil Procedure provides that every suit shall be instituted by presenting a plaint to the Court or such other officer as it appoints in this behalf. In the context of s. 176 of the Government of India Act, 1935, Mahajan and Mukherjea,\n\nJJ, observed that the expressio_n \"sue\" means the \"enforcement of a claim or civil right by means of legal proceedings\", see Province of 0 Bombay v. K. S. Advani and others('). But in the context of the Indian Limitation Act, 1908, Lord Russell of Killowen observed in Hansraj Gupta v. Official Liquidator, Dehra Dun- Mussorrie ElectHc Tramway Co.('):\n\n\"The word 'suit' ordinarily means, and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint.\" And construing s. 86 of.the Code of Civil Procedure, Shah, J. speaking on behalf of this Court observed in Bhagwat Singh v. State of Rajasthan('):\n\n\"The appellant is recognised under Art. 366(22) of the Constitution as a Ruler of an Indian State, but s. 86 in terms protects a Ruler from being 'sued' and not against the institution of any other proceeding which is not in the nature of a suit. A proceeding which does not commence with a plaint or petition in the nature of plaint, or where the claim is not in respect of dispute ordinarily triable in a Civil Court, would prima facie not be regarded as falling within s. 86, Code of Civil Procedure.\" Now, a proceeding under s. 14 read with s. 17 of the Indian Arbitration Act, 1940 for the passing of a judgment ancf decree on an award does not commence with a plaint or a petition in the G nature of a plaint, and cannot be regarded as a suit and the parties to whom the notice of the filing of the award is given under s. J 4(2) cannot be r.egardd as \"sued in any Court otherwise competent to try the suir:. within the meaning of s. 86(1) read with s. 87B, Code of Civil Procedure. Accmdingly, the institution of this proceeding against the Ruler of a former Indian State is not barred by • s. 86(1) read with s. 87B. Section 141, Code of Civil Procedure does not attract the provisions of s. 86(1) read with s. 87B to the proceedings under s. 14 of the Indian Arbitration Act. Section 86(1) read with s. 87B confers upon the Rulers of former Indian States substantive rights of itni') [1950] S.C.R. 621, at pp. 661, 697.\n\n(1) [1932] L.R. 60 I.A. rn, 19.\n\nI') A.LR [1964] S.C. 444 at pp. 445, 446.\n\nmunity from suits. Section 141 makes applicable to. other proceed- A ings only those provisions of. the Code which deal with procedure and not those which deal with substantive rights. Nor does s. 4l(a) of the Indian Arbitration Act, 1940 carry the matter any further.\n\nBy .that section, the provisions of the Code of Civil Procedure, 1908 are made applicable to all proceedings before the Court under the Act. Now, by its own language s. 86(1) applies to suits only, and B s. 141, Code of Civil Procedure does not attract the provisions of s. 86(1) to proceedings other than suits. Accordingly, by the conjoint application of s. 41(a) of the Indian Arbitration Act and ss. 86(1) and 141 of the Code of Civil Procedure, the provisions of s. 86(1) are not attracted to a proceeding under s. 14 of the Indian Arbitration Act, 1940. It follows that the Court was competent to C\n\nentertain tbe proceedings under s. 14 of the Indian Arbitration Act, 1940 and to pass a decree against the appellant in those proceedings, though no consent to the institution of those proceedi11gs had been given by the Central Government. A sovereign foreign State and a Ruler of such State' may enjoy a wider immunity from legal proceedings either than suits under the rules of International D Law recognised by our Courts, but the appellant is not now a Ruler of a sovereign State, and cannot claim immunity from proceedings other than suits. The second contention 'Of Mr. Pathak\n\nmust, therefore, be rejected.\n\nThe third contention of Mr. Pathak raises the question whether E an amount payable to a Ruler of a former Indian State as privy purse is a political pension within the meaning of s. 60(1)(g), Code of Civil Procedure. The word \"pension\" in s. 60(1)(g), Code of Civil Procedure implies periodical payments of money by the Government to the pensioner. See Nawab Bahadur of Murshidabad v.\n\nKarnani Industrial Bank Ltd.(') And in.Bishambhar Nath v. Nawab F lmdad Ali Khan('), Lord Watson observed:\n\n\"A pension which the Government of India has given a guarantee that it will pay, by a treaty obligation contraded with another sovereign power, appears to their Lordships to be, in the strictest sense, a political pension. The G obligation to pay, as well as the actual payment of the pension, must, in such circumstances, be ascribed to reasons of State policy.\"\n\nNow, the historv of the integration and the ultimate absorp. tion of the Indian States and of the guarantee for payment of B periodical sums as privv purse to the Rulers of the fol'll)er Indian\n\nStates are well-known. Formerly Indian States were semi-sovereign vassal States under the suzerainty of the British Crown. With the declaration of Independence, the paramountcy of the British Crown lapsed as from August 15, 1947, and the Rulers of Indian States\n\n(1) (41 [ln'Il LR. 5~ LA. 215. 2!9•r.d22<1. !1) [l8PO] L.R. 17, I.A. 181, 18~.\n\nUSW.NALI KHAN I/, SAGABMAL (Bachawat, J.) i07\n\n.l became politically independent sovereigns. The Indian States parted with their sovereignty in successive stages, firstly on accessio~ to the Dominion. of India, secondly on integration of the States mto sizeable adminiStrative units and on closer accession to the Dominion of India, and finally on adoption of the Constitution of India and extinction of the separate existence of the States and B Unions of States. During the second phase of this political absorption of the States, the Rulers of the Madhya Bharat States including the Ruler of Jaora State entered into a Covenant on April 22, 1948 for the formation of the United State of Gwalior, Indore and Malwa (Madhya Bharat). By Art. II of the Covenant, the Covenanting States agreed to unite and integrate their territories C into one State. Article VI provided that the Ruler of each Covenanting State shall not later than July l, 1948 make over the administration of the State to the Rajpramukh and thereupon all rights, authority and jurisdiction belonging to the Ruler and appertaining or incidental to the Government of the State would vest in the United \\State of Madhya Bharat. Article .XI(!) provided D that \"the Ruler of each Covenanting State shall be entitled to receive annually from the revenues of the United State for his privy purse the amount specified against that Covenanting State in Schedule I.\" In Sch. I. a sum of Rs. 1,75,000 V{as specified against the State of Jaora. Article Xl(2) provided that the amount of the privy purse was intended to cover all the expenses of the Ruler E and his family including expenses of the residence, marriage and other ceremonies and neither be increased nor reduced for any reason whatsoever. Article Xl(3) provided that the Rajpramukh would cause the amount io be paid to the Ruler in four equal instalments at the beginning of each quarter in advance. Article Xl(4) .provided that the amount would be free of all taxes whether 1 imposed by the Government of the United State or by the Government of India. Article XIII of the Covenant secured to the Ruler of each Covena'.lting State all personal privileges, digniaes and titles then enjoyed by them. Article XIV guaranteed the succession, according to law and custom, to the gaddi of each Covenanting G State and to the personal rights, privileges, dignities and titles of the Ruler. The Covenant was signed by all the Rulers of the\n\nCovenating States. At the foot of the Covenant, it was stated that \"The Government of India hereby concur in the above Covenant and guarantee all its provisions.\" In confirmation of this consent and guarantee, the Covenant was signed by a Secretacy to the B Government of India.\n\nOn the . coming into force of the Constitution of India, the territories of Madhya Bharat became an integral part of India.\n\nArticle 291 of the Constitution provided:\n\n\"Where under any covenant or agreement entered into by the Ruler of any Indian State before the commence ment of this Constitution, the payment of any 5Ums, free\n\nof tax, has been guaranteed or assured by the Government of the Dominion of India to any Ruler of such State as privy purse: -\n\n(a) such sums shall be charged on, and paid out of, the Consolidated Fund of India; and\n\n(b) the sums so paid to any Ruler shall be exempt from all taxes on income.\" In view of the guarantee by the Government of the Dominion of India to the Ruler 9f Jaora State in the Covenant for the formation of the United State of Madhya Bharat, the payment of\n\nthe sums specified in the covenant as privy purse to the Ruler became charged on the Consolidated Fund of India, and became C payable to him free from all taxes on .income. Article 362 provides that in the exercise of the legislative and executive powers, due regard shall be had to the guarantee given in any such covenant as is referred to in Art. 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State. Article 363(1) provides, that notwithstanding anything contained in the D Constitution, the Courts wculd have no jurisdiction in any dispute arising, out of any provision in any covenant entered into by any Ruler of an Indian State to which the Government of the Dominion of India was a party, pr in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of the Constitution relating to any such E covenant. Article 366(22) provides that the expression \"Ruler\" in relation to an Indian State means a person by whom the covenant referred to in Art. 299(1) was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time. being is. recognised by the President as the successor of such Ruler.\n\nF Now, the Covenant entered. into by the Rulers of Madhya Bharat States was a treaty entered into by the Rulrs of independent States by which they gave up their sovereignty over their respective territories and vested it in the new United State of Madhya Bharat. The Covenant was an act of State, and any G violation of its terms cannot form the s_ubject of any action in any municipal courts. The guarantee given by the Government of India was in the nature of a treaty obligation contracted with the sovereign Rulers of Indian States and cannot be enforced by action in municipal courts. Its sanction is political and not legal.\n\nOn the coming into force of the Constitution of India, the guarantee H for the payment of periodical sums as privy purse is continued by Art. 291 of the Constitution, but its essential political character is preserved by Art. 363 of the Constitution, and the obligation under this guarantee cannot be enforced in any municipal court.\n\nMoreover, if the President refuses to recognhie the person by whom the covenant was entered into as the Ruler of the State, he would not be entitled to the amount payable as privy purse under Art. 29 l.\n\nUSMA.NALI KHAN v. SAGARMAL {Bachawat, J.) 209\n\nA Now, the periodical payment of money by the Government to a Ruler of a former Indian State as privy purse on political considerations and under political sanctions and not under a right legaliy enforceable in any municipal court is strictly a political pension within the meaning of s. 60(!)(g) of the Code of Civil Procedure. The use of the expression \"privy purse\" instead of B the expression \"pension\" is due to historical reasons. The privy purse satisfies all the essential characteristics of a political pension, and as such, is protected from execution under s. 60(l)(g), Code of Civil Procedure. Moreover, an amount of the privy purse receivable from the Government cannot be said to be a debt or other property over which or the proceeds of 0 which he has disposing power within the main part of s. 600), Code of Civil Procedure. It follows that the third contention of Mr. Pathak must be accepted, and it must be held that the amounts of the privy purse are not liable to attachment or sale in execution of the respondent's decree: The third contention is raised in D Civil Appeal No. 568 of 1963 arising out of Appeal No. 33 of\n\n1958. It follows that Civil Appeal No. 568 of 1963 must be ailowed .. All the contentions raised in Civil Appeal No. 767 of\n\n11i63 arising from Appeals Nos. 81 and 82 of 1957 fail, and accordingly this appeal must be dismissed.\n\nIn the result, Civil Appeal No. 568 of 1963 is allowed, the E order of the High Court in Appeal No. 33 of 1958 is set aside and the order of the District Judge dated March 15, 1958 is restored with costs in this Court only. Civil Appeal No. 767 of 1963 is dismissed with costs.\n\nAppeal 568 of 1963 allowed.\n\nAppeal 767 of 1963 dismissed.\n\nL/B(D)2SCl-2,500 -16-3-66-GIPS", "total_entities": 178, "entities": [{"text": "NAWAB USMANALI KHAN", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "NAWAB USMANALI KHAN", "offset_not_found": false}}, {"text": "SAGARMAL", "label": "RESPONDENT", "start_char": 21, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "SAGARMAL", "offset_not_found": false}}, {"text": "abruary 26, 1965", "label": "DATE", "start_char": 33, "end_char": 49, "source": "ner", "metadata": {"in_sentence": "NAWAB USMANALI KHAN\n\nSAGARMAL\n\nF abruary 26, 1965\n\n[K. SUBBA RAO, J. C. SHAH AND R. S. BACHAWAT, JJ.]"}}, {"text": "K. SUBBA RAO, J.", "label": "JUDGE", "start_char": 52, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. 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BACHAWAT", "offset_not_found": false}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 103, "end_char": 126, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 60(1)(g), 86(1) and 87B", "label": "PROVISION", "start_char": 144, "end_char": 171, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 14 and 17", "label": "PROVISION", "start_char": 190, "end_char": 203, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code, 1908", "label": "STATUTE", "start_char": 998, "end_char": 1024, "source": "regex", "metadata": {}}, {"text": "Central Government", "label": "ORG", "start_char": 1081, "end_char": 1099, "source": "ner", "metadata": {"in_sentence": "in respect of the sums payable to the appellant by the Central Government on account of the privy purse; but on the application of the appellant, that order was vacated."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 1375, "end_char": 1388, "source": "ner", "metadata": {"in_sentence": "In the appeal to the Supreme Court, it was contended that, (i) M the award affected immovable property of the value of more than Rs."}}, {"text": "Indian Arbitration Act, 1940", "label": "STATUTE", "start_char": 1599, "end_char": 1627, "source": "regex", "metadata": {}}, {"text": "ss. 86(1) and 87B", "label": "PROVISION", "start_char": 1708, "end_char": 1725, "source": "regex", "metadata": {"linked_statute_text": "the Indian Arbitration Act, 1940", "statute": "the Indian Arbitration Act, 1940"}}, {"text": "s. 60(1)(g)", "label": "PROVISION", "start_char": 1940, "end_char": 1951, "source": "regex", "metadata": {"linked_statute_text": "the Indian Arbitration Act, 1940", "statute": "the Indian Arbitration Act, 1940"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 2179, "end_char": 2184, "source": "regex", "metadata": {"linked_statute_text": "the Indian Arbitration Act, 1940", "statute": "the Indian Arbitration Act, 1940"}}, {"text": "Registration Act, 1908", "label": "STATUTE", "start_char": 2192, "end_char": 2214, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 14", "label": "PROVISION", "start_char": 2286, "end_char": 2291, "source": "regex", "metadata": {"linked_statute_text": "the Registration Act, 1908", "statute": "the Registration Act, 1908"}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 2568, "end_char": 2576, "source": "regex", "metadata": {"linked_statute_text": "the Registration Act, 1908", "statute": "the Registration Act, 1908"}}, {"text": "s. 86(1)", "label": "PROVISION", "start_char": 2678, "end_char": 2686, "source": "regex", "metadata": {"linked_statute_text": "the Registration Act, 1908", "statute": "the Registration Act, 1908"}}, {"text": "s. 87B", "label": "PROVISION", "start_char": 2697, "end_char": 2703, "source": "regex", "metadata": {"linked_statute_text": "the Registration Act, 1908", "statute": "the Registration Act, 1908"}}, {"text": "s. 41", "label": "PROVISION", "start_char": 2781, "end_char": 2786, "source": "regex", "metadata": {"linked_statute_text": "the Registration Act, 1908", "statute": "the Registration Act, 1908"}}, {"text": "s. 141", "label": "PROVISION", "start_char": 2817, "end_char": 2823, "source": "regex", "metadata": {"linked_statute_text": "the Registration Act, 1908", "statute": "the Registration Act, 1908"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 2913, "end_char": 2918, "source": "regex", "metadata": {"linked_statute_text": "the Registration Act, 1908", "statute": "the Registration Act, 1908"}}, {"text": "Dl The periodical payment of money by the Government to a Rule", "label": "STATUTE", "start_char": 3284, "end_char": 3346, "source": "regex", "metadata": {}}, {"text": "s. 60(1)", "label": "PROVISION", "start_char": 3568, "end_char": 3576, "source": "regex", "metadata": {"linked_statute_text": "Dl The periodical payment of money by the Government to a Rule", "statute": "Dl The periodical payment of money by the Government to a Rule"}}, {"text": "s. 60(1)", "label": "PROVISION", "start_char": 3724, "end_char": 3732, "source": "regex", "metadata": {"linked_statute_text": "Dl The periodical payment of money by the Government to a Rule", "statute": "Dl The periodical payment of money by the Government to a Rule"}}, {"text": "G. S. Pathak", "label": "JUDGE", "start_char": 4008, "end_char": 4020, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak, B. Dutta, J. B. Dadachanii, 0."}}, {"text": "B. Dutta", "label": "LAWYER", "start_char": 4022, "end_char": 4030, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak, B. Dutta, J. B. Dadachanii, 0."}}, {"text": "J. B. Dadachanii", "label": "LAWYER", "start_char": 4032, "end_char": 4048, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak, B. Dutta, J. B. Dadachanii, 0."}}, {"text": ". C. Mathur", "label": "LAWYER", "start_char": 4051, "end_char": 4062, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak, B. Dutta, J. B. Dadachanii, 0."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 4067, "end_char": 4082, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "D B. R. L. Iyengar", "label": "LAWYER", "start_char": 4104, "end_char": 4122, "source": "ner", "metadata": {"in_sentence": "D B. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for the respondent."}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 4124, "end_char": 4135, "source": "ner", "metadata": {"in_sentence": "D B. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for the respondent."}}, {"text": "K. L. Mehta", "label": "LAWYER", "start_char": 4140, "end_char": 4151, "source": "ner", "metadata": {"in_sentence": "D B. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for the respondent."}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 4218, "end_char": 4226, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBachawat, J. The appellant is the Ruler of the former Indian State of Jaora."}}, {"text": "Lala Durgashankar", "label": "OTHER_PERSON", "start_char": 4492, "end_char": 4509, "source": "ner", "metadata": {"in_sentence": "By B an agreement dated February 23, 1957, the appellant and the respondent agreed to refer their disputes regarding those dealings to the arbitration of Lala Durgashankar."}}, {"text": "Government of India", "label": "ORG", "start_char": 5018, "end_char": 5037, "source": "ner", "metadata": {"in_sentence": "21,000 each and the next four instalments to be of R~. 19,000 each, the amount of interest would be payable in another quarterly instalment, the respondent would have a first charge on the sums receivable by the appellant from the Government of India as privy purse, and would be entitled to realise those sums under a letter of authority fl issued by the appellant, and if the Government would raise any objection to the payment, the respondent would have the right to realise the dues from the personal property of the appellant."}}, {"text": "USMANALI KHAN", "label": "JUDGE", "start_char": 5778, "end_char": 5791, "source": "ner", "metadata": {"in_sentence": "USMANALI KHAN t>."}}, {"text": "SAGARMAL (Barhawat", "label": "JUDGE", "start_char": 5796, "end_char": 5814, "source": "ner", "metadata": {"in_sentence": "SAGARMAL (Barhawat,\" J.) io3\n\nA On the same day, the arbitrator filed the award in the Court of the District Judge, Ratlam."}}, {"text": "Court of the District Judge, Ratlam", "label": "COURT", "start_char": 5883, "end_char": 5918, "source": "ner", "metadata": {"in_sentence": "SAGARMAL (Barhawat,\" J.) io3\n\nA On the same day, the arbitrator filed the award in the Court of the District Judge, Ratlam."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 5957, "end_char": 5962, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Arbitration Act, 1940", "label": "STATUTE", "start_char": 5970, "end_char": 5998, "source": "regex", "metadata": {}}, {"text": "March 9, 1957", "label": "DATE", "start_char": 6035, "end_char": 6048, "source": "ner", "metadata": {"in_sentence": "On March 9, 1957, an agent of the appellant filed a written submission accepting the award and requesting the Court to ass a decree in terms of the award."}}, {"text": "March 23, 1957", "label": "DATE", "start_char": 6351, "end_char": 6365, "source": "ner", "metadata": {"in_sentence": "The Court fixed March 23, 1957 for filing the objectian."}}, {"text": "April 2, 1957", "label": "DATE", "start_char": 6433, "end_char": 6446, "source": "ner", "metadata": {"in_sentence": "The time was subsequently extended up to April 2, 1957."}}, {"text": "April 5, 1957", "label": "DATE", "start_char": 6557, "end_char": 6570, "source": "ner", "metadata": {"in_sentence": "But on April 5, 1957, an application was filed on behalf of the appellant withdrawing the objections and asking the Court to pass a decree in terms of the award, subject to the modification that the a\n\namount of the award would be payable in quarterly instalments of Rs."}}, {"text": "April 30, 1957", "label": "DATE", "start_char": 6961, "end_char": 6975, "source": "ner", "metadata": {"in_sentence": "On April 30, 1957, the arbitrator filed the relevant D papers."}}, {"text": "June 19. 1957", "label": "DATE", "start_char": 7176, "end_char": 7189, "source": "ner", "metadata": {"in_sentence": "The case was fixed for hearing an June 19."}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 7574, "end_char": 7599, "source": "ner", "metadata": {"in_sentence": "The apoellant filed in the Madhya Pradesh High Court A npeal No."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 7629, "end_char": 7633, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 7838, "end_char": 7865, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "September 9, 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{"document_id": "1965_3_211_217_EN", "year": 1965, "text": "RANGUBAI KOM SHANKAR JAGTAP\n\nSUNDERABAI BHRATAR SAKHARAM JEDHE AND ORS.\n\nMarch 1, 1965\n\n[K. SUBBA RAO, J. C. SHAH AND R\n\nS. BACHAWAT, JJ.)\n\nLegal representatives of deceased respondent-Brought on record in final decree proceedings-If enures for purposes of appeal previously filed-Appeal-When continuation of suit.\n\nThe respondents filed a suit against the petitioner in 1954 for the possession of certain property and for mesne profits and obtained a decree in their favour. The petitioner's appeal to the High Court was dismissed in April 1959 and a petition for special leave to appeal ta this Court was granted in June, 1959. Thereafter, the 7th respond;, nt died in November 1959. The petitioner filed the present applications in October 1964 for bringing on record the legal representatives of the 7th respondent and for condonation of delay on various grounds.\n\nIt was also contended on behalf of the petitioner that in view of the fact that after the preliminary .decree for mesne profits had been passed, the respondents/plaintiffs brought the heirs and legal representatives of the deceased 7th respondent on record in the final decree proceedings within the time prescribed, and as the legal representatives were brought on record at one stage of the suit, on the basis of the rule laid down by the Privy Council in Bri;\n\nInder Singh v. Kanshi Ram, 44 I.A. 218, no question of abatement would arise in respect of the appeal; that the final decree proceed ings are a stage in the suit and the appeal is another stage in the suit and, therefore, the bringing on record of the legal representatives in one stage of the suit will enuTe for all stages of the suit.\n\nHELD : (i) On the facts of the case there were no sulfficient grounds for condoning the delay in bringing the legal representatives of the 7th respondent on the record.\n\n(ii) The order bringing the legal representatives of the respon• dent on record in the final decree proceedings cannot enure for the! benefit of the appeal filed against the preliminary decree. The appeaD therefore abated so far as the 7th respondent was concerned. [217D)I\n\nG An order bringing the legal representatives of a deceased party: on the record passed at the stage of an interlocutory application in a suit, or passed while an appeal is pending where the suit is subsequently remanded to the trial court, or if passed while an appea] is pending against an interlocutory order in a suit, would enure for the subsequent stages of the suit; in all these cases the order is made at one stage of the suit, be it the suit or in an appeal agains~ H the interlocut?ry oder or final .order in the suit, for heri: the appeal 1s only a contmua!Jon of the smt. But the same legal position cannot be invoked where an order is made in a suit subsequent to the filing of an appeal at an earlier stage. Such an order cannot be projected backwards into the appeal that has already been filed so as to become an order in that appeal. [216F-217D]\n\nBrij Inder Singh v. Kanshi Ram, 44 I.A. 218 distinguished.\n\nShankarnaraina Saralaua v. Laxmi Hengsu, A.LR. 1931 Mad. 277. referred to.\n\nLIB(N)3S.CJ.-i\n\nC1v1L\n\nAPPELLATE JURISDICTION : Civil Miscellaneous Peti- A tion Nos. 2402 of 1964.\n\nApplications for substitution for condonation of delay.\n\nAND Civil Appeal No. 430 of 1963.\n\nAppeal by special leave from the judgment and decree dated B April 8, 1959, of the Bombay High Court in First Appeal No. 6~6 of 1954.\n\nS. G. Patwardhan and A. G. Ratnaparkhi, for' the appel!ant.\n\nNaunit Lal, fer the respondents.\n\nORDER Sobba Rao, J. These are two applicatiom, one for the substitution of the legal representatives of respondent No. 7 in Civil Appeal No. 430 of 1963 on the file of this Court and the other for the condonation of delay in filing the first application.\n\nThe first question is whether there is sufficient ground fon excusing the delay in filing the application for bringing the legal representatives of the 7th respondent on record. The facts arc as follows : Sakharam Maruti Jedhe and others filed Special Suit\n\nNo. IO of 1964 in the Court of the Civil Judge, Senior Division.\n\nPoona, against Rangubai Korn Shanker Jagtap for possession of the plaint-schedule property and for mesne profits and obtained a decree therein. Against the said decree defendant preferred an appeal to the High Court of Bombay. The High Court by its judgment dated April 8. 1959, dismissed the appeal. The defendant filed an application for special leave to prefer an appeal to this Court and the same was granted on June 16, 1959. The appeal was admitted on July 27, 1961. Between these two dates, on November 12, 1959, the 7th respondent, Keshavarao Marutirao Jedhe died. Thereafter. on March 7, 1964, the defendant filed Civil Application No. 11 !8 of 1964 in the High Court of Bombay for bringing on record the legal representatives of the 7th respondent and for necessary certificate to that effect. On August 11, 1964, a Division Bench of the High Court granted the certificate. On February 19, 1964, the defendant filed in this Court Civil Miscellaneous Petition No. 2401 of 1964 for bringing on record the legal representatives of the 7th respondent and on October 8. 1964, filed Civil Miscellaneous Petition No. 2402 of 1964 for condoning the delay of 4 years and 19 days in filing the aforesaid first petition. In the said petition the petitioner gave two reasons for condoning the delay. namely, (i) the petitioner is a poor widow living in Poona with her daughters and there is no male member in the family of the petitioner to look after the proceedings, and (ii) after the preliminary decree in the proceedings for the determination of the mesne profits, the plaintiffs brought the heirs and legal representatives of the deceased 7th respondent on record within the time prescribed and\n\nas the legal representatives were brought on record at one Stage of the suit, no question of abatement would arise in respect of the appeal. The respondents filed a counter-affidavit pointing out that there were no grounds for excusing the inordinate delay, that the appellant had been conducting this long drawn litigation from the year 1946. that she had a son-in-law who was helping her, that the deceased was a prominent man of Poona whose death was published in all the newspapers and that the appellant was living in the same locality and she must have had knowledge of his death soon after it occurred. It was further pleaded that the fact that the legal representatives of the 7th respondent were brought on record in the final decree proceedings could not in law prevent the abatement of the appeal, if they were not brought on record in the appeal in time.\n\nUnder 0.XVI, r. 14, of the Supreme Court Rules, 1950, an application to bring on record the legal representatives of a deceased appellant or respondent shall be made within 90 days of the death of the said appellant or respondent. Under the proviso thereto. in computing the said period the time taken in obtaining a certificate from the High Court shall be excluded. Even if the said time is excluded, there will be a delay of about 3! years in filing the application to bring the legal representatives of the deceased 7th respondent on record. From the counter-affidavit filed by the respondents it is clear that the 7th respondent was a prominent citizen of Poona and the fact of his death was published in all newspapers; and the petitioner resides very near the place where the 7th respondent was living. She has been conducting this litigation from the year 1946 and was in contact with.her Advocates from time to time in connection with the appeal. She has also a son-in-law who i~ helping her in the litigation. She had also the knowledge of the fact that the legal representatives of the 7th respondent were brought on record in the final decree proceedings.\n\nIn the circumstances the fact that she is an illiterate woman cannot possibly be a ground for excusing this inordinate delay in bringing the legal representatives of the 7th respondent on record in the appeal. We, therefore, hold that there is no sufficient ground for excusing the delay in bringing the legal representatives of the 7th respondent on record.\n\nThe next question raised is an interesting one of law. From the aforesaid narration of facts it will be seen that the legal repre- H sentatives of the 7th respondent were brought on record within the prescribed time in the final decree proceedings. The question is whether it would enure for the benefit of the appeal; that is to say whether by reason of that fact there is no abatement of the appeal.\n\nThe relevant provisions of the Supreme Court Rules, 1950, reads thus : We have already given the gist of O.XVI, r. 14 of the said Rules. Rule 14-A thereof reads:\n\nll 14\n\nSUPREME\n\nCO(JRT\n\nREPORTS (196/i] 3 B.G.R .\n\n\"The provisions of Order XXII of the Code relating to abatement and of Article 171 in the First Schedule to the Indian Limitation Act. 1908 (IX of 1908), shall, so far as may be applicable, apply to appeals and proceedings .under rule 12 and rule 13 in the High Court and in the Supreme Court.\" Rule 14-A by reference incorporates the rules of abatement in the Code of Civil Procedure and also Art. 171 in the First Schedule to the Indian Limitation Act in the Supreme Court Rules. Under O.XXII, rr. 3 and 4 of the Code of Civil Procedure, if the plaintiff or the defendant dies and the right to sue does not survive to the surviving plaintiff or against the surviving defendant, as the easel may be, his legal representatives shall be brought on record within the prescribed time; and where within the time limited by law no application is made the suit shall abate so far as the deceased plaintiff is concerned or against the deceased defendant, as the case may be. Under r. 11 thereof. \"in the application of this Order to appeals, so far as may be, the, word \"plaintiff\" shall be held to include the appellant. the word \"defendant\" a respondent, and the word \"suit\" an \"appeal\". The result is that for the purpose of abatement a suit and an appeal are treated as different proceedings and the suit or the appeal, as the case may be, abates if the legal repre\n\nsentatives of the deceased plaintiff or defendant are not brought on record within the time prescribed. Under Art. 171 of the First Schedule to the Limitation Act, an application to set aside an order of abatement shall be made within 60 days from the date of abatement. The result of these provisions is that if an application to bring on record the legal representatives of a respondent is not made within 90 days from the date of death of the said respondent, the appeal abates; but an application to set aside that abatement can be made within 60 days from the date of abatement.\n\nBut, if by reason of the fact that the legal representatives of the deceased 7th respondent were brought c>n record in the fina1 decree proceedings, there was no abatement, this Court no doubt will exercise its discretion liberally in condoning the delay in not formally getting the legal representatives of a deceased part}! recorded in appeal in time.\n\nThe main contention - therefore, is that by reason of the fact that they were brought on record in the final decree proceedings, there was no abi:tement of the appeal.\n\nIt is said that the final decree proceeding is a stage in the suit and the appeal is another stage in the suit and, therefore, the bringing on record of the legal representatives in one stag~ of the suit will enure for all stages of the suit including the appeal. This <:onclusion, the . argument proceeds, flows from the reasoning of the judgment of the Judicial Committee in Brij Inder Singh v.\n\nKanshi Ram('). The relevant facts of that case were these : Pending a suit an application was made for directing a party to produce\n\n(') [1917] L.R. 44 l.A. 218, 228.\n\nRA'!rGUBAI KOM v . . SUNDERABAI (Subba Rao, J.) 215\n\ncertain books and that was ordered by the District Judge. Thereafter an application was made to the Chief Court to revise the order of the District Judge. Pending the revision the plaintiff and the 2nd defendant died. Within the prescribed time their legal repri>- sentatives were brought on record in the revision.\n\nSubsequently that revision was cjismissed as withdrawn. The legal representatives of the plaintiff and the 2nd defendant were not brought on record in the suit within the time prescribed. The question was whether the suit had abated. The Judicial Committee held that the suit did not abate and the following reasons were given for that view:\n\n\"The plaintiff as representative of the original plaintiff, and the defendant's representatives of Joti Lal, had been introduced in the Chief Court. No doubt that was only done in the course of an interlocutory application as to the production of books. But the introduction of a plaintiff or a defendant for one stage of a suit is an introouction for all stages, and the prayer, which seems to have been made ab majorem cautelam, by the plaintiff, in his application to the District Judge Prenter under s. 365, was superfluous and of no effect. Coates, the judgment debtor, was only formally called, and the nonpresence of his representatives would afford no ground for the abatement of the suit.\" This judgment is an authority for the position that if the legal representatives of a deceased plaintiff or defendant are brought on record in an appeal or revision from an order made in the suit. that would enure for al! subsequent stages of the suit. The same principle was sought to be extended in a Madras decision to a cross appeal: see Shankaranaraina Saralaya v, Laxmi Hengsu(').\n\nThere, two appeals were independently filed against the decree in a suit-one was filed by the plaintiff and the other by the defendant. The plaintiff-appellant died and in the appeal filed by him his legal representatives were brought on record in time, whereas it was not so done in the appeal filed by the defendant-respondent.\n\nIt was argued that by reason of the fact that the legal representatives of the plaintiff were brought on record in the appeal filed by him there was no abatement in the appeal filed by the defendant. The Court negatived the contention and when the aforesaid decision of the Privy Council was cited, it was distinguished on the following grounds:\n\n\"Their Lordships have held that the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages. When the subject-matter of the Interlocutory application was pending in the appellate Court it was deemed to be one stage of the suit and therefore there was no need to put in a fresh application at a furtlier stage of the suit when it came on for trial before the first Court. Can it be said in the present case that\n\n(') A.J.R. 1931 J\\!'Ml. 277, 278.\n\nwhat was done in one appeal could enure for the benefit A of another appeal unless the latter appeal can be deemed to be a continuation or a further stage of> the appeal in which the legal representatives were brought on record?\n\nI am constrained to say that it is difficult to extend the principle of the decision of the Privy Council to the facts of this case.\" ' B\n\nThis decision accepts the principle laid down by the Privy Council but distinguishes the case before it on the ground that the interlocutory appeal is not a continuation or a further stage of the appeal in which the legal representatives were brought on record. Many other decisions were cited at the Bar, but they only support the 0 position that in bringing the legal representatives of a deceased party on record in one appeal wilJ not enure for the benefit nf a cross appeal.\n\nLet us now consider the question on principle. A combined reading of Order XXIL rr. 3, 4 and II, of the Code of Civil Procedure shows that the doctrine of abatement applies equally to a suit as well as to an appeal. In the application of the said rr. 3 and 4 to an appeal, instead of \"plaintiff\" and \"defendant\", \"appellant\" and \"respondent\" have to be read in those rules. Prima fade, therefore, if a respondent dies and his legal representatives are not brought on record within the prescribed time, the appeal abates as against the respondent under r.4, read with r.11. of 0.XXII of the Code of Civil Procedure. But there is another principle recognized by the Judicial Committee in the aforesaid decision which softens the rigour of this rule. The said principle is that if the legal representatives are brought on 'record within the prescribed time at one stage of the suit, it will enure for the benefit of all the subsequent stages of the suit. The application of this principle to different situations will help to answer the problem presented in the present case. (!) A filed a suit against B for the recovery of possession and mesne profits. After the issues were framed, B died. At the stage of an interlocutory application for production of documents, the legal representatives of B were brought on record within the time prescribed. The order bringing them on record would enure for the benefit of the entire suit. (2) The suit was decreed and an appeal was filed in the High Court and was pending therein.\n\nThe defendant died and his legal representatives were brought on record.. The suit was subsequently remanded to the trial Court.\n\nThe order bringing the legal representatives on record in the appeal would enure for the further stages of the suit. (3) An appeal was filed against an interlocutory order made in a suit Pending the appeal the defendant died and his legal representatives wero brought on record. The appeal was dismissed. The appeal being\n\na continuation or a stage of the suit, the orde~ bringing the legal representatives on record would enure for the subsequent stages of the suit. This would be so whether in the appeal the trial Court's\n\norder was confirmed, modified or reversed. In the above 3 illustrations one fact is common. namely, the order bringing on record the legal representatives was made at one stage of the suit. be it m the suit or in an appeal against the interlocutory Drder or final order made in the suit, for an appeai is only a continuation of the suit. Whether the appellate order confirms that of the first Court, . modifies or reverses it, it replaces or substitutes the order appealed against. It takes its place in the suit and becomes a part of it. It is as it were the suit was brought to the appellate Court at one stage and the orders made therein were made in the suit itself.\n\nTherefore, that order cnures for the subsequent stages of the suit.\n\nBut the same legal position cannot be invoked in the reverse or converse situation. A suit is not a continuation of an appeal. An order made in a suit subsequent to the filing of an appeal at an\n\nearlier stage will move forward with the subsequent stages of the suit or appeals takeH therefrom; but it cannot be projected backwards into the appeal that has already been filed. It cannot possibly become an .order in the appeal. Therefore, the order bringing the legal representatives of the 7th respondent on record in the final decree proceedings cannot enure for the benefit of the appeal filed against the preliminary decree. We, therefore, hold that the appeal abated so far as the 7th respondent was concerned In the result, the petitions are dismissed.\n\nPetitions dismi.'isel.", "total_entities": 45, "entities": [{"text": "RANGUBAI KOM SHANKAR JAGTAP", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "Rangubai Korn Shanker Jagtap", "offset_not_found": false}}, {"text": "SUNDERABAI BHRATAR SAKHARAM JEDHE AND ORS", "label": "RESPONDENT", "start_char": 29, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "SUNDERABAI BHRATAR SAKHARAM JEDHE AND ORS", "offset_not_found": false}}, {"text": "March 1, 1965", "label": "DATE", "start_char": 73, "end_char": 86, "source": "ner", "metadata": {"in_sentence": "March 1, 1965\n\n[K. SUBBA RAO, J. C. SHAH AND R\n\nS. BACHAWAT, JJ.)"}}, {"text": "K. SUBBA RAO, J.", "label": "JUDGE", "start_char": 89, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 106, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. BACHAWAT, JJ.", "label": "JUDGE", "start_char": 121, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "S. G. Patwardhan", "label": "LAWYER", "start_char": 3446, "end_char": 3462, "source": "ner", "metadata": {"in_sentence": "S. G. Patwardhan and A. G. Ratnaparkhi, for' the appel!ant."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 3467, "end_char": 3484, "source": "ner", "metadata": {"in_sentence": "S. G. Patwardhan and A. G. Ratnaparkhi, for' the appel!ant."}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 3507, "end_char": 3517, "source": "ner", "metadata": {"in_sentence": "Naunit Lal, fer the respondents."}}, {"text": "ORDER Sobba Rao", "label": "JUDGE", "start_char": 3541, "end_char": 3556, "source": "ner", "metadata": {"in_sentence": "ORDER Sobba Rao, J. These are two applicatiom, one for the substitution of the legal representatives of respondent No."}}, {"text": "Sakharam Maruti Jedhe", "label": "PETITIONER", "start_char": 4002, "end_char": 4023, "source": "ner", "metadata": {"in_sentence": "The facts arc as follows : Sakharam Maruti Jedhe and others filed Special Suit\n\nNo."}}, {"text": "Rangubai Korn Shanker Jagtap", "label": "RESPONDENT", "start_char": 4136, "end_char": 4164, "source": "ner", "metadata": {"in_sentence": "Poona, against Rangubai Korn Shanker Jagtap for possession of the plaint-schedule property and for mesne profits and obtained a decree therein.", "canonical_name": "Rangubai Korn Shanker Jagtap"}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 4326, "end_char": 4346, "source": "ner", "metadata": {"in_sentence": "Against the said decree defendant preferred an appeal to the High Court of Bombay."}}, {"text": "April 8. 1959", "label": "DATE", "start_char": 4385, "end_char": 4398, "source": "ner", "metadata": {"in_sentence": "The High Court by its judgment dated April 8."}}, {"text": "June 16, 1959", "label": "DATE", "start_char": 4537, "end_char": 4550, "source": "ner", "metadata": {"in_sentence": "The defendant filed an application for special leave to prefer an appeal to this Court and the same was granted on June 16, 1959."}}, {"text": "July 27, 1961", "label": "DATE", "start_char": 4579, "end_char": 4592, "source": "ner", "metadata": {"in_sentence": "The appeal was admitted on July 27, 1961."}}, {"text": "November 12, 1959", "label": "DATE", "start_char": 4622, "end_char": 4639, "source": "ner", "metadata": {"in_sentence": "Between these two dates, on November 12, 1959, the 7th respondent, Keshavarao Marutirao Jedhe died."}}, {"text": "Keshavarao Marutirao Jedhe", "label": "RESPONDENT", "start_char": 4661, "end_char": 4687, "source": "ner", "metadata": {"in_sentence": "Between these two dates, on November 12, 1959, the 7th respondent, Keshavarao Marutirao Jedhe died."}}, {"text": "March 7, 1964", "label": "DATE", "start_char": 4709, "end_char": 4722, "source": "ner", "metadata": {"in_sentence": "on March 7, 1964, the defendant filed Civil Application No."}}, {"text": "August 11, 1964", "label": "DATE", "start_char": 4928, "end_char": 4943, "source": "ner", "metadata": {"in_sentence": "On August 11, 1964, a Division Bench of the High Court granted the certificate."}}, {"text": "February 19, 1964", "label": "DATE", "start_char": 5008, "end_char": 5025, "source": "ner", "metadata": {"in_sentence": "On February 19, 1964, the defendant filed in this Court Civil Miscellaneous Petition No."}}, {"text": "October 8. 1964", "label": "DATE", "start_char": 5185, "end_char": 5200, "source": "ner", "metadata": {"in_sentence": "2401 of 1964 for bringing on record the legal representatives of the 7th respondent and on October 8."}}, {"text": "Poona", "label": "GPE", "start_char": 5472, "end_char": 5477, "source": "ner", "metadata": {"in_sentence": "namely, (i) the petitioner is a poor widow living in Poona with her daughters and there is no male member in the family of the petitioner to look after the proceedings, and (ii) after the preliminary decree in the proceedings for the determination of the mesne profits, the plaintiffs brought the heirs and legal representatives of the deceased 7th respondent on record within the time prescribed and\n\nas the legal representatives were brought on record at one Stage of the suit, no question of abatement would arise in respect of the appeal."}}, {"text": "Poona", "label": "OTHER_PERSON", "start_char": 6253, "end_char": 6258, "source": "ner", "metadata": {"in_sentence": "that she had a son-in-law who was helping her, that the deceased was a prominent man of Poona whose death was published in all the newspapers and that the appellant was living in the same locality and she must have had knowledge of his death soon after it occurred."}}, {"text": "Supreme Court Rules, 1950", "label": "STATUTE", "start_char": 6716, "end_char": 6741, "source": "regex", "metadata": {}}, {"text": "relevant provisions of the Supreme Court Rules, 1950", "label": "STATUTE", "start_char": 8625, "end_char": 8677, "source": "regex", "metadata": {}}, {"text": "Article 171", "label": "PROVISION", "start_char": 8906, "end_char": 8917, "source": "regex", "metadata": {"linked_statute_text": "The relevant provisions of the Supreme Court Rules, 1950", "statute": "The relevant provisions of the Supreme Court Rules, 1950"}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 8925, "end_char": 8939, "source": "regex", "metadata": {"linked_statute_text": "The relevant provisions of the Supreme Court Rules, 1950", "statute": "The relevant provisions of the Supreme Court Rules, 1950"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 8954, "end_char": 8968, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Supreme Court", "label": "COURT", "start_char": 9114, "end_char": 9127, "source": "ner", "metadata": {"in_sentence": "1908 (IX of 1908), shall, so far as may be applicable, apply to appeals and proceedings .under rule 12 and rule 13 in the High Court and in the Supreme Court.\""}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 9192, "end_char": 9219, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 171", "label": "PROVISION", "start_char": 9229, "end_char": 9237, "source": "regex", "metadata": {"linked_statute_text": "The relevant provisions of the Supreme Court Rules, 1950", "statute": "The relevant provisions of the Supreme Court Rules, 1950"}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 9245, "end_char": 9259, "source": "regex", "metadata": {"linked_statute_text": "The relevant provisions of the Supreme Court Rules, 1950", "statute": "The relevant provisions of the Supreme Court Rules, 1950"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 9274, "end_char": 9288, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 9346, "end_char": 9373, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 171", "label": "PROVISION", "start_char": 10309, "end_char": 10317, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 10325, "end_char": 10339, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 10347, "end_char": 10361, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Joti Lal", "label": "OTHER_PERSON", "start_char": 12686, "end_char": 12694, "source": "ner", "metadata": {"in_sentence": "The Judicial Committee held that the suit did not abate and the following reasons were given for that view:\n\n\"The plaintiff as representative of the original plaintiff, and the defendant's representatives of Joti Lal, had been introduced in the Chief Court."}}, {"text": "Prenter", "label": "JUDGE", "start_char": 13077, "end_char": 13084, "source": "ner", "metadata": {"in_sentence": "But the introduction of a plaintiff or a defendant for one stage of a suit is an introouction for all stages, and the prayer, which seems to have been made ab majorem cautelam, by the plaintiff, in his application to the District Judge Prenter under s. 365, was superfluous and of no effect."}}, {"text": "s. 365", "label": "PROVISION", "start_char": 13091, "end_char": 13097, "source": "regex", "metadata": {"statute": null}}, {"text": "Coates", "label": "OTHER_PERSON", "start_char": 13133, "end_char": 13139, "source": "ner", "metadata": {"in_sentence": "Coates, the judgment debtor, was only formally called, and the nonpresence of his representatives would afford no ground for the abatement of the suit.\""}}, {"text": "Madras", "label": "GPE", "start_char": 13589, "end_char": 13595, "source": "ner", "metadata": {"in_sentence": "The same principle was sought to be extended in a Madras decision to a cross appeal: see Shankaranaraina Saralaya v, Laxmi Hengsu(')."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 15794, "end_char": 15821, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 16280, "end_char": 16307, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1965_3_218_228_EN", "year": 1965, "text": "SHRI BHAGWAN AND ANR.\n\nA v.\n\nRAM CHAND AND ANR.\n\nMarch I, 1965\n\n[P. B. GAJENDRAGADKAR, C.J., RAGHUBAR DAIYAL AND V. RAMA-\n\nSWAMI, JJ.J B U.P. Temporary Control of Rent and Eviction Act, 1947, ss. 3(4) and 7-F-Power of District Magistrate to grant permission to sue a tenant for eviction-Whether revisional power of State Governmeni quasi-judicial and be exercised by observing ru.les of natural justice.\n\nThe appellants applied to the Rent Controller and Eviction Ofllcer under s. 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, for permission to file a suit in ejectment against the predeces.- sors-in-interest of the respondents who were the present tenants of certain premises in Agra. After a series of proceedings before the Officer and the appellate authority, the latter eventually ordered thatl the permission applied for should be granted. The respondent then moved the Commissioner of Agra in revision and the orden granting permission was set aside by him; but upon an application made to it under s. 7-F of the Act, the State Government directed! the Commissioner to revise his order. Accordingly the latter cancelled his previous order and confirmed the order granting permission passed ty the appeilate authority.\n\nThe appellants' ejectment suit, in which one of the issues was whether the permission granted to sue the respcndents was valid, was decreed in favour of the appellants and an appeal against this decree to the First Additional Civil Judge was dismissed.\n\nHowever, on appeal to the High Cour:t, the single Judge, differing from the view expressed in earlier decisions of the High Court that the revisional order which the State Government was authorised to pass under s. 7-F is a purely administrative order, came to the conclusion that the permission g, ranted ·.vas invalid l:ecause the State Government, when exercising its authority under s. 7-F of the .Act was required to decide the matter in a quasi-judiciaV manner and by following principles of natural justice and should\n\nlt.ave given the'respondents an opportunity of being heard. On appeal to this Court: HELD: The revisional proceedings which go before tbe State Government under s. 7-F are. like the proceedings before tbe District Magistrate under s. 3(2) as \\Vell as before the Commi33ioner under s. 3(3), quasi-judicial in character and all these tbree authorities must act according io the principles of natural justice. [226 B, CJ.\n\nThe right conferred on the tenant not to be evicted. except on the specified grounds enumerated in els. (a) to (g) of s. 3(1) is \" statutory right of great significance and it is this statutory right\n\nof which the tenant would be deprived when the landlord obtains H the permission of ihe District Magistrate. Therefore the Act must be taken. to require that in exercising their respective powers to grant the permission, the appropriate authorities have to consider the matter in a quasi-judicial manner and to follow the principles of natural justice before reaching their conclusion. [226H-227B].\n\nThe Associated Cement Compani'es Ltd. v. Bhupendra Cement Works, Surajpur v. P. N. Sharma, (1965] 2 S.C.R. 366 and. Ridge v. Baldwin & Ors. L.R. [1964] A.C. 40, referred to.\n\n--~-----------\n\n\\ ---- .... ''\n\nSRRI RRAGWA>iv. RMl° CHAND (Gaje>\"uir .. :garlk~~.'o; J.) .. 219' . ' : ' - ' ' . ·; __ ,~ ·.~: .. ,::::;:,;·,·: -~: :~:·:.. . , A Narottam Saran v. State of U.P. A.LR.; 1954, All. 232 and l\\Iurlidhar v. Strtte of U.P. A.LR. 1964 All. 148, disapproved.- -~· -· ·\n\n Lannan Purslwttam Paimputkar v, state of Bombay [1964] 1 S.C.R. 200, considered. Obiter : Ccnsiderations of judicial propr'.ety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of \\he High Ccurt, whether of a Division Bench or of a s'.nglc Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, _ but should refer the matter to a Division- Bench or, in a proper case. place the relevant papers before the Chief Justice to enable him\n\n- to constitute a larger Bench to examine the 'question. That is the proper and traditional way to deal with such matters and it is . founded on healthy principles of j'1dicial decorum and propriety.\n\n[228B-D] .\n\nC1Vll APPELLATE JuRISDlCTION : . Civil Appeal No. 764 of .. 1964. • Appeal by special leave from the judgment and decree dated May 9, 1963, of the Allahabad High Court in Second Appeal No. 2272 of 1959. A. v, Viswanatha Sastri, B. R. L. lyrngar, S. K. Mehta, and K. L. Mehta, for the appellants. ·\n\nC. B. Agarwala, S. S. Khanuja and Gcnpat Rai. for the res-\n\n. E pendents. ·\n\nThe Judgment of the Court was deliverd by G:ijendragadkar, C •. J. The short question of law which arises in this appeal by special leave is whether the reviSional orde1\n\npasser.I by the State Goyernment of Uttar Pradesh under s. 7-F of the Uttar Pradsh (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter called the Act), is rendered invalid by reason of the fact that before passing th.- said crc.'er; the State Gov,, rnment did not hear the two respondents; Ram Chand and Kai!ash Chr.nd, . who were affected by it. This question arises in. this. way: The respondents are the present tenants of the premises bearing municipal No. 863., situated at Jumna Kinara Rod. Agra, com1r.only known -as Putaria Mahal. -Their predecessors were let into possession as tenants by the appell3nts, Lala Shri Bhagwan and Shrimati Go pal Devi, on an agreement that they would pay a monthly rent of Rs. 58-4-0 and that the tenancy would commence from the Sudi 1 of each Hindi month and end on Badi 15 of the next month ..\n\nThe two appellants applied to the Rent Controller and Eviction\n\nUt!icer (hereafter called the Officer), under s. 3 of the Act for permission to file a suit in ejectment. against the predecessors-in-· interest of the respondents. The Officer granted permission by his order passed on September I, 1951. The respondents then moved the Additional District Magistrate, who had been authorised by the ' .\n\nDistrict Magistrate to hear appeals against the decision of. the .\n\nOfficer. The appellate authority declined to confirm the pennis\n\nsion , granted to the appellants and remanded the case to the\n\nOfficer for a fresh hearing. On re-hearing the matter, the Officer changed his view and rejected the appellants' application for permission on August 9, 1952. The appellants then moved the appellate authority again and prayed that the original order granting permission to them to sue the respondents should be restored. On\n\nDecember 9, 1952, the appellate authority ordered that permission •hould be granted to the appellants for suing the respondents in ejectment. The respondents then moved the Commissioner of Agra in revision. On February 4, 1953, the revisional authority allowed the revisional application and set aside the appellate order granting permission to the appellants. That took the appellants to the State Government under s. 7-F of the Act. On May, 7, 1953, the State Government directed the Commissioner to revise his order on the ground that it thought that the need of the appellants was genuine.\n\nActing in purs, uance of this direction, the Commissioner passed an order on July 28, J 953, by which he cancelled his previous order and\n\nconfirmed the order passed by the appellate authority, granting oermission to the appellants to sue the respondents in ejectment.\n\nThis order was clearlv the result of the direction issued by the State Government under s. 7-F of the Act. After this order was passed, the appellants sued the respondents in ejectment in the court of the Civil Judge, Agra.\n\nThe claim made by the appellants for ejectment of the respondents was resisted by them on several grounds, and on the contentions raised by the respondents. the trial court framed six issues.\n\nOne of the issues was whether the permission granted to the appeL !ants to sue the respondents was valid. It is with this issue that we are concerned in the present appeal. The trial Judge found in favour of the appellants on this issue and recorded his conclusion in their favour even on the other issues which had been framed by him. ln the result, the trial court passed a decree in favour of the appel !ants on August 31, 1957. The respondents challenged this decree by preferring an appeal in the court of the First Additional Civil Judge, Agra. In their appeal, they disputed the correctness of the h1ndings recorded by the trial court on all the issues, including the issue about the validity of the sanction obtained by the appellants before filing the present suit. The appeal court confirmed all the findings recorded by the. trial Judge, with the result that the respondents' appeal was dismissed, on the 30th May, 1959.\n\nThe respondents then went to the Allahabad High Court by way of second appeal. The learned single Judge of the said High Court, who heard the said appeal, was called upon to consider the question as to whether the permission granted to the appellants was valid. That, in fact, was the only issue which was raised before him. The other issues which had been found in favour of the appellants were not raised before the learned Judge. On the issue as to the validity of the sanction obtained by the appellants, the learned\n\nSHRI llliAGWAN v. RAM CHAND (Gajendragadkar,, C.J.) 221\n\nJudge came to the conclusion that the said sanction was invalid inasmuch as the State Government in exercising its authority under s. 7-F of the Act. had not given an opportunity to the respondents to be heard. He took the view that in exercising its authority under s. 7-F, the State Government was required to decide the matter in\n\nrevision in a quasi-judicial manner and it was absolutely essential that the principles of natural justice should have been followed by the State Government before reaching its decision and an opportunity should have been given by it to the respondent to place their case before it.\n\nIt appears that this question had been considered by Division Benches of the Allahabad High Court in the past and the consensus of judicial opinion appears to have been in favour of the view that the revisional order which the State Government is authorised to pass under s. 7-F, is not a quasi-judicial order but is a purely administrative order, and so, it is not necessary that the State Government should hear the parties before exercising its jurisdiction under the said section. The learned single Judge was persuaded by the respondents to consider whether the said decisions were right and he came to the conclusion that the view taken in the said decisions was not right. The judgment delivered by the learned single Judge shows that he had reached this conclusion on re-examining the question in the light of some decisions of this Court to which his attention was invited. After he had reached this conclusion and had dictated a substantial part of his judgment, his attention was drawn to a decision of this Court in Laxman Purshottam Pimputkar v. State of Bombay and others('), which was then not reported. The learned Judge considered the blue print of the judgment to which his attention was invited and thought that the said judgment confirmed the view he had already taken. about the nature of the proceedings and the character of\n\nthe jurisdiction contemplated by s. 7-F. Having held that the State Government was bound to give an opportunity to the respondents to place their version before it, before it exercised its !luthority under s. 7-F, the learned Judge naturally came to the conclusion that the impugneq order passed by the State Government under s. 7-F was invalid, and that inevitably meant that under s. 3 of the Act, the suit was incompetent. In the result, the second appeal preferred by the respondents was allowed and the appellants' suit ordered to be dismissed. In the circumstances of the case, the learned Judge directed that the parties should bear their own costs throughout. It is against this decision that the appellants have come to this Court by special leave; and so, the only point which falls for our decision is whether the revisional order passed by the\n\nState Government under s. 7-F, without giving an opportunity to the respondents to place their case before it, is rendered invalid.\n\nWhen a legislative enactment confers jurisdiction and power on any authority or body to deal with the rights of citizens, it\n\n(') [1964] l.S.C.R. 200.\n\noften becomes necessary to enquire whether the said authority or body is required to act judicially or quasi.judicially in deciding questions entrusted to it by the statute. It sometimes also becomes necessary to consider whether such an authority or body is a tribunal or not. [t is well-known that even administrative bodies or authorities which are authorised to deal with matters within their jurisdiction in an administrative manner, are required to reach their decisions fairly and objectively; but in reaching thelr decisions, they would be justified in taking into account considerations of policy. Even so, administrative bodies may, in acting fairly and objectively, follow che principles of natural justice; but that does not make the administrative bodies tribunals and does not impose on them an obligation to follow the principles of natural justice.\n\nOn the other hand, authorities or bodies which are given jurisdiction by statutory provisions to deal with tbe rights of citizens, may be required by the relevant statute to act judicially in dealing with matters entrusted to them. An obligation to act judicially may, in some cases, be inferred from the scheme of the relevant statute and its material provisions. In such, a case, it is easy to hold that the authority or body must act in accordance with the principles of natural justice before exercising its jurisdiction and its powers; but it ls not necessary that the obligation to follow the principles of natural justice must be expressly imposed on such an authority or body. If it appears that the authority or body has been given power to determine questions affecting the rights of citizens, the very nature of the power would inevitably impose the limitation that the power should be exercised in conformity with the principles of natural justice. Whether or not such an authority or body is a tribunal, would depend upon the nature of the power conferred on the authority or body, the nature of the rights of citizens, the decision of which falls within the jurisdiction of the said authority or body, and other relevant circumstances. This question has been considered by this Court on several occasions. In the Associated Cement Companies Ltd., Bhupendra Cement Works, Surajpur v.\n\nP. N. Sharma and another('), both aspects of this matter have been elaborately examined, arid it has been held, adopting the vieW\n\nexpre.>sd by the House of Lords-in Ridge v. Baldwin and others(') that the extent of the area where the principles of natural justice have to be followed and judicial approach has to be adopted, must depend primarily on the nature of the jurisdiction and the power conferred on any authority or body by statutory provisions to deal with the questions affecting the rights of citizens. In other words, in that decision this Court has held that the test prescribed by Lord Reid in his judgment in the case of Ridge(') affords valuable assistance in dealing with the vexed question with which we are concerned in the present appeal.\n\nLet us, therefore, examine the scheme of the Act and the\n\n\n(') L.R. [1964] A.C. 40.\n\nSBRI BHAGWAN v. RAM CHAND (Gajendragadkar, C.J.) 223\n\nnature of the power and jurisdiction conferred on the State Gov emment bys. 7-F. The Act was passed in 1947 and it_s main bject obviously was, in the words of the preamle, to contmue durmg '.!- limited period powers to control the lettmg and the rent of residential and non-residential accommodation and to prevent the eviction of tenants therefrom .. The preamble further provides that whereas due to shortage of accommodation in Uttar Pradesh it is expedient to provide for the continuance during a limited perio<l c>f powers to control the letting and the rent of such accommodation and to prevent the eviction of tenants therefrom, the Act was enacted. Indeed, it is a matter of common knowledge that similar Acts have been passed in all the States in India.\n\nSection 3 of the Act provides that \"subject to any order passed under sub-s. (3), no suit shall, without the permission of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds\". Then .follow seven clauses (a) to (g) which set out the grounds on which a landlord can seek to evict his tenant even without the permission of the District Magistrate The scheme of s. 3, therefore, is that in order to protect the tenants from evic. tion, the legislature has provided that the landlords could evict their tenants only if there was proof of the existenpe of one or the other of the seven grounds specified by clauses (a) to (g) in s. 3(1).\n\nHaving made this general provision, s. 3(1) makes an exception and enables the landlord to seek to evict his tenant even though his case may not fall under any of the seven clauses of s. 3(1), provided he has obtained the permission of the District Magistrate, In other words, if the District Magistrate grants permission to the landlord, he can sue to evict the tenant under the general provisions of the Transfer of Property Act, as for instance, s. I 06. ThiS( clearly means that the District Magistrate is empowered to grant exception to the landlord from complying with the requirements of clauses (a) to (g) of s. 3(1) and take the case of the tenancy in question outside the provisions of the said clauses. That is the nature and effc~ of the power conferred on the District Magistrate to grant perm1ss1on to the landlord to sue his tenant in eviction.\n\nSection 3, as it was originally enacted, provided that no suiC shall, . without the permission of the District Magistrate, be filed in any.civil court against a tenant for his eviction from any accom. modat10n except on one or more of the grounds specified by clauses (a) to (f). Gause (g) has been subsequently added.\n\nIn 1952, clauses (2), (3) and (4) were added to s. 3 by the Amending. Act 24 of 1952. It is as a result of th::ce amendments that s. 3(1) now provides that subject to any order passed under sub-s. (3), the permission granted by the District Me:>:; strate would enable the landlord to sue his te11ant in ejectment It is now necessary to read sub-ss. (2), (3) and (4), which are as follows:\n\n\"12) Where any application has been made to the District\n\nMagistrate for pe<mission to sue a tenant for eviction from any accommodation and the District Magistrate grants or refuses to grant th~ Jlermission, the party aggneved by his order may, w1th1n 20 days from the date on which the order is communicated to him, apply to the Commissioner to revise the order.\"\n\n\"(3) The Commissionr hall hear the application made under sub-section (2\\ as far as m3 y be, within six weeks from the date of making it, and he may, if he .is not satisfied as to the correctness, legality or propnety cf the order passed by the District Magistrate or as to the regularity of proceedings held before him, alter or reverse his oder, or make such other order as may be just and proper.\" \"(4) The order of the Commissioner under sub-section (3) shall, subject to any order passed by the State Gov\n\nernmerit under s. 7-F, be final.\" The scheme of these three sub-sections is that the District Magistrate should first consider whether the landlord should be allowed to sue without complying with clauses (al to (g) of s. 3(1).\n\nWhen he decides the question one way or the other, the party aggrieved by the decision has been given a right to apply to the Commissioner to revise the said order within the limitation pres- . cribed by sub-s. (2). That takes the proceedings before the Commis\n\nsioner, and he exercises his revisional jurisdiction and reaches his own decision in the matter. Sub-section (4) provides that the revi sional order passed by the Commissioner shall, subject to the order passed by the State Government under s. 7-F, be final. That takes us to s. 7-F. Section 7-F reads thus:\n\n\"The State Government may call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to in s. 3 or requiring any accommodation to be let or not to be let to any person under s. 7 or directing a person to vacate any accommodation under s. 7-A and may make such order as appears to it necessary for the ends of justice.\" As we have already indicated, the question we have to decide in the present appeal is: what is the nature of the proceedings taken before the State Government under s. 7-F and what is the character of , the jurisdiction and power conferred on the State Government by it; are the proceedings purely administrative, and can the State Government decide the question and exercise its jurisdiction without complying with the principles of natural justice?\n\nIn dealing with this question, we have first to examine the nature of the power conferred on the Disttict Magistrate himself.\n\nThere is no doubt that what the District Magistrate is authorised to do is to permit the landlord to claim eviction of his tenant, though\n\nSHR! BHAGWAN v. RAM CHAND (Gajendrag:dk:ir, C.J.) 225;\n\nhe may not comply with s. 3(1), clauses (a) to (g) and that clearly means that the order which the District Magistrate may pass while granting sanction to the Jtmdlord has the effect of taking away from the tenants the statutory protection given to them by the scheme of s. 3(1 ). A landlord can normally evict his tenant by complying with the relevant provisions of the Transfer of Property Act. Section 3(1) inposes a statutory limitation on the said power by requiring the proof of one or the other of the seven grounds stated in clauses (a) to (g) of s. 3(1), before he can seek to evict his tenant. That limitation is removed by the sanction which the\n\nDistrict Magistrate may grant; and so, it is plain that the order which the District Magistrate passes under s. 3(2) affects the statutory rights of the tenants. That is one aspect of the matter which cannot be ignored.\n\nThe second aspect of the matter is that the party who may feel aggrieved by the orderpassed by the District Magistrate, is given the right to move the Commissioner in revision within the prescribed pericd of limitation. and this provision necessarily implies, that the District Magistrate should indicate his reasons why he makes a particular order under s. 3(2). Unless the District Magistrate indicates, though briefly, the reasons in support of his final order. the Commissioner would not be able to exercise his jurisdiction under s. 3(3). How could the Commissioner consider the question as to whether the order passed by the District Magistrate is correct or is legal or is proper. unless he knows the reasons on which the said order is based 1 Thus. the provision for a revisional application to the Commissioner atso indicates that the District Magistrate has to weigh the pros and cons of the matter and come to a certain conclusion before he makes the order. The rule naturally imports the requirement ithat the parties should bfl' allowed to put their versions before him. The District Magistrate cannot reasonably weigh the pros and cons unless both the landlord and the tenant are given an opportunity to place their versions before him. Therefore, we are satisfied that the jurisdiction conferred on the District Magistrate to deal with the rights of theparties is of such a character that principles of natural justice cannot be excluded from the proceedings before him.\n\nThis conclusion is very much strengthened when we consider the provisions of s. 3(3). This clause specifically requires the Commissioner to hear the application made under sub-s. (2) within the specified period. This requirement positiyely enacts that the proceedings before the Commissioner are quasi-judicial. This clause further provides that the Commissioner has to be satisfied as to the correctness. legality, or propriety of the order under revision.\n\nHe can also examine the question as to the regularity of the proceedings held before the District Magistrate. In our opinion, it is impossible to escape the conclusion that these provisions unambiguously suggest that the proceedings before the District Magistrate as well as before the Commissioner are quasi-judicial in character\n\nSUPREME COUl\\T l•EPORTS [1965] 3 s.c.n.\n\nFurther, the revisional power has to be exercised and a revisional order has to be passed by the Commissioner to serve the purpose of\n\njustice, because the clause provides that the Commissioner may make such other order as may be just and proper. Thus, we are satisfied that when the District Magistrate exercises his authority under s, 312) and the Commissioner exercises his revisional power under s. 3(31, they must act according to the principles of natural' justice. They are dealing with the question of the rights of the land lord and the tenant and they are required to adopt a judicial approach.\n\nIf that be the true position in regard to the proceedings contemplated by sub-s. 3(2) and sub-s. 3(3), it is not difficult to hold that the revisional proceedings which go before the State Gov ernment under s. 7-F, must partake of the same character. It is true that the State Government is authorised to call for the record suo motu, but that cannot alter the fact that the State Government would not be in a position to decide the matter entrusted to its jurisdiction under s. 7-F, unless it gives an opportunity to both the parties to place their respective points of view before it. It is the ends of justice which determine the nature of the order which the State Government would pass under s. 7-F, and it seems to us plain that in securing the ends of justice, the 'State Government cannot but apply principles of natural justice and offer a reason able opportunity to both the parties while it exercises its jurisdic tion under s. 7-F.\n\nWe have already referred to the general policy of the Act. In that connection, we may mention two other sections of the Act.\n\nSection 14 provides that no decree for the eviction of a tenant from any accommodation passed before the date of commencement of this Act, shall. in so far as it relates to the eviction of such tenant, be executed against him so long as this Act remains in force, except on any of the grounds mentioned in s. 3. This section emphatically brings out the main object of the Act which is to save the tenants from eviction. That is why it prescribes a bar against the execution of the decrees which may have been passed for the eviction of tenants before the Act came into force, unless the landlords are able to show one or the other ground inentioned in s 3.\n\nA similar provision is made bys. 15 in regard to pending suits ..\n\nIt lays down that in all suits for eviction of tenants from any accommodation pending on the date of commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in s. 3.\n\nThe provision also emphasises the importance attached by the Act to the protection of the ten a n11s\n\nfrom eviction. The right conferred on the tenant no to be evicted, except on the specified grounds enumerated by chmes (a) t~ (gl of s. 3(1), is a statutory right of great significance, and it is this statlltory right of which the tenants would be deprived when the landlord obtains the sanction of the District M 1'.'is•rate. That is\n\nSlllU BHAGWAN v. RAK CHAND (Gajendragadbr, C.J.) 227\n\nA why we think the Act must be taken to require that in exercising their respective powers under s. 3(2) and s. 3(3), the appropriato authorities have to consider the matter in a quasi-judicial manner, and are expected to follow the principles of natural justice before reaching their conclusions.\n\nWe have already indicated that the Allahabad High Court B had consistently taken the contrary view and held that the functions discharged by the appropriate authorities under s. 3(2) and s. 3(3) are administrative and an obligation to follow the principles of natural justice cannot be imposed on the said authorities vide Narettam Saran v. State of U.P.('). Indeed, after the learned single c Judge had held in the present proceedings that the view taken by the earlier decisions of the Allahabad High Court was erroneous, a Division Bench of the said High Court considered the same question once again and re-affirmed its earlier view vide: Mur/idhar v.\n\nState qf U.P.('). We have carefully considered the reasons given by the learned Judges when they re-affirmed the earlier view taken D by the High Court of Allahabad on this point. With respect, we are unable to agree with the decision in Murlidhar's(') case.\n\nIn this connection, we may refer to the decisions of this Court in Laxman Purshottam Pimputkar's(') case on which the learned single Judge partly relied in support of his conclusion. In that case, this Court was called upon to consider the question whether the revisional jurisdiction conferred on the State Government under s. 79 of the Watan Act was purely administrative, and it came to the conclusion that in exercising the said revisional juris diction, the State Government is not acting purely as an administrative authority; its decision is judicial or quasi-judicial, and so, it is essential th<., the State Government should follow the principles of natural justice before reaching its conclusion under that section.\n\nThe scheme of the relevant provisions of the Watan Act cannot, however, be said to be exactly similar to the scheme of the Act with which we are concerned; whereas section 3 of the Act with which we. are concerned in the present appeal deals with the statu G tory rights conferred on the tenants, the relevant sections of the Watan Act dealt with the right of possession of the Watan property itself. That being so, it cannot be said that the decision in Laxman Purshottam Pimputkar's(') case can be deemed to have overruled by necssary implication the view taken by the Allahabad High Court in regard to the nature of the power conferred on the appro- H priate authorities by ss. 3 and 7-F of the Act.\n\nBefore we part with this appeal, however, we ought •o point out that it would have been appropriate if the learned sinle Judge had not taken upon himself to consider the question as to whether the earlier decisions of the Division Benches of the High Court\n\n(') A.'.!'.. 1954 All. 232.\n\n(2) '..T.T'. I9fi4 All.. 148. ('I fl 964] I S.C.R. mo.\n\nL/B(N)3SCI-2\n\nneeded to be re-considered and revised. It is plain that the said decisions had not been directly or even by necessary implication overruled by any decision of this Court; indeed, the judgment delivered by the learned single Judge shows that he was persuaded to re-examine the matter himself and in fact he had substantial!y recorded his conclusion that the earlier decisions were erroneous even before his attention was drawn to the decision of this Court in Laxman Purshottam Pimputkar'sC) case. It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question.\n\nThat is the proper and traditional way to deal with such matters and it is founded on healthy principles of Judicial decorum and propriety. It is to be regretted that the learned single Judge departed from this traditional way in the present case and chose to examine the question himself.\n\nThe result is, the appeal fails and is dismissed. There will be no order as to costs.\n\nAppeal dismisse,.\n\n(') [1964] I S.C.R. 200", "total_entities": 103, "entities": [{"text": "BHAGWAN AND ANR", "label": "PETITIONER", "start_char": 5, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "BHAGWAN AND ANR", "offset_not_found": false}}, {"text": "RAM CHAND AND ANR", "label": "RESPONDENT", "start_char": 29, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "RAM CHAND AND ANR", "offset_not_found": false}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 65, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "P.B. 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(Temporary) Control of Rent and Eviction Act, 1947, for permission to file a suit in ejectment against the predeces.- sors-in-interest of the respondents who were the present tenants of certain premises in Agra."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 1027, "end_char": 1031, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 1713, "end_char": 1717, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 1888, "end_char": 1892, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 2188, "end_char": 2192, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 2258, "end_char": 2265, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(3)", "label": "PROVISION", "start_char": 2308, "end_char": 2315, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(1)", "label": "PROVISION", "start_char": 2565, "end_char": 2572, "source": "regex", "metadata": {"statute": null}}, {"text": "(1965] 2 S.C.R. 366", "label": "CASE_CITATION", "start_char": 3139, "end_char": 3158, "source": "regex", "metadata": {}}, {"text": "SRRI RRAGWA", "label": "PETITIONER", "start_char": 3255, "end_char": 3266, "source": "ner", "metadata": {"in_sentence": "~-----------\n\n\\ ---- .... ''\n\nSRRI RRAGWA>iv."}}, {"text": "[1964] 1 S.C.R. 200", "label": "CASE_CITATION", "start_char": 3568, "end_char": 3587, "source": "regex", "metadata": {}}, {"text": "Viswanatha Sastri", "label": "LAWYER", "start_char": 4494, "end_char": 4511, "source": "ner", "metadata": {"in_sentence": "A. v, Viswanatha Sastri, B. R. L. lyrngar, S. K. Mehta, and K. L. Mehta, for the appellants. ·"}}, {"text": "B. R. L. lyrngar", "label": "LAWYER", "start_char": 4513, "end_char": 4529, "source": "ner", "metadata": {"in_sentence": "A. v, Viswanatha Sastri, B. R. L. lyrngar, S. K. Mehta, and K. L. Mehta, for the appellants. ·"}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 4531, "end_char": 4542, "source": "ner", "metadata": {"in_sentence": "A. v, Viswanatha Sastri, B. R. L. lyrngar, S. K. Mehta, and K. L. Mehta, for the appellants. ·"}}, {"text": "K. L. Mehta", "label": "LAWYER", "start_char": 4548, "end_char": 4559, "source": "ner", "metadata": {"in_sentence": "A. v, Viswanatha Sastri, B. R. L. lyrngar, S. K. Mehta, and K. L. Mehta, for the appellants. ·"}}, {"text": "C. B. Agarwala", "label": "LAWYER", "start_char": 4584, "end_char": 4598, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, S. S. Khanuja and Gcnpat Rai."}}, {"text": "S. S. Khanuja", "label": "LAWYER", "start_char": 4600, "end_char": 4613, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, S. S. Khanuja and Gcnpat Rai."}}, {"text": "Gcnpat Rai", "label": "LAWYER", "start_char": 4618, "end_char": 4628, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, S. S. Khanuja and Gcnpat Rai."}}, {"text": "ijendragadkar", "label": "JUDGE", "start_char": 4705, "end_char": 4718, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was deliverd by G:ijendragadkar, C •. J. The short question of law which arises in this appeal by special leave is whether the reviSional orde1\n\npasser."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 4888, "end_char": 4892, "source": "regex", "metadata": {"statute": null}}, {"text": "Control of Rent and Eviction Act, 1947", "label": "STATUTE", "start_char": 4927, "end_char": 4965, "source": "regex", "metadata": {}}, {"text": "Ram Chand", "label": "RESPONDENT", "start_char": 5134, "end_char": 5143, "source": "ner", "metadata": {"in_sentence": "'er; the State Gov,, rnment did not hear the two respondents; Ram Chand and Kai!ash Chr.nd, .", "canonical_name": "RAM CHAND AND ANR"}}, {"text": "Kai!ash Chr.nd", "label": "LAWYER", "start_char": 5148, "end_char": 5162, "source": "ner", "metadata": {"in_sentence": "'er; the State Gov,, rnment did not hear the two respondents; Ram Chand and Kai!ash Chr.nd, ."}}, {"text": "Lala Shri", "label": "PETITIONER", "start_char": 5458, "end_char": 5467, "source": "ner", "metadata": {"in_sentence": "-Their predecessors were let into possession as tenants by the appell3nts, Lala Shri Bhagwan and Shrimati Go pal Devi, on an agreement that they would pay a monthly rent of Rs."}}, {"text": "Bhagwan", "label": "PETITIONER", "start_char": 5468, "end_char": 5475, "source": "ner", "metadata": {"in_sentence": "-Their predecessors were let into possession as tenants by the appell3nts, Lala Shri Bhagwan and Shrimati Go pal Devi, on an agreement that they would pay a monthly rent of Rs."}}, {"text": "Shrimati Go pal Devi", "label": "OTHER_PERSON", "start_char": 5480, "end_char": 5500, "source": "ner", "metadata": {"in_sentence": "-Their predecessors were let into possession as tenants by the appell3nts, Lala Shri Bhagwan and Shrimati Go pal Devi, on an agreement that they would pay a monthly rent of Rs."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 5790, "end_char": 5794, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}, {"text": "February 4, 1953", "label": "DATE", "start_char": 6812, "end_char": 6828, "source": "ner", "metadata": {"in_sentence": "On February 4, 1953, the revisional authority allowed the revisional application and set aside the appellate order granting permission to the appellants."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 7018, "end_char": 7022, "source": "regex", "metadata": {"statute": null}}, {"text": "May, 7, 1953", "label": "DATE", "start_char": 7040, "end_char": 7052, "source": "ner", "metadata": {"in_sentence": "On May, 7, 1953, the State Government directed the Commissioner to revise his order on the ground that it thought that the need of the appellants was genuine."}}, {"text": "July 28, J 953", "label": "DATE", "start_char": 7274, "end_char": 7288, "source": "ner", "metadata": {"in_sentence": "Acting in purs, uance of this direction, the Commissioner passed an order on July 28, J 953, by which he cancelled his previous order and\n\nconfirmed the order passed by the appellate authority, granting oermission to the appellants to sue the respondents in ejectment."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 7555, "end_char": 7559, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Judge, Agra", "label": "COURT", "start_char": 7672, "end_char": 7689, "source": "ner", "metadata": {"in_sentence": "After this order was passed, the appellants sued the respondents in ejectment in the court of the Civil Judge, Agra."}}, {"text": "August 31, 1957", "label": "DATE", "start_char": 8300, "end_char": 8315, "source": "ner", "metadata": {"in_sentence": "ants on August 31, 1957."}}, {"text": "First Additional Civil Judge, Agra", "label": "COURT", "start_char": 8400, "end_char": 8434, "source": "ner", "metadata": {"in_sentence": "The respondents challenged this decree by preferring an appeal in the court of the First Additional Civil Judge, Agra."}}, {"text": "30th May, 1959", "label": "DATE", "start_char": 8801, "end_char": 8815, "source": "ner", "metadata": {"in_sentence": "trial Judge, with the result that the respondents' appeal was dismissed, on the 30th May, 1959."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 8851, "end_char": 8871, "source": "ner", "metadata": {"in_sentence": "The respondents then went to the Allahabad High Court by way of second appeal."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 9528, "end_char": 9532, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 9664, "end_char": 9668, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 10287, "end_char": 10291, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 11396, "end_char": 11400, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 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"PROVISION", "start_char": 27391, "end_char": 27395, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(1)", "label": "PROVISION", "start_char": 27633, "end_char": 27640, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 27987, "end_char": 27994, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(3)", "label": "PROVISION", "start_char": 27999, "end_char": 28006, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 28364, "end_char": 28371, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(3)", "label": "PROVISION", "start_char": 28376, "end_char": 28383, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 28987, "end_char": 29010, "source": "ner", "metadata": {"in_sentence": "We have carefully considered the reasons given by the learned Judges when they re-affirmed the earlier view taken D by the High Court of Allahabad on this point."}}, {"text": "Murlidhar", "label": "OTHER_PERSON", "start_char": 29084, "end_char": 29093, "source": "ner", "metadata": {"in_sentence": "With respect, we are unable to agree with the decision in Murlidhar's(') case."}}, {"text": "Laxman Purshottam Pimputkar", "label": "OTHER_PERSON", "start_char": 29173, "end_char": 29200, "source": "ner", "metadata": {"in_sentence": "In this connection, we may refer to the decisions of this Court in Laxman Purshottam Pimputkar's(') case on which the learned single Judge partly relied in support of his conclusion.", "canonical_name": "Laxman Purshottam Pimputkar'sC"}}, {"text": "s. 79", "label": "PROVISION", "start_char": 29431, "end_char": 29436, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 29998, "end_char": 30007, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 3 and 7", "label": "PROVISION", "start_char": 30511, "end_char": 30522, "source": "regex", "metadata": {"statute": null}}, {"text": "Laxman Purshottam Pimputkar'sC", "label": "OTHER_PERSON", "start_char": 31355, "end_char": 31385, "source": "ner", "metadata": {"in_sentence": "It is plain that the said decisions had not been directly or even by necessary implication overruled by any decision of this Court; indeed, the judgment delivered by the learned single Judge shows that he was persuaded to re-examine the matter himself and in fact he had substantial!y recorded his conclusion that the earlier decisions were erroneous even before his attention was drawn to the decision of this Court in Laxman Purshottam Pimputkar'sC) case.", "canonical_name": "Laxman Purshottam Pimputkar'sC"}}]}
{"document_id": "1965_3_229_234_EN", "year": 1965, "text": "D •\n\nUNIVERSITY OF MYSORE\n\nGOPAL GOWDA AND ANOTHER March 2. 1965\n\n[K. SuBBA RAO, J. C. SHAH AND R. S. BACHAWAi.r, JJ.J Mysore University Act, 1956, ss. 22, 23, 43-Power to make regulations for \"maintenance of standards.,'-Scope of.\n\nUnder Sections 22, 23, and 43 of the Mysore University Act, the Academic Council of the University \\\\i., as empowered, inter alia, to control and operate the teaching, courses of study, to secure maintenance of standards, etc., and to make necessary regulations including those relating to examinations, and conditions on which student~ may be admitted to examinations, degrees, diplomas, etc.\n\nIn exercise of these powers, the Academio Council made certain Regulations relating to the grant of a degree of Bachelor of Veterinary Science and by clause 3(c: of these Regulations, it was provided that no candidate who failed an examination four times, would be permitted to continue the course.\n\nThe respondents were declared unsuccessful in four successive First Year Course examinations and the Controller of Examinations informed each respondent that he had lost their right to continue studying for the degree. The respondents thereupon filed petition~ in the High Court, praying for the issue of writs quashing the orders communicated to them and directing the University to permit them to appear for the subsequent examinations and to continue their studies.\n\nThe High Court held that Regulation 3(c) was beyond the competence of the Academic Council and the University.\n\nOn appeal to this Court: HELD: that power to maintain standards in the course of studies confers authority not merely to presc<ribe minimum qualifications for admission, courses of study, minimum attendance at an institution which may qualify the student for admission to the examination, etc., but also authority to refuse to grant a degree, diploma, or othe11 academic distinction to students who fail at the final examination and to direct that a student, who is proved not to have the ability or the aptitude to complete the course within a reasonable time, 1o discontinue the course.\n\nThere is no warrant for restricting the expression \"maintenance of standards\" only to matters such as minimum attendance, Ieng!~ of the course and prescription of minimum academic attainments.\n\n[233F-H] CIVIL APPELLA\\TE JURISDICTION: Civil Appeals Nos. 565- 566 of 1963.\n\nAppeals by special leave from the judgment and order dated January 31, 1962 of the Mysore High Court in Writ Petitions Nos. 940 and 1056 of 1961.\n\nG. S. Pathak and M /s. Rajinder Narain and Co. for tbe appellants.\n\nR. Gopalakrishnan, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nShah, J. These appeals raise the question whether the Academic Council of the Mysore University was competent in exercise\n\nof the powers conferred by ss. 22, 23 and 43 of the Mysore University A Act 23 of 1956 to frame cl. 3(c)· of the Regulations relating to the grant of the degree for Bachelor of Veterinary Science (B.V.Sc.).\n\nThe Mysore University Act 23 of 1956-hereinafter referred to as 'the Act'-was enacted to provide for the reorganisation of the University of Mysore and other incidental matters. The powers of the University are described in s. 4. Section 21 provides for the con- B stitution of the Academic Council-which is one of the authorities of the University designated under s. 13-and s: 22 sets out the powers of the Academic Council. It provides:\n\n\"The Academic Council shall, subject to the provisions of this Act, have the control and general regulation of C teaching; courses of studie.s to be pursued, and maintenance of the standards thereof and shall exercise such other powers and perform such other duties as may be prescribed.\"\n\nBy s. 23 other powers of the Academic Council are prescribed.\n\nInsofar as it is material, the section provides: D\n\n\"In particular anj without prejudice to the generality of the powers specified in section 22, the Academic Council shall have, subject to the previsions of this Act, the following powers, namely:\n\n(a)\n\n(b)\n\nx x\n\nx x\n\n(c) to make Rgulations relating to courses, schemes of examinations and conditions on which students shall\n\nbe admitted to the examinations, degrees, diplomas, cer F tificates and ether academic distinctions;\"\n\nSection 43 of the Act sets out the scope of the Regulations. It enacts :\n\n\"Subject to the provisions of this Act, the Regulations may provide for the exercise of all or any of the powers, G enumerated in \"secticns 22 and 23 of this Act and for the following matters, namely:\n\n(i) the admission of students to the University;\n\nIii) the recognition of the examinations and degrees of other Universities as equivalent to the examinations and R degrees of the University;\n\ntiii) the University coJ'rses and examinations and the condit\\ons on which students of the University and affiliated colleges and ether Unive sity iiiStitutions shall be admitted to examinations for the degrees, diplomas and\n\nertificates of the University; and\n\nc I\n\n(iv) the granting of exemptions.\" In exercise of the powers conferred by ss. 22, 23 and 43, the\n\nAcademic Council made Regulations relating to the grant of a degree for Bachelor of Veterinary Science. Clause 3(c) of the Regu. lations is as follows:\n\n\"No candidate who fails four times shall be permitted to continue the course.\" The Mysore Veterinary College, Hebbal, Bangalore, is one of tho colleges affiliated to the University of Mysore for training students for the degree course in Bachelor of Veterinary Science (B.V.Sc.).\n\nThese two appeals arise on facts which are closely parallel.\n\nGopala Gowda-respondent in C.A. No. 565 of 1963-was admitt ed in the year 1958 as a student in the First Year Course in the Mysore Veterinary College. Gopala Gowda was declared unsuccess. ful in four successive First Year Course examinations. The Con troller of Examinatiorn;, Mysore University, then informed Gopalai\n\nGowda by letter dated August 2, 1961 that he \"had lost\" his right to continue studies for the Bachelor of Veterinary Science (B.V.Sc.) course under Regulation 3(c) of the Regulations governing the course of study framed by the University leading to the degree of the Bachelor of Veterinary Science (B.V.Sc.). Gopala Gowda then presented a petition in the High Court of Mysore praying that, for reasons set out in his affidavit, the High Court do issue a writ quashing the order communicated by the Controller of Examina\n\ntions in his letter dated August 2, 1961 and do further direct the University of Mysore and the Controller of Examinations to permit him to appear for the subsequent examinations and to prosecute his training for the Bachelor of Veterinary Science Course. The other respondent Bheemappa Reddy had also failed to satisfy the examiners in four successive First Year Course examinations com mencing from April 1959, and on being intimated by the Controller of Examinations that he will not be permitted to continue his train ing for the Bachelor of Veterinary Science (B.V.Sc.) course under Regulation 3(c), he filed a similar writ petition in the High Court.\n\nThe High Court of Mysore held that Regulation 3(c) of thci Regulations governing the course of study leading to confermeni of the degree of Bachelor of Veterinary Science of the Mysore University could not be said \"to subserve the purpose of maintain ing the standards mentioned in s. 22 of the Mysore University Act\" and on that account was beyond the competence of the Academic Council or the University and those bodies had no power to prevent Gopala Gowda and Bheemappa from prosecuting their studies and from appearing at the subsequent examinations. With special leave, the University of Mysore, the Controller of Examinations and the Principal of the Mysore Veterinary College, have appealed.\n\nIn the view of the High Court, under s. 22 of the Act the Academic Council could prescribe minimum qualifications for\n\n!3!\n\nSUPREME COURT REPOHTS\n\n(J 965) 3 S.C.R.\n\n• ar:'.mission to a degree course in an affiliated college, and also could prescPibe standards which qualify a candidate for admission to the degree or academic distinction, but the Coundl had not the power to prescribe a condition on the satisfaction of which a\n\nstudent admitted to the Course could prosecute his study in the course to which he had been admitted. Power to frame Regulations for \"maintenance of standards\" within the meaning of s. 22 and vrescribing conditions on which a student shall be admitted to an examination within the meaning of s. 23(3) (c) did not, in the opinion of the High Court, import power to make Regulation preventing a student admitted to a course from prosecuting his study, for the\n\nonly consequence of failure in an examination is that the student does not qualify himself for admission to the degree sought by him,'and the University would be entitled to withhold conferment of the degree. but not to obstruct the prosecution of the course of\n\nstudy. The expression \"maintenance of standards\" in the view of the High Court could only take in considerations such as undergoing a course of study and keeping a prescribed minimum attendance to an institution maintained or recognised by the University, but it does not and \"cannot be taken to mean that by reason only of the fact that a student has not attained the standard of knowledge or proficiency required for passing the examination within that period, he can be said to be for all times incapable of attaining that standard.\" The High Court proceeded to observe \"The power to maintain certain standards before a degree or other academic distinction is conferred upon a person involves the power to withhold the conferment of that degree unless a person attains the necessary standard, but it cannot either in logic or in justice involve the power to refuse to permit a person to attain that standard. That power can and should be exercised at the time of admission into the course of study if the University is of the opinion that the applicant for .admission into the course does not even possess the minimum suitability for taking that course of study.\n\nOnce it admits him into the course of study, it must be held to have entertained the opinion that he does have the minimum suitability to take that course which means that he has the capacity by undergoing the course of study to attain the standard necessary for receiving the degree.\"\n\nWe are unable to agree with the view expressed by the High Court. The Academic Coundl is invested with the power of controiling and generally regulating teaching, courses of studies to be pursued, and maintenance of the standards thereof, and for those H purposes the Academic Council is competent to make regulations, amon_gst others, relating to the courses. schemes of examim, tions and conditions on which students shall be admitted to the ex;•minations, degrees, diplomas, certificates and other 8Cademic' distinctions. The Acarlemic Council is thereby invested with power to co:itrol the entire academic life of the student from -the stage of\n\nadmission to a course of study to the ultimate conferment of a. degree or academic distinction. Admission to a course or branch ol\n\nstudy depending upon possession of the minimum qualifications prescribed does not divest the Academic Council of its control over the academic career of the student, for the Council has for maintaining standards the power to prescribe schemes of examinations, and also to prescribe conditions on which students shall be admitted to the examinations. Power to prescribe conditions on which a student may be admitted to the examinations, in our opinion, neces sarily implies the power to refuse to admit a student. in certain contingencies, for the power to admit to an examination implies the p0wer to weed out students who have on the application of a reasonable test proved themselves to be unfit to continue the course or prcsecute training in that course. If on account of general inaptitude for being trained in a course or on account of supervening disability to prosecute a c9urse of study, a student admitted to that course is found by the Academic Council to be unfit to prosecute his training, it would, in our judgment, be within the power of the Academic Council, in exercise of its authority to control and maintain standards, and also of its authority to prescribe conditions on which students may be admitted to examinations, to direct that thei student shall discontinue training in that course. And failure by a student to quolify for promotion or degree in four examinations, is certainly a reasonable test of such inaptitude or superver:ing disability. If after securing admission to an institution imparting training for professional courses, a student may be held entitled to continue indefinitely to attend the institution without ade,1uate application and to continue to offer himself for successive examinations, a lowering of academic standards would inevitably result.\n\nPower to maintain standards in the course of studies, in oµr judg ment, confers authority not merely to prescribe minimum qualifications for admission, courses of study, and minimum attendance a~\n\nan institution which may qualify the student for admission to thel examination, but also authority to refuse to grant a degree, diploma, certificate or other academic distinction to students who fail to satisfy the examiners at the final examination, and to direct that a student who is proved not to have the ability or the aptitude to complete the course within a reasonable time to discontinue the course. There is no warrant for restricting the expression \"maintenance of the standards\" only to matters such as minimum attendance, length of the course and prescription of minimum academic attainments.\n\nThe High Court was therefore in error in holding that tho Academic Council had no power to prescribe Regulation 3(c). We are informed at the Bar, however, that since the High Court decided the case on January 31, 1962, the two respondents were permitted to continue their courses of study and they have appeared for the subsequent examinations and they were declared to have duly\n\npassed their second and third year examination and have been permitted to keep terms for the degree examination. Even though, the view taken by the High Court was erroneous, we do not think, having regard to the fact that the respondents were permitted to continue their course of study, the University not having applied for any interim orders pending disposal of these appeals, that any order should be passed in these appeals so as to deprive .the respondents of the training they have received. .\n\nThese appeals are filed with special leave, add in the exceptional circumstances of the case, we do not think we would be justified, merely because we disag1e w; th the int~.prctatiun of the High Court of the relevant regulation, in making an effective order against the respondents so as to nullify the resul~~ declared by the University concerning them in r•e3pect of the second and third yeur exan1i11udons.\n\nThe appeals are therefore dismissed. There Will be no order as to costs.\n\nAppeals dismi.ised.", "total_entities": 38, "entities": [{"text": "UNIVERSITY OF MYSORE", "label": "PETITIONER", "start_char": 5, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "UNIVERSITY OF MYSORE", "offset_not_found": false}}, {"text": "GOPAL GOWDA AND ANOTHER", "label": "RESPONDENT", "start_char": 27, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "GOPAL GOWDA AND ANOTHER", "offset_not_found": false}}, {"text": "March 2. 1965", "label": "DATE", "start_char": 51, "end_char": 64, "source": "ner", "metadata": {"in_sentence": "D •\n\nUNIVERSITY OF MYSORE\n\nGOPAL GOWDA AND ANOTHER March 2."}}, {"text": "K. SuBBA RAO, J.", "label": "JUDGE", "start_char": 67, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 84, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "J.C. 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Pathak and M /s."}}, {"text": "Rajinder Narain and Co.", "label": "PETITIONER", "start_char": 2542, "end_char": 2565, "source": "ner", "metadata": {"in_sentence": "Rajinder Narain and Co. for tbe appellants."}}, {"text": "R. Gopalakrishnan", "label": "LAWYER", "start_char": 2587, "end_char": 2604, "source": "ner", "metadata": {"in_sentence": "R. Gopalakrishnan, for the respondent."}}, {"text": "Shah", "label": "JUDGE", "start_char": 2671, "end_char": 2675, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. 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{"document_id": "1965_3_235_253_EN", "year": 1965, "text": "HARBHAJAN SINGH v.\n\nSTATE OF PUNJAB March 2, 1965\n\n(P. B. GAJENDRAGADKAR, C.J., RAGHUBAR DAYAL AND V. RAMA-\n\nSWAMI, JJ.] Indian Penal Code (Act 45 of 1860) s. 499, Exception Nine- Scope of.\n\nThe Government of Punjab issued a press note stating that certain dailies in the States were publishing false reports alleging the complicity of a Nlinister's son in smuggling, that the allegations vvere made with a view to malign the Government, and, that the name of the son should be openly mentioned. In response to that challenge the appellant, who was a public worker, publ'shed a statement in the prei; s, naming the Chief Minister's son as the leader of the emui;- glers, and as also responsible for a large number of crimes. c also requested that the Government should appoint a committee of independent Judges to inquire into the matter. The Ch'ef Minder's\n\nson then filed a complaint of. defamation against the appellant. After the complainant and his witnesses were examined, the appellcnt filed a detailed written statement in answer to the questions under s. 342, Criminal Procedure Code, ten months after he was questioned underl that section. He claimed therein the protection of both the First and Ninth Exceptions to s. 449 of the Indian Penal Code, 1860. At the very commencement of the proceedings, he gave a list of 328 witnesses to be examined on his behalf. He was allowed to summon only 35 and eventually he examined 2() defence witnesses. He also produced several documents. After considering the oral and documentary evidence, the trial Court convicted the appellant. In his appeal to the High Court, he claimed only the protection of tee Ninth\n\nException th'.t is, that he published the statement in good fcith and for public good. The High Court dismissed the appeal, with a modification in the sentence.\n\nIn his appeal to this Court, the appellant contended that, in appreciating his evidence in respect. of good faith, the High Court had misdirected itself.\n\nHELD: A broad survey of the evidence led by the appellant. and the background in which the impugned statement was made, show that the H'gh Court was in error in holding that the nppellant had failed to show that he acted in good faith when he published thr, statement. (253 B-C]\n\n(ii) The High Court had misdirected itself in dealing with the question about the nature and scope of the onus of proof which the appellant had to discharge in seeking the protection of the Ninth Exception, because, it held that in discharging the onus, the plea should be proved by the appellant as strictly as if the complainant was being prosecuted for the offence. Where the burden of an issuf' lies upon the accused under s. 105 of the Evidence Act. he i' !tot required to discharge the burden by lead'ng evidence to prove his case beyond a reasonable doubt. It is sufficient if he succeeds .in proving a preponderance of probability, for then, the burden is shifted to the prosecution which has still to discharge its original onus that never sh'fts, that is, to establish on the whole case the guilt beyond a reasonable doubt. (240 H; 241 C-G; 243A-B] R. v. Carr-Braint, [1943 J 2 All. E.R. 156, referred to.\n\n(ii) While dealing with the appellant's claim for protection under the Ninth Exception, the High Court had confused the requirements\n\nSUPREME COURT REPORTS (1965] 3 S.C.Jlt\n\nof the First Exception with those of the Ninth. It was not necessary to consider whether the appellant had strictly proved the truth of the allegation made by him, because, proof of truth of the impugned statement is not an element of the Ninth Exception as .it is of the First. What the Ninth Exception requires an accused person to prove is that he made the statement in gcod faith. The question as to whether the accused acted in good faith would depend on the facts and circumstances of each case. What is the nature of the imputation made; under what circumstances did it come to be made; what is the status of the person who makes the imputation; was there any malice in his mind when he made the imputation; did he make any enquiry before he made it; are there reasons to aocept his story, that he acted 'Nith due care and attention and was satisfied that the imputation was true; these, and other considerations would be relevant in deciding the question. [243 B-E; 244 G'H]\n\n(iii) The High Court also erred in holding that the appellant's written s!atement should net be seriously considered, as he did not make out hio case of good faith at the early stage of the trial, and that the written statement was likely to have been influenced by legal advice. If the wri'tten statement filed after a long delay contained pleas which could otherwise be legitimately regarded as matters of after-thought. that no doubt, would affect the value of the pleas taken in the written statetnent. But, the fact that at the very commencement of the proceedings, the a)')pellant called for a large number of witnesses and documents, .and the evidence led by him as well as the nature of the cross'examination to which he subjected the comrlainant and his witnesses, make it difficult to reject his plea of good faith, on the ground that the written statement was filed very late and the pleas taken in it might be an after-thought.\n\n[245 H, B-C; 246 E-F].\n\nTHkeshwar Singh and others v. State of Bihar, A.LR. 1956,. C. :239, Pxplair.ed.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 53 of 1961.\n\nAppeal by special leave from the judgment and order dated November JS, 1960 of the Puajab High Court in Criminal Appeal No. 86-D of 1959.\n\nT. R. Bhasin, S. C. Malik, Sushma Malik and Ram Behja Lal Malik, for the appellant.\n\nR. N. Sachthey, for respondent No. I.\n\nRam Lal Anand, Ajit Singh Johar, S. K. Mehta, and K. L.\n\nMehta, for respondent No. 2.\n\nThe Judgment of the Court was delivered by Gajendragadkar, C. J. By this appeal, which has been brought to this Ccurt by special leave, the appellant Harbhajan Singh challenges the correctness of his conviction for an offence under s. 500 of the Indian Penal Code, and the sentence imposed on him for tlie said offence. The criminal proceedings against the appellant were started on a complaint filed by Surinder Singh Kairon, son of S. Partap Singh Kairon, who was at the relevant time the Chief Minister of the State of Punjab. In his complaint, the complainant Surinder Singh alleged that the appellant had published in the Press a statement against him which was highly defamatory of him. The said statement was published in the \"Blitz\",\n\nHARBHAJAN SINGH v. STATE OF PUNJAB (Gajendragadk \"· C.J.)\n\n23T\n\nwhich is a weekly magazine of Bombay, on July 23, 1957. and extracts from it were given publicity in the \"Times of India\" and certain other papers. According to the complaint. the defamatory statement was absolutely untrue and by publishing it. the appeJ. lant had rendered himself liable to be punished under s. 500, I.P.C.\n\nIt appears that on July 22/23, 1957, the Punjab Government issued a Press note in which it was averred that certain Urdu Dailies from J ullundur were indulging in mischief and false pro paganda, alleging complicity of a Minister's son in smuggling on the border. The Press note alleged that this was done with a view to malign the Government and to cause suspicion in the mind of public. Tbe Punjab Government categorically denied the said allegation. The Press note added that the papers which were publishing the said false reports should come out openly with the name of the son of the Minister instead of repeatedly publishing things in a vague and indirect manner, and that they should not take shelter behind anonymity and should net be afraid of the consequences of the publication of these allegations. The Press note concluded with the statement that the Punjab Government had already taken steps to curb smuggling and they were determined to put it down with a firm hand.\n\nIt was in response to the challenge thus issued by the Punjab Government in its Press note that the appellant published the impugned statement which reads:\n\n\"My attention has been drawn to a Punjab Government Press Ncte categorically denying the complicity of a Minister's son in smuggling. That Press Note also throws a challenge to some Urdu Dailies \"to come out openly V.ith the name of the son of the Minister\" and then fase the consequences. I don't know whether the newspapers concerned will take up this challenge of the Punjab Government or not, but as one of those who have been naming that son of the Minister as one of the leaders of the smugglers from Public platform, I hereby name that son as Surinder Singh ; Kairon son of S. Partap Singh Kairon, Chief Minister. And I do so determined to face the consequences of the charge being openly levied by me. I further allege that the son of our Chief Minister is not only a leader of smugglers but is responsible for a large number of crimes being committed in the Punjab. But because the culprit happens to be Chief Minister's son the cases are always shelved up.\n\nIf the Punjab Government accepts this challenge, it should do so by appointing an independent committee of impartial Judges from outside the Punjab and then Jet us see who has to face the consequences. If the Pun_iab Government dare not do so, I would not.m; nd serving a term in Jail for hav.ing had the courage to come out with the\n\nSUPREME COURT REPORTS (1965] 3 B.O.ll.\n\ntruth. May I bring it to the notice of Punjab Government that Chief Minister's son is being discussed in almost every Punjabi house, but people are afraid of talking about him in public lest they be punished for that.\" It is this statement which has given rise to the present criminal proceedings.\n\nAfter this statement was published, Mr. Ajaib Singh, Senior Superintendent of Police, Amritsar, issued a statement on the 25th July, 1957, which was published in the \"Tribune\" on the 26th July.\n\nBy this statement, Mr. Ajaib Singh assured the people that persons concerned in sniu6giing cases had been interrogated and he was satisfied that the a11egation that some Minister's son was involved in smuggling was false and inaccurate. To this statement, the appel !ant issued a rejoinder which was published in the \"Hind\n\nSamachar\", which is an Urdu Daily cf Jul!undur, on July 27, 1957.\n\nThen, followed the complaint which was filed by the complainant on August 17. !957. That, shortly stated, is the background of the present criminal proceedings.\n\nThe complaint was filed in the court of the Magistrate, First Class, Tarn Taran. Thereafter, the appellant moved this Court under s. 527 of the Criminal Procedure Code for the transfer of the said case from the court of the Magistrate where it had been filed. This Court directed on October 4, 1957, that the case in question hould be remitted to the Punjab High Court so that it should be transferred by the said High Court from the court of the Magistrate at :rarn Taran to a court of Sessions in Delhi. That is how the case was transferred to the court of the Additional Sessions Judge, Delhi, and was tried by him.\n\nIn support of his complaint, the complainant examined himself and led evidence of three other witnesses. The purport of the oral evidence led by the complainant was to show that the complainant was a person of status and good reputation, was carrying on business and had suffered in reputatian and character by the defamatory statement published by the appellant.\n\nWhen the appellant was examined under s. 342, Cr. P. C., he told the learned Judge that he would prefer to file a detailed written statement. Later, he did file his written statement and made several pleas against the charge levelled against him by the comp, lainant. In substance, he alleged that the allegaticns made by him in his impugned statement were true and he had published the said allegations in the interest of public' good. In other words, he claimed the protection of the First Exception to s. 499, IPC. He also pleaded that the imputation which he had made against the complainant had been made in good faith and for public good.\n\nThus, he also claimed the protection of the Ninth Exception to s. 499, IPC.\n\nl n support of his defence the appellant wanted to summon 328 witnesses and a large number of documents. The trial court allowed\n\nHARBHAJAN SINGH v. STATE OF PUNJAR (Gujendragadkar, C.J.) 239\n\nhim to summon 35 witnesses in all, but eventuaJ!y he examined only 20 defence witnesses. He also produced several documents.\n\nAfter considering the oral and documentary evidence produced before him, the learned trial Judge came to the conclusion that the words used by the appellant in his statement, which was published in the Papers, were defamatory per se, and he held that the appellant had failed to make out a case either under the First Exception or under the Ninth Exception. In the result, he convicted the appellant and sentenced him to one year's simple imprisonment.\n\nThe appellant then preferred an ap11eal before the Punjab High Court, challenging the correctness and propriety of the order of conviction and sentence passed against him by the learned trial Judge. Before the appeJlate Court, the appellant claimed the protection of the Ninth Exception only and did not press his case that he was entitled to the protection of the First Exception as well. He also urged that he had been materially prejudiced inasmuch as the trial Judge h<id not given him a fair and proper opportunity to lead his evidence both oral and documentary. The learned single Judge, who heard his appeal, considered the auments urged before him on behalf of the appellant and came to the conclusion that the appellant had failed to prove his claim that the impugned statement fell within the scope of the Ninth Exception to s. 499, IPC. He took the view that the appellant had \"completely failed to\n\nstantiate the plea of good faith.\" The material which had been placed before the trial Judge in support of defence of good faith was, according to the High Court, of a very flimsy character and could not sustain the plea. It may be pointed out at this stage that the High Court found that in case the appellant had proved his good faith, it would not have felt any difficulty in coming t0 the conclusion that the publication of the impugned statement was for the public good. But since, according to the High Court, good faith had not been proved, the appellant was not entitled to claim the protection of the Ninth Exception. Then, as regards the grievance made by the appellant that he had not been given a reasonable opportunity to lead his evidence, the High Court held that the said grievance was not well-founded. In that connection, the High Court referred to the fact that though the tria I Judge had allowed the appellant to examine 35 witnesses, the appellant examined only 20 witnesses, :1nd it observed that the large m1ss of documentary evidence which had been produced by the appellant did not serve any useful or material purpose even for the defence of the appellant; and so the c0ntention that prejudice had been causd to him by the failure of the learned trial Juge to give hi'Tl a reasonable opportunity to lead evidence was rejected by the High Court.\n\nIn the result, the High Court confirmed the order of convicticn passed against the appellant by the tri I Jule. but ordered th1t instead of undergoing one year's simple impriscnmrnt. the :tpDcllant shall undergo three months' simple :.,.., prisonment ?nrl pay a\n\nfine of Rs. 2,000. In default of payment of fine, l)e, was directed to\n\n240 SUPREME COUR'r REPORTS fl9fifi] 3 s.c.e.\n\nundergo three months' siil]ple imprisonment. It is against this order that the appellant has come to this Court by special leave.\n\nNormally, we would not hav~ examined the correctness of the finding recorded by the High Court in respect of !lie appellant's plea of good faith, because that is a finding made by the High Court o'n appreciating oral and documentary evidence and as it happens, the said finding confirms the view taken by the trial Judge himself. Whether or not good faith has been proved by an accused person who pleads in his defence the Ninth Exception to a charge of defamation under s. 500, IPC, would be a question of fact and even if it is assumed to be a mixed question of fact and law, if the courts below make a concurrent finding on such a question, this Court generally does not e-examine the matter for itself while exercising its jurisdiction under Art. 136 of the Constitution. But in the present case, we cannot accept tlie finding of the High Court, because it is plain that in dealing with the question of good faith the High Court has misdirected itself materially on point of law.\n\nSection 499 of the Code defines defamation. It is unnecessary to set out the said definition, because it is common ground that the impugned statement published by the appellant is per se defamatory, and .so, we must proceed to deal with the present appeal on the basis that the said statement would harm the reputation of the complainant. Exception 9 to s. 499 provides that it is not defamation to make an imputation on the character of another, provided the imputation be made in good faith for the protection of the interest of the person making it, or for any other person, or for the public good. In the present case, the ingredient of public good is satisfied, and the only question which arose for decision in the court below and which arises before us, is whether the imputation can be said to have been made in good faith. There is no doubt that the requirements of good faith and public good have both to be satisfied, and so, the failure of the appellant to prove good faith would exclude the application of the Ninth Exception in his favour, even if the requirement of public good is satisfied.\n\nThis position is not disputed by Mr. T. R. Bhasin who appears for the appellant.\n\nMr. . Bhasin, however, contends that in appreciating the evidence of the appellant and his arguments in respect of his good faith, the High Court has•dearly misdirected itself, because it has. expressly observed that in' <iischarging the onus of providing good faith, it is necessary to remember Jl; lat the plea of good faith must be proved \"as strictly as if the complainant were being tried for the offences imputed to him.\" The HighTourt has added that the accused pleading justification virtually becomes the accuser, and that is why the burden has been placed by law upon him both in England and in India. The learned Judge of the High Court made his point still clearer with the observation that in cases of criminal defamation, an accused has not only to justify the whole of his libel, but the plea taken has to be proved as strictly as if the complainant\n\n.A.\n\nHARBHAJAN BI:<(JH ,., STAT!•' OF PC!'.fAB (G.tjendr g .dklr, O.J.) 241\n\nwas being prosecuted for the offence. The same observation\" have been repeated by the learned Judge in several places in his judgment. Mr. Bhasin contends that the approach which the learned Judge has adopted in dealing with the plea raised by the appellant under l'xception 9 is clearly erroneous. In cur opinion, Mr. Bhasi,1 is right. lt is true that under s. 105 of the Evidence Act, if an accused person claims the benefit of Exceptions, the burden of proving his plea that his case falls under the Exceptions is on the accused. But the question which often arises and has been frequently con5idered by judicial decisions is whether the nature and extent of the onus of proof placed on an accused person who claims the benefit of an Exception is exactly the same as the nature and extent of the onus placed on the prosecution in a criminal case; and there is consensu; of judicial opinion in favour of the view that where tlm burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond\n\n:i reasonable dnubt. That. no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to a.1 accused person who seeks to prove substantially his claim that his case falls under an Exception, Where an accused person is called upon to prove that his case falls under an Exception, iaw treats the onus as discharged if the accused person succeeds \"in\n\nproving a preponderance of probability.\" As soon as the preponderance of probability is proved, the burderi shifts to the prosecution which has still to discharge its original onus. It must be remembered that basic:Jy, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt. As Phipson has observed, when the burd.:n of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; it is sufficient if he succeeds in proving a preponderance of probability, for then the burden is shifted to the prosecution which has still to discharge its original onus that never shifts, i.e., that f establishing, on the whole case, guilt beyond a reasonable doubt.\n\nIt will be recalled that it was with a view to emphasising the fundamental doctrine of criminal Jaw that the onus to prove its\n\ncas~ lies on the prosecution, that Viscount Sankey in W oolmington\n\nv. Director of Public Prosecutions(') observed that \"no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.\" This principle of common law is a part of the criminal law in this country. That is not to say that if an Exception is pleaded by an accused person, he rs not required to justify his plea; but the degre¢ and character of proof which the accused is expected\n\n' (1935J A.C. 452.\n\nto furniSh in support of his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case.\n\nIn this connection, it may be relevant to refer to the observations made by Humphreys J. in R. v. Carr-Braint('): \"Lord Hailsham, L. C., [in Sodem® v. R. [ 19361- 2 All E.R. 1138] was in agreement with the decision of the majority. of the Supreme Court of Canada, in R. v. Clark [(1921) 61 S.C.R. 608] where Duff J., in the course of his judgment, expressed the view that the necessity for excluding doubt contained in the rule as to the onus upon the prosecution in criminal cases might be regarded as an exception founded upon considerations of public policy. There can be no consideration of public policy calling for similar stringency in the case of an accused person endeavouring to displace a rebuttable\n\npresumption.\" In R. v. Corr-Braint('), a somewhat similar question arose before the Court. In that case, the appellant was charged with the offence of corruptly making a gift or loan to a person in the employ of the War Department as an inducement to show, or as a reward for showing, favour to him. This charge was laid under the Prevention of Corruption Act, 1916, and in respect of such a charge, s. 2 of the Prevention of Corruption Act, 1916, had provided .that a consideration shall be deemed to be given corruptly unless the contrary is proved. The question which arose before the Court was; what is the accused required to prove if he wants to claim the benefit of tlie exception? At the trial, the Judge had directed the jury that the onus of proving his innocence lay on the accused and that the burden of proof resting on him to negative corruption was as heavy as that ordinarily resting on the prosecution. In other words, the Judge in substance told the jury that the accused had to prove his innocence beyond. a reasonable doubt The Court of Criminal Appeal held that this direction did not correctly represent the true position in law. According to the Court of Appeal, the onus on the accused was only to satisfy the jury of the probability of that which he was called upon to establish, and if he satisfied the jury that the probability was that the gift was made innocently, the statutory presumption was rebutted ; md he was entitled to be acquitted.\n\nWhat the Court ofi Criminal Appeal held about the appellant in the said case before it is substantially true about the appellant before us. If it can be shown that the appellant has Jed evidence to show that he acted in good faith, and by the test of probabilities that evidence proves his case, he will be entitled to claim the benefit of Exception Nine. In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities, so must a criminal court hold that _the plea made by the accused is proved if a pre-\n\n• [1943] 2 All. E.!:. J.>1.\n\nf!ARBHAJAN SINGH v. STATE OF PUNJAB (Gajendra.gadkar, C.J.) 213\n\nponderance of probability is established by the _evi?ence . led by him. We are, therefore, satisfied that Mr. Bhasm 1s entitled to contend that the learned Judge has misdirected himself in law in dealing with the question about the ature an_d scop~ of the ous of proof which the appellant had to discharge m seekmg protectlrln of Exception Nine.\n\nThere is another infirmity in the judgment of the High Court, and that arise~ from the fact that while dealing with the appellant's claim for protection under the Ninth Exception, the learned Judge has inadvertently confused the requirements of Exception One with those of Exception Nine. The First Exception to s. 499 is available to an accused person if it is shown by him that the impugned statement was true and had been made public for the public good. In other words, the two requirements of the First Exception are that the impugned statement must be shown to be true and that its publication must be shown to be for public good.\n\nThe proof of truth which is one oi the ingredients of the First Exception is not an ingredient of the Ninth Exception. What the Ninth Exception requires an accused person to prove is that he made the statement in good faith. We will presently consider what this requirement means. But at this stage, it is enough to point out that the proof of truth of the impugned statement is not an element of the Ninth Exception as it is of the First; and yet, in dealing with the appellant's case under the Ninth Exception, the learned Judge in several places, lias emphasised the fact that the evidence led by the accused did not prove the truth of the allegations which hQ made in his impugned statement. The learned Judge has expressly stated at the commencement of his judgment that the appellant had not pressed before him his plea under the First Exception, and yet he proceeded to examine whether the evidence adduced by the appellant established the truth of the allegations made in his impugned statement as though the appellant was arguing before him his case under the First Exception. In dealing with the claim\n\nof the appellant under the Ninth Exception, it was not necessary, and indeed it was immaterial, to consider whether the appellant had strictly proved the truth of the allegations made by him.\n\nThat takes us to the question as to what the requirement of good faith means.\n\nGood faith is defined by s. 52 of the fode.\n\nNothing, says s. 52, is said to be done or blieved in 'good faith'. which is done or believed without due care and attention. It will be recalled that under the General Clauses Act, \"A thing shall be deemed to be done in good faith where it is in fact done honestlv whether it is done negligently or not.\" The element of honesty which is introduced by the definition prescribed by the General Clauses Act is not introduced by the definition of the Code; and we are governed by the definition prescribed by s. 52 of the Code. So in considering the question as to whether the appellant acted i~ good faith in publishing his impugned statement, we have to enquire whether he acted with due care and attention. There is\n\nL/B(N)3SCI-3\n\nSUPREME COURT REPORTS (1965] 3 S.C.J.t.\n\nno doubt that the mere plea that the accused believed that what he stated was true by itself, will not sustain his case of good faith under the Ninth Exception. Simple belief or actual belief by itself 1s not enough. The appellant must show that the belief in his ii; npugned .statement. had a rational basis and was not just a blind simple belief. That 1s where the element of due care and attention plays an important role. If it appears that before making the statement the accused did not show due care and attention, that would defeat his plea of good faith. But it must be remembered that good faith does not require logical infallibility. As has held by the Calcutta High Court in the matter of the Petition of Shiba Prasad Pandah('), in dealing with the question of good faith, the proper point to be decided is not whether the allegations put forward by the accused . in support of the defamation are in substance true, but whether he was informed and had good reason after due care and attention to believe that such allegations were true.\n\nAnother aspect of this requirement has been pithily expressed by the Bombay High Court in the case of Emperor v. Abdool Wadood Ahmed('). \"Good faith\", it was observed \"requires not indeed logical infallibility, but due care and attention. But how far erroneous actions or statements are to be imputed to want of due care nnd caution must, in each case, be considered with reference to the general circumstances and the capacity and intelligence of the person whose conduct is in question.\" \"It is only to be expected\", says the judgment, \"that the honest conclusions of a calm and philosophical mind may differ very largely from the honest conclusions of a person excited by sectarian zeal and untrained to habits of precise reasoning. At the same time, it must be borne in mind that good faith in the formation or expression of an opinion, can afford no protection to an imputation which does not purport to be based on that which is the legitimate subject of public comment.\"\n\nThus, it would be clear that in deciding whether an accused person acted in good faith under the Ninth Exception, it is not possible to lay down any rigid rule or test. It would be a question to be considered on the facts and circumstances of each casewhat \"is the nature of the imputation made; under what circum- !ltances did it come to be made; what is the status of the person who makes the imputation; was there any malioe in his mind when he made the said imputation; did he maki; any enquiry before he made it; are there reasons to accept his story that he acted with due care and attention and was satisfied that the impu tation was true? These and other considerations would be relevant in deciding the plea of good faith made by an accused person who claims the benefit of the Ninth Exception. Unfortu-\n\n<'l I.L.R. 4 Cal. 124. (') 1.1 •• R. 31 Rom. 293.\n\nIll\n\nHARBHAJAN SINGH ~- STATE OF PUNJAB (Gajendragadkar, O.J.) 245\n\nnately, the !'earned Judge has rejected the plea of the appellant that he acted in good faith, at least partly 'because he was persuaded to take the view that the evidence led by him did not tend to show that the allegations contained in his impugned statement were true. This naturally has, to some extent, vitiated the validity of his finding.\n\nIt also appears that the learned Judge was inclined to take the view that the elaborate written statement filed by the appellant nearly ten months after he had been exa; nined under s. 342, should not be seriously considered, and that the appellant failed to make out his case of good faith at the early stage of the trial. Indeed. the learned Judge has passed severe strictures against the contents of the written statement and has blamed the appellant's lawyer for having advised him to make these contentions. In support of his finding that written statements of this kind should be discouraged and cannot be seriously taken into account, the learned Judge had referred to two decisions of this Court. One is the case of Tilkeshwar Singh and others v. The State of Bihar('), where this Court was called upon to consider the validity of the argument urged before it that there had not. been a proper examination of the appellants under s. 342, and so, their conviction should be quashed. In rejecting this argument, this Court pofoted out that when the appellants were examined under s. 342, they said they would file written statements, and in the statements subsequently tiled by them, they gave elaborate answers on all the points raised in the prosecution evidence. That is why this Court observed that the appellants had not at all been prejudiced by reason of\n\nthe fact that all the necessary questions were not put to them under s. 342. It is in this connection that this Court incidentally observed that s. 342 contemplates an examination in court and the practice of filing statements is to be deprecated. But that is not a ground for interference unless prejudice is established. The learned Judga has read this observation as laying down a general principl\"' that the filing of a written statement by an accused person should be deprecated and the plea made by him in such a written statement need not, therefore, be seriously considered, because they a, re generally the result of legal advice and are no better than afterthoughts. We do not think that the observation on which the learned Judge has based himself in making this criticism justifies his view. In many cases, the accused person would prefer to file a written statement and give a connected answer to the questions raised by the prosecution evidence.\n\nIndeed, s. 256(2) of the Cr. P. C., provides that if an accused person puts in a written statement, the maistrate shall file it with the record. If the written statement is filed after a long delay and contains pleas which can otherwise be legitimately regarded as matters of after-thought, that no doubt would affect the value of the pleas taken in the\n\n(1) [1955] 2 S.C.R. 1043.\n\nwritten statement. But we do not think that it would be possible to lay down a general rule that the written statement filed by an accused person should not receive the attention of the court because it is likely to have been influenced by legal advice. In our opinion, such a distrust of legal advice would be entirely unjustified.\n\nThe other decision the learned Judge has referred to is in the case of Sidheswar Ganguly v. State of West Bengal('). In that case, this Court has observed that there is no provision in the Code of Criminal Procedure for a written statement of the accused being filed at the Sessions stage, and it is in respect of written statements filed at the Sessions stage that it has made the further comment that in a case tried by the learned Sessions Judge with the help of the Jury, if such a statement is allowed to be used by the Jury, it may throw the door open to irrelevant and inadmissible matterand thus throw an additional burden on the presiding Judge to extricate matter which was admissible from a mass of inadmissible statements which may have been introduced in the writterr statement. In the present case, we are not dealing with statement filed at the Sessions trial properly so called, and so, we need not pause to consider the effect of these observations.\n\nIn the present case, the written statement is an elaborate document and it gives the version of the appellant in great detail.\n\nIn considering the question .as to whether the allegations made in the written statement could be dismissed as no more than an afterthought, we cannot ignore the fact that at the very commencement of the proceedings, the appellant gave a list of 328 witnesses and called for a large number of documents, and as we will presently point out the witnesses whom he examined and some of the documents which he had produced, tend to show that the appellant had received information at the relevant time which supported his plea that the allegations which he was making against the complainant appeared to him to be true; otherwise, it is not easy to understand how the appellant could have given a list of witnesses and called for documents to show either that the allegations made by him were true, or that in any event, in making the said allegations he acted in good faith and for the public good. If the evidence led by the appellant as well as the nature of the crossexamination to which he subjected the complainant and his witnesses are taken into account, it would be difficult, we think to reject his plea of good faith on the ground that the written statement was filed very late and the pleas taken in it are an after-thought. It is because of these infirmities in the judgement under appeal that we allowed Mr. Bhasin to take us through the evidence in this case. We ought to add that Mr. Anand, who appeared for the complainant, fairly conceded that having regard to the fact that the learned Judge had misdirected himself in Jaw, the appellant would be entitled to request this Court to examine the evidence for itself before it accepted the conclusion of the learned Judge on the question of appellant's good faith.\n\n(1)(1958] S.C.R. 749. ·----\n\nHARBHAJAN SINGH v. STAT; E OF PUNJAB (Gajendragadkar, C.J.) 2i.7\n\nBefore we proceed to refer to the broad features of <he evidence, it would be relevant to mention one fact. The appellant was at the relevant time the State Secretary of th~ Punjab Praja\n\nSocialist Party. He is a public worker and belongs to an active political party. He had stated that there was no animus in his mind against the complainant and his father, and that is not seriously disputed, Malice in that sense must, therefore, be\n\neliminated in dealing with the appellant's plea. It is quite true that even if the appellant was not actuated by malice, it would not be possible to sustain his plea of good faith merely because he made the impugned statement as a public worker and he can claim that he was not actuated by personal malice against the complainant.\n\nAbsence of perscnal malice may be a relevant fact in dealing with the appdlant's plea of good faith, but its significance or importance cani1ot be exaggerated. Even in the absence of personal malice, the appellant will have to show that he acted with due care and attention.\n\nTher~ is another fact which must also be borne in mind. The statement which the accused published was in response to the challenge issued by the Government of Punjab. It is not easy to understand why the Punjab Government thought it necessary to issue a Press statement in regard to allegations which were made by the Urdu papers against a Minister's son. But the Punjab Government appears to have entered the arena and issued a challenge to the newspapers in question, and it was in response to this challenge that the appellant published the impugned statement. In this statement, the appellant requested the Punjab Government to appoint an independent Committee of impartial Judges to investigate the matter, and he undertook to prove the truth of his charge if an independent committee was appointed. In that connection, he stated that he wished to bring it to the notice of the Punjab Government that the Chief Minister's rna is being discussed in almost\n\nevery' Punjabi house, but people were afraid of talking about him in public lest they be punished for that. That is the genesis of the impugned statement.\n\nThe two defamatory statements made by the appellant are that the complainant is the person against whom the allegations are made in the Press, and that he is not only a \"leader of smugglers but is responsible for a large number of crimes being committed in the Punjab.\" The statement added that \"because the culprit happens lo be the Chief Minister's son, the cases are always shelved up.\" The question which calls for our decision is: has the appellant shown that he acted in good faith when he made an imputation against the complainant that he was the leader of the smugglers and was responsible for a larue num ber o.f crimes being committed in Punjab?,) In dealing ; ith thi9 question, we ought to take a broad survey of the evidence led by the appellant and the background in which the impugned. statement C'Jme to be made. It appears that before the impugned statement was made, newspapers had been publishing reports against a Minister's son without naming him: Some Members of the Punjab Legislative Assembly had also made. similar statements on tbe floor of the House.\n\nThe appellant examined some witnesses. Jagat Narain, who is an M.L.A., was one of them. He stated that in the year 1956, gold smuggling had increased on the Amritsar border and that he derived his knowledge from the newspapers. He said he had received complaints orally and in writing about the gold smuggling on the border and these suggested the complicity of a Minister's son in smuggling. When he was asked whether he could name tbe informants, he stated that he would not like to name tbem lest they get into trouble ..\n\nSajjan Singh is another witness whom the appellant examined.\n\nHe was tbe Parliamentary Secretary of tbe Praja Socialist Party. He stated tht the appellant had visited Amritsar area in 1957 and he had tdld the appellant about the large scale smuggling. in thei border area. He had also told him that Hazara Singh, Shinghara Singh, Budha Singh and Tara Pandit were smugglers and some of the Members of the Legislative Assembly were helping the smugglers and that the police did not take any action against Hazara Singh because of his connection witb tbe complainant.1.\n\nThis witness had seen Hazara Singh and the complainant moving together in connection witb tbe election campaigns of 1952 and\n\n1957. The election of 1957 took place some time in February, 1957; and so, tbe evidence of this witness shows tbat he had given the information about the complainant's conduct in respect of Hazara Singh and other matters in about February, 1957.\n\nThat takes us to the evidence of Kulwant Rai of village Sirhali, Dfrtrict Amritsar. Against th_is witness, cases were pending under s. 8(1) of the Foreign Exchange Regulation Act, s. 5(3) of the Land Customs Act and s. 19 of the Sea Customs Act It has also been alleged against him that 14.0 tolas of 1'S!Iluggled gold, had been found in his possession. He was also prosecuted by Mr. Dhir, Magistrate, Tarn Taran, under the Indian Arms Act, and prosecutidn under the Indian Opium Act was also pendin& against him. It appears tbat two cases against him w11re withdrawn because a communication dated May 18, 1957, was addressed by the Home Secretary to the Punjab Government to the DistriCt Magistrate Amritsar, directing him to withdraw the two cases pending against him. The letter required the District Magistrate to take action in that behalf immediately. It is remarkable that an affidavit was filed by Kulwant Rai dated May 21, 1957, wherein he stated that the Chief Minister had passed an order on May 7, 1957, for the withdrawal of the cases against hini and that tho Government order in that behalf would be received by the court very soon. This means that Kulwant Rai knew about the decision of the Government to withdraw cases against him even before the said decision was communicated to the District Magis-\n\n' '\n\nHARBHAJAN SINGH v. STATE OF PUNJAB (Gajendragadkar, C.J.) 249\n\ntrate and then to the trial Magistrate. It is also significant that on June 9, 1957, when the proceedings under s. 514 Cr. P. C., were fixed for hearing against Kulwant Rai, he was absent from court and a telegram was received by the Magistrate that Kulwant Rai was ill and his absence should be excused. This telegram was sent not by Kulwant Rai but by the complainant. The complainant no doubt denied that he had sent such a telegram, but the High Court has found that in all probability, the telegram had been sent by the complainant. The complainant also did not admit that he was a friend of Kulwant Rai. There again, the High Court was not prepared to accept the complainant's version.\n\nOn this evidence, it seems plain that the complainant knew Kulwant Rai very well and did not stop short of helping him actively by sending a telegram to the Magistrate to excuse Kulwant Rai's absence on the date of hearing of the case against him. From the evidence of Kulwant Rai whom the appellant had to examine to support his plea of good faith, it is not difficult to infer that Kulwant Rai was charge-sheeted in respect of several offences. and an allegation had been made against him that he was coimected with gold smuggling. If the appellant knew that the complainant was friendly with such a character, would he be justified in claiming that in giving expression to his belief that the complainant was hand in glove with Kulwant Rai, a gold smuggler, he was acting in good faith? That is the question wh!ch has to be answered in the present case.\n\nIn dealing with this aspect of the matter, the learned Judge no doubt found that the material on the record was enough to justify the conclusion that there was friendship between Kulwant Rai and the complainant and that the complainant had sent a telegram to the Magistrate on Kulwant Rai's behalf, but he thought it had not been proved that in fact, Kulwant Rai had been engaged 'in gold smuggl'ng. No doubt, a case was pending against him for gold smuggling; but the learned Judge held 'that the pendency of a criminal case does not necessarily prove that the charge levelled against Kulwant Rai was in fact true. It is this approach which is substantially responsible for the learned Judge's conclusion that good faith is not proved in respect of the allegations made by the appellant that the complainant' was a friend and leader of gold smugglers. The learned Judge overlooked the fact. tijat in dealing with this aspect of the matter, the pertinent enquiry is not whether, in fact, the charge of gold smuggling had been proved against Kulwant Rai and whether it is shown satisfactorily that the complainant was assisting him in that behalf. What is pertinent to enquire is, if the aJ)pellant knew about this evidence at the relevant time and he believed that the complainant was assisting Kulwant Rai in respect of his gold smuggling activities, could he be said to have acted in good faith or not when he published the statement in that behalf?\n\nWe may incidentally point out that we cannot overlook the\n\nfact that the appellant experienced some difficulty in proving his A case in the present proceedings, because witnesses were not willing to come out &nd give evidence, though they may have given that information to the appellant before he made his statement. Take for instance, the case of Hardin Singh of village Patti. It appears that this witness was arrested by the poFce on June 19, 19 59 as a suspect smuggler and he was kept in the lock-up from June 19 to B June 25, 1959 and was thereafter let otf. According to him, he was arrested because he had been summoned as a defence witness in the present case.\n\nLet us then consider the case oi Hazara Singh and the association of the complainant with him. Hazara Singh comes from the same village to which the family of the complainant belongs, and c. yet, he was not prepared even to admi.t that he knew the complainant or his family. The learned Judge realised that Hazara Singh was not prepared to speak the truth at least on some points, and so, he observed that he was willing to accept the appellant's case that the complainant, Sadhu Singh and Major Naurang Singh, Senior Superintendent of Police were on friendly terms. He, how- D ever, thought that it was not clearly shown on the record whether Hazara Singh was entered as a badmash in the police registers and that there was also no conv;.ncing evidence on record to show that Hazara Singh was a gold smuggler. The learned Judge referred to the evidence which showed that the complainant and Hazara Singh were moving together during the election days and were friendly E with each other; but that according to the learned Judge, did not prove the truth of the statement that Hazara Singh was a gold smug- ,' gler and that the compl8 inant was his friend. This approach again is partly based upon importing into the discussion the consideration about the truth of the statement which would be relevant under the First Exception but which is not material under the Ninth Ex- F ception.\n\nIn connection with Hazara Singh, and Kulwant Rai, there are two documents to which our attention has been invited by Mr.\n\nBhasin. These documents show that Kulwant Rai was treated on the Police record as a notorious smuggler and habitual offender, and Hazara Singh was treated as a bad character and his name was G borne oc register No. 10, and his history sheet was opened at No. 1 lOA Basta Alif. There has been some argument before us at the Bar on the question as to whether these two documents are duly proved. Mr. Anand for the complainant has strongly urged that these documents are not proved. and in any event, no reliance Wes placed on them in the courts below. This latter contention is un- H doubtedly true; but the contention that the, documents were not proved in the present case strikes us as none too strong, because these documents have been included in the paper book after the lists made by the respective advocates for the parties were exchanged and the index was finally settled with their approval in the Punjab High Court. The learned Advocate for the State or the complainant did not object to the inclusion of these two documents in\n\nHARBHAJAN SINGH v. STATE OF PU~JAB (Gajendragadkar, C.J.) 251\n\nA the record, and this showed that they were treated as duly forming part of the record. It does appear that Mr. Dhir, the Resident Magistrate, Kaithal (D.W. 27) has produced the whole fi!e of the case in respect of the proceed; ngs taken under s.514. Cr. P.C., and Mr. Bbasin contends that along with the file, the two documents in respect of Kulwant Rai were received. Mr. Anand no doubt sug- B gested that it was not shown under what statutory provision these documents are kept; but since the admissibility of these documents does not appear to have been challenged in the courts below, we think it is too late to raise this techn; cal point at this stage.\n\nHowever, in dealing with the appeal, we are prepared to exclude from our consideration evidence furnished by these two docu- C ments. Even without them, there is enough evidence to show that the complainant was friendly with Kulwant Rai and Hazara Singh, and on the whole, we are ; nclined to take the view that if the appellant knew about the complainant's friendship and active association with these two persons and had other information about the activities of these two persons, it cannot be said that he did not D act in good faith when, in response to the challenge issued by the Punjab Government, he came up with the impugned statement and sent it for publication in the Press.\n\nThen, in regard to the other allegation that the complainant was concerned with the commission of offences in Punjab, we may refer to the evidence led by the appellant to show that in making E this charge, he acted in good faith. The witness to whose evidence reference has been made by Mr. Bbasin in respect of this part of the case is Mr. K. l<.. Dewett, who was the Principal of the Punjab\n\nUniversity College, Hoshiarpur, between June, 1952 and April,\n\n1958. The incident to which this witness deposed took place in\n\n1953. At this time, the complainant had left the college at Hoshiar- F pur_ On January 19, he went to that college to get his ertificate Princ'pal Dewett in his evidence did not support the appellant in his suggc::tion that the complainant had behaved in a criminal way and had threatened to assault the students in the college on that occasion. But the confidential report made by him on January 22, shows that in the witness-box Principal Dewett hesitated to disclose G the whole truth. This report unambiguously ind; cates that the complainant threatened several students with a stick, and it speaks of two or three incidents that took place which created a considerable excitement and commotion among the student community in the college. In this report. the Principal, in fact, describes the s; tuation as very ugly. and be refers to the fact that the students went on H strike and passed resolutions. demanding the rustication of the complainant from the University and also protesting against inaction and partiality of the Princ; pal himself. This confidential report was further enquired into, and the documents in respect of this enquiry are also on the record. The students seem to have demanded that the complainant should be arrested, because they were afraid that he would collect his friends and cause mischief to them. lJltimo1tely, the Vice-Chancellor made a report to the Chancellor\n\nthat having examined the matter, he came to the conclus; on that A the complainant was \"a bit bumptious and throws his weight about in a way which fellow-students find irritating\". He added \"How one wishes that the sons of men holding exalted offices in the State would behave in a way consistent with the dignity of their parents\".\n\nThe learned Judge does not appear to have taken into account these reports, but has substantially relied on the oral evidence of the B Principal himself. Even so, he has recorded his •:onclusion that the evidence shows juvenile indiscipline on the part of the complainant but no juvenile delinquency and certainly no \"crime in the sense of the libellous imputation made\". In dealing with this part of the imputation again, the learned Judge should have asked himself the question as to whether on the material of the kind disclosed by the C confidential report made by the Principal, would a person of ordinary prudence acting bonafide in good faith be not justified in coming to the conclusion that the complainant was not only throwing his weight about, but was also threatening assaults in the college, because. he thought he would be immune from legal process by virtue of his position? The fact that the appellant called for several D documents and gave a list of witnesses as soon as he entered on his defence, shows what he knew at the relevant time, and his plea that he acted in good faith has to be judged on the basis that he made the imputations because he had material of this kind in h; s possession.\n\nIt is .true that the appellant has stated in his written statement that several persons came and reported to him \"against the complainant, and amongst them were included some high police officials as well; but. having regard to the fact that the complainant's father occupied the posit\\on of the Chief Minister of Punjab, they were not willing to come forward and give evidence in court. In fact, the appellant had requested the Punjab Government in his impugned statement to appoint a commission of inquiry and had stated that if a commission of inquiry was appointed, he would prove his charges against the complainant. lt is in the light: of these circumstances, that we have to decide whether the appellant has proved that he acted in good faith or not. In dealing with this question, we canilpt overlook or ignore the probabilities on which the appellant relies, the surrounding circumstances to which he has referred and the actual evidence which he has led.\n\nIncidentally, we; may mention two other documents on which Mr. Bhasin has relied. On February 20, 1957, the complainant wrote a letter to 'Major Sahib' (SSP). In that letter, he told the Major Sahib to grant leave to S. Gurdial Singh No. 1725 posted at Chowki Khosa Burj, and he added that it was very urgent, and asked him to du it immediately. Similarly, on June 3, 1956, the complainant wrote a letter to the Executive Officer, Taran Taran, in which he stated \"our IO /12 trucks loaded with wood will be real)hing Taran Taran one or two dally. Therefore, you please \" · instruct your Moharrir on the Jandiala-Amritsar road that he\n\nI!'\n\n' I\n\nILU\\BHAJAN SINGH V. STATE OF PUNJAB (Gajll'll<lmgadkar, 0.J.) 253\n\nshould not create any obstruction regarding octroi\". It would be noticed that the complainant had:· been writing to Government servants in respect of matters falling within their authority as such servants; and that shows, accordhig to Mr. Bhasin, that the com-·\n\nplainant was throwing his weight about even in matters with which he had no connection at all.\n\nWe have carefully considered the evidence to which our attention was drawn by Mr. Bhasin as well as Mr. Anand, and we have come to the conclusion that the High Court was in error in holding that the appellant had failed to show that he acted in good faith when he published: the impugned statement. As we have al-· ready stated, it has been found oy the High Court and it is not disputed before us that the publication pf the impugned statement was for the public good; and so, our conclusion is that the appellant is entitled to claim the protection of the Ninth Exception.\n\nBefore we part with this appeal, we ought to add that thi! matter came before this Court for hearing on the 1st September, 1964, and an interlocutory judgment was delivered: by which certain documents were called for. On that occasion, Mr. Bhasin had pressed before this Court h; s contention that the trial Judge was in error in not calling for certain documents which the appellant wanted to rely on, and in upholding the plea of privilege made by the State Govt. in respect of certain other documents. We wanted to satisfy ourselves whether the documents on which Mr. Bhasin wanted to rely were relevant and whether the plea of privilege claimed by the State was justified. Some of these documents have been received by th; s Court in pursuance of our interlocutory judgment. But we do not think it necessary to consider this matter, because the documents which Mr. Bhasin wanted to be produced or proved might at best, if they are 3dmitted:, be of help to him to show that the allegations made by the appellant are true. That however is a plea which falls under the First Exception and since the appellant did not claim the benefit of that Except;.on in the High Court, we do not think it would be open to the appellant to press his point that we should examine the question as to whether the trial Judge erred in not al:owing the appellant to bring these documents on the record. That is why we did: not look at these documents and have not considered the question raised by Mr. Bhasin at the time when the interlocutory judgment was del; vered in this case.\n\nIn other words, the appellant is not allowed to raise his plea that the allegations made by him in the impugned statement are true.\n\nEven so, in view of our conclusion that the appellant has succeeded in showing that he is entitled to the protection of the Ninth Exception to s. 499, the appeal must be allowed: and the order of conviction and sentence passed against the appellant set aside. If the fine imposed on the appellant has been paid by him, the same should be refunded to him.\n\nA ppeol aitawed.", "total_entities": 145, "entities": [{"text": "HARBHAJAN SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "HARBHAJAN SINGH", "offset_not_found": false}}, {"text": "STATE OF PUNJAB", "label": "RESPONDENT", "start_char": 20, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB", "offset_not_found": false}}, {"text": "March 2, 1965", "label": "DATE", "start_char": 36, "end_char": 49, "source": "ner", "metadata": {"in_sentence": "HARBHAJAN SINGH v.\n\nSTATE OF PUNJAB March 2, 1965\n\n(P. B. GAJENDRAGADKAR, C.J., RAGHUBAR DAYAL AND V. RAMA-\n\nSWAMI, JJ.]"}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 52, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL", "label": "JUDGE", "start_char": 80, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 121, "end_char": 138, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 499", "label": "PROVISION", "start_char": 156, "end_char": 162, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Government of Punjab", "label": "ORG", "start_char": 195, "end_char": 215, "source": "ner", "metadata": {"in_sentence": "The Government of Punjab issued a press note stating that certain dailies in the States were publishing false reports alleging the complicity of a Nlinister's son in smuggling, that the allegations vvere made with a view to malign the Government, and, that the name of the son should be openly mentioned."}}, {"text": "Ch'ef Minder", "label": "OTHER_PERSON", "start_char": 843, "end_char": 855, "source": "ner", "metadata": {"in_sentence": "The Ch'ef Minder's\n\nson then filed a complaint of."}}, {"text": "s. 342", "label": "PROVISION", "start_char": 1061, "end_char": 1067, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 1069, "end_char": 1092, "source": "regex", "metadata": {}}, {"text": "s. 449", "label": "PROVISION", "start_char": 1226, "end_char": 1232, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Indian Penal Code, 1860", "label": "STATUTE", "start_char": 1240, "end_char": 1263, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 105", "label": "PROVISION", "start_char": 2687, "end_char": 2693, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPREME COURT REPORTS (1965] 3 S.C.Jlt", "label": "COURT", "start_char": 3311, "end_char": 3349, "source": "ner", "metadata": {"in_sentence": "(ii) While dealing with the appellant's claim for protection under the Ninth Exception, the High Court had confused the requirements\n\nSUPREME COURT REPORTS (1965] 3 S.C.Jlt\n\nof the First Exception with those of the Ninth."}}, {"text": "T. R. Bhasin", "label": "LAWYER", "start_char": 5587, "end_char": 5599, "source": "ner", "metadata": {"in_sentence": "T. R. Bhasin, S. C. Malik, Sushma Malik and Ram Behja Lal Malik, for the appellant.", "canonical_name": "T. R. Bhasin"}}, {"text": "S. C. Malik", "label": "LAWYER", "start_char": 5601, "end_char": 5612, "source": "ner", "metadata": {"in_sentence": "T. R. Bhasin, S. C. Malik, Sushma Malik and Ram Behja Lal Malik, for the appellant."}}, {"text": "Sushma Malik", "label": "LAWYER", "start_char": 5614, "end_char": 5626, "source": "ner", "metadata": {"in_sentence": "T. R. Bhasin, S. C. Malik, Sushma Malik and Ram Behja Lal Malik, for the appellant."}}, {"text": "Ram Behja Lal Malik", "label": "LAWYER", "start_char": 5631, "end_char": 5650, "source": "ner", "metadata": {"in_sentence": "T. R. Bhasin, S. C. Malik, Sushma Malik and Ram Behja Lal Malik, for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 5672, "end_char": 5686, "source": "ner", "metadata": {"in_sentence": "R. N. Sachthey, for respondent No."}}, {"text": "Ram Lal Anand", "label": "LAWYER", "start_char": 5711, "end_char": 5724, "source": "ner", "metadata": {"in_sentence": "I.\n\nRam Lal Anand, Ajit Singh Johar, S. K. Mehta, and K. L.\n\nMehta, for respondent No."}}, {"text": "Ajit Singh Johar", "label": "LAWYER", "start_char": 5726, "end_char": 5742, "source": "ner", "metadata": {"in_sentence": "I.\n\nRam Lal Anand, Ajit Singh Johar, S. K. Mehta, and K. L.\n\nMehta, for respondent No."}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 5744, "end_char": 5755, "source": "ner", "metadata": {"in_sentence": "I.\n\nRam Lal Anand, Ajit Singh Johar, S. K. Mehta, and K. L.\n\nMehta, for respondent No."}}, {"text": "K. L.\n\nMehta", "label": "LAWYER", "start_char": 5761, "end_char": 5773, "source": "ner", "metadata": {"in_sentence": "I.\n\nRam Lal Anand, Ajit Singh Johar, S. K. Mehta, and K. L.\n\nMehta, for respondent No."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 5841, "end_char": 5855, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Gajendragadkar, C. J. By this appeal, which has been brought to this Ccurt by special leave, the appellant Harbhajan Singh challenges the correctness of his conviction for an offence under s. 500 of the Indian Penal Code, and the sentence imposed on him for tlie said offence."}}, {"text": "Harbhajan Singh", "label": "PETITIONER", "start_char": 5948, "end_char": 5963, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Gajendragadkar, C. J. By this appeal, which has been brought to this Ccurt by special leave, the appellant Harbhajan Singh challenges the correctness of his conviction for an offence under s. 500 of the Indian Penal Code, and the sentence imposed on him for tlie said offence.", "canonical_name": "HARBHAJAN SINGH"}}, {"text": "s. 500", "label": "PROVISION", "start_char": 6030, "end_char": 6036, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 6044, "end_char": 6061, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Surinder Singh Kairon", "label": "OTHER_PERSON", "start_char": 6202, "end_char": 6223, "source": "ner", "metadata": {"in_sentence": "The criminal proceedings against the appellant were started on a complaint filed by Surinder Singh Kairon, son of S. Partap Singh Kairon, who was at the relevant time the Chief Minister of the State of Punjab.", "canonical_name": "Surinder Singh Kairon"}}, {"text": "S. Partap Singh Kairon", "label": "OTHER_PERSON", "start_char": 6232, "end_char": 6254, "source": "ner", "metadata": {"in_sentence": "The criminal proceedings against the appellant were started on a complaint filed by Surinder Singh Kairon, son of S. Partap Singh Kairon, who was at the relevant time the Chief Minister of the State of Punjab."}}, {"text": "State of Punjab", "label": "GPE", "start_char": 6311, "end_char": 6326, "source": "ner", "metadata": {"in_sentence": "The criminal proceedings against the appellant were started on a complaint filed by Surinder Singh Kairon, son of S. Partap Singh Kairon, who was at the relevant time the Chief Minister of the State of Punjab."}}, {"text": "Surinder Singh", "label": "OTHER_PERSON", "start_char": 6362, "end_char": 6376, "source": "ner", "metadata": {"in_sentence": "In his complaint, the complainant Surinder Singh alleged that the appellant had published in the Press a statement against him which was highly defamatory of him.", "canonical_name": "Surinder Singh Kairon"}}, {"text": "Bombay", "label": "GPE", "start_char": 6635, "end_char": 6641, "source": "ner", "metadata": {"in_sentence": "The said statement was published in the \"Blitz\",\n\nHARBHAJAN SINGH v. STATE OF PUNJAB (Gajendragadk \"· C.J.)\n\n23T\n\nwhich is a weekly magazine of Bombay, on July 23, 1957."}}, {"text": "July 23, 1957", "label": "DATE", "start_char": 6646, "end_char": 6659, "source": "ner", "metadata": {"in_sentence": "The said statement was published in the \"Blitz\",\n\nHARBHAJAN SINGH v. STATE OF PUNJAB (Gajendragadk \"· C.J.)\n\n23T\n\nwhich is a weekly magazine of Bombay, on July 23, 1957."}}, {"text": "s. 500", "label": "PROVISION", "start_char": 6915, "end_char": 6921, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6923, "end_char": 6928, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "July 22/23, 1957", "label": "DATE", "start_char": 6950, "end_char": 6966, "source": "ner", "metadata": {"in_sentence": "the appeJ. lant had rendered himself liable to be punished under s. 500, I.P.C.\n\nIt appears that on July 22/23, 1957, the Punjab Government issued a Press note in which it was averred that certain Urdu Dailies from J ullundur were indulging in mischief and false pro paganda, alleging complicity of a Minister's son in smuggling on the border."}}, {"text": "Punjab Government", "label": "ORG", "start_char": 6972, "end_char": 6989, "source": "ner", "metadata": {"in_sentence": "the appeJ. lant had rendered himself liable to be punished under s. 500, I.P.C.\n\nIt appears that on July 22/23, 1957, the Punjab Government issued a Press note in which it was averred that certain Urdu Dailies from J ullundur were indulging in mischief and false pro paganda, alleging complicity of a Minister's son in smuggling on the border."}}, {"text": "J ullundur", "label": "GPE", "start_char": 7065, "end_char": 7075, "source": "ner", "metadata": {"in_sentence": "the appeJ. lant had rendered himself liable to be punished under s. 500, I.P.C.\n\nIt appears that on July 22/23, 1957, the Punjab Government issued a Press note in which it was averred that certain Urdu Dailies from J ullundur were indulging in mischief and false pro paganda, alleging complicity of a Minister's son in smuggling on the border."}}, {"text": "Punjab Government Press Ncte", "label": "ORG", "start_char": 8105, "end_char": 8133, "source": "ner", "metadata": {"in_sentence": "It was in response to the challenge thus issued by the Punjab Government in its Press note that the appellant published the impugned statement which reads:\n\n\"My attention has been drawn to a Punjab Government Press Ncte categorically denying the complicity of a Minister's son in smuggling."}}, {"text": "Kairon", "label": "OTHER_PERSON", "start_char": 8638, "end_char": 8644, "source": "ner", "metadata": {"in_sentence": "I don't know whether the newspapers concerned will take up this challenge of the Punjab Government or not, but as one of those who have been naming that son of the Minister as one of the leaders of the smugglers from Public platform, I hereby name that son as Surinder Singh ; Kairon son of S. Partap Singh Kairon, Chief Minister."}}, {"text": "Punjab", "label": "GPE", "start_char": 8938, "end_char": 8944, "source": "ner", "metadata": {"in_sentence": "I further allege that the son of our Chief Minister is not only a leader of smugglers but is responsible for a large number of crimes being committed in the Punjab."}}, {"text": "Ajaib Singh", "label": "OTHER_PERSON", "start_char": 9753, "end_char": 9764, "source": "ner", "metadata": {"in_sentence": "After this statement was published, Mr. Ajaib Singh, Senior Superintendent of Police, Amritsar, issued a statement on the 25th July, 1957, which was published in the \"Tribune\" on the 26th July."}}, {"text": "Amritsar", "label": "GPE", "start_char": 9799, "end_char": 9807, "source": "ner", "metadata": {"in_sentence": "After this statement was published, Mr. Ajaib Singh, Senior Superintendent of Police, Amritsar, issued a statement on the 25th July, 1957, which was published in the \"Tribune\" on the 26th July."}}, {"text": "25th July, 1957", "label": "DATE", "start_char": 9835, "end_char": 9850, "source": "ner", "metadata": {"in_sentence": "After this statement was published, Mr. Ajaib Singh, Senior Superintendent of Police, Amritsar, issued a statement on the 25th July, 1957, which was published in the \"Tribune\" on the 26th July."}}, {"text": "July 27, 1957", "label": "DATE", "start_char": 10283, "end_char": 10296, "source": "ner", "metadata": {"in_sentence": "ant issued a rejoinder which was published in the \"Hind\n\nSamachar\", which is an Urdu Daily cf Jul!undur, on July 27, 1957."}}, {"text": "August 17. !", "label": "DATE", "start_char": 10366, "end_char": 10378, "source": "ner", "metadata": {"in_sentence": "Then, followed the complaint which was filed by the complainant on August 17. !"}}, {"text": "Magistrate, First Class, Tarn Taran", "label": "COURT", "start_char": 10505, "end_char": 10540, "source": "ner", "metadata": {"in_sentence": "The complaint was filed in the court of the Magistrate, First Class, Tarn Taran."}}, {"text": "s. 527", "label": "PROVISION", "start_char": 10591, "end_char": 10597, "source": "regex", "metadata": {"statute": null}}, {"text": "October 4, 1957", "label": "DATE", "start_char": 10744, "end_char": 10759, "source": "ner", "metadata": {"in_sentence": "This Court directed on October 4, 1957, that the case in question hould be remitted to the Punjab High Court so that it should be transferred by the said High Court from the court of the Magistrate at :rarn Taran to a court of Sessions in Delhi."}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 10812, "end_char": 10829, "source": "ner", "metadata": {"in_sentence": "This Court directed on October 4, 1957, that the case in question hould be remitted to the Punjab High Court so that it should be transferred by the said High Court from the court of the Magistrate at :rarn Taran to a court of Sessions in Delhi."}}, {"text": "Delhi", "label": "GPE", "start_char": 10960, "end_char": 10965, "source": "ner", "metadata": {"in_sentence": "This Court directed on October 4, 1957, that the case in question hould be remitted to the Punjab High Court so that it should be transferred by the said High Court from the court of the Magistrate at :rarn Taran to a court of Sessions in Delhi."}}, {"text": "Additional Sessions Judge, Delhi", "label": "COURT", "start_char": 11024, "end_char": 11056, "source": "ner", "metadata": {"in_sentence": "That is how the case was transferred to the court of the Additional Sessions Judge, Delhi, and was tried by him."}}, {"text": "s. 342", "label": "PROVISION", "start_char": 11484, "end_char": 11490, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 499", "label": "PROVISION", "start_char": 11951, "end_char": 11957, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 11959, "end_char": 11962, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 499", "label": "PROVISION", "start_char": 12155, "end_char": 12161, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 12163, "end_char": 12166, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 499", "label": "PROVISION", "start_char": 13777, "end_char": 13783, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 13785, "end_char": 13788, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 500", "label": "PROVISION", "start_char": 16209, "end_char": 16215, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 16217, "end_char": 16220, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 16484, "end_char": 16492, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "Section 499", "label": "PROVISION", "start_char": 16723, "end_char": 16734, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "s. 499", "label": "PROVISION", "start_char": 17077, "end_char": 17083, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "T. R. Bhasin", "label": "LAWYER", "start_char": 17868, "end_char": 17880, "source": "ner", "metadata": {"in_sentence": "This position is not disputed by Mr. T. R. Bhasin who appears for the appellant.", "canonical_name": "T. R. Bhasin"}}, {"text": "Bhasin", "label": "OTHER_PERSON", "start_char": 17919, "end_char": 17925, "source": "ner", "metadata": {"in_sentence": "Bhasin, however, contends that in appreciating the evidence of the appellant and his arguments in respect of his good faith, the High Court has•dearly misdirected itself, because it has.", "canonical_name": "Bhasi,1"}}, {"text": "England", "label": "GPE", "start_char": 18503, "end_char": 18510, "source": "ner", "metadata": {"in_sentence": "The HighTourt has added that the accused pleading justification virtually becomes the accuser, and that is why the burden has been placed by law upon him both in England and in India."}}, {"text": "India", "label": "GPE", "start_char": 18518, "end_char": 18523, "source": "ner", "metadata": {"in_sentence": "The HighTourt has added that the accused pleading justification virtually becomes the accuser, and that is why the burden has been placed by law upon him both in England and in India."}}, {"text": ".A.\n\nHARBHAJAN BI:<(JH ,., STAT!•' OF PC!'.fAB (G.tjendr g .dklr", "label": "JUDGE", "start_char": 18779, "end_char": 18843, "source": "ner", "metadata": {"in_sentence": "The learned Judge of the High Court made his point still clearer with the observation that in cases of criminal defamation, an accused has not only to justify the whole of his libel, but the plea taken has to be proved as strictly as if the complainant\n\n.A.\n\nHARBHAJAN BI:<(JH ,.,"}}, {"text": "Bhasi,1", "label": "OTHER_PERSON", "start_char": 19175, "end_char": 19182, "source": "ner", "metadata": {"in_sentence": "In cur opinion, Mr. Bhasi,1 is right.", "canonical_name": "Bhasi,1"}}, {"text": "s. 105", "label": "PROVISION", "start_char": 19215, "end_char": 19221, "source": "regex", "metadata": {"statute": null}}, {"text": "Phipson", "label": "OTHER_PERSON", "start_char": 20749, "end_char": 20756, "source": "ner", "metadata": {"in_sentence": "As Phipson has observed, when the burd.:n of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; it is sufficient if he succeeds in proving a preponderance of probability, for then the burden is shifted to the prosecution which has still to discharge its original onus that never shifts, i.e., that f establishing, on the whole case, guilt beyond a reasonable doubt."}}, {"text": "Viscount Sankey", "label": "OTHER_PERSON", "start_char": 21370, "end_char": 21385, "source": "ner", "metadata": {"in_sentence": "It will be recalled that it was with a view to emphasising the fundamental doctrine of criminal Jaw that the onus to prove its\n\ncas~ lies on the prosecution, that Viscount Sankey in W oolmington\n\nv. Director of Public Prosecutions(') observed that \"no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.\""}}, {"text": "Humphreys", "label": "JUDGE", "start_char": 22180, "end_char": 22189, "source": "ner", "metadata": {"in_sentence": "In this connection, it may be relevant to refer to the observations made by Humphreys J. in R. v. Carr-Braint('): \"Lord Hailsham, L. C., [in Sodem® v. R. [ 19361- 2 All E.R. 1138] was in agreement with the decision of the majority."}}, {"text": "Hailsham", "label": "JUDGE", "start_char": 22224, "end_char": 22232, "source": "ner", "metadata": {"in_sentence": "In this connection, it may be relevant to refer to the observations made by Humphreys J. in R. v. Carr-Braint('): \"Lord Hailsham, L. C., [in Sodem® v. R. [ 19361- 2 All E.R. 1138] was in agreement with the decision of the majority."}}, {"text": "Supreme Court of Canada", "label": "COURT", "start_char": 22343, "end_char": 22366, "source": "ner", "metadata": {"in_sentence": "of the Supreme Court of Canada, in R. v. Clark [(1921) 61 S.C.R. 608] where Duff J., in the course of his judgment, expressed the view that the necessity for excluding doubt contained in the rule as to the onus upon the prosecution in criminal cases might be regarded as an exception founded upon considerations of public policy."}}, {"text": "(1921) 61 S.C.R. 608", "label": "CASE_CITATION", "start_char": 22384, "end_char": 22404, "source": "regex", "metadata": {}}, {"text": "Duff", "label": "JUDGE", "start_char": 22412, "end_char": 22416, "source": "ner", "metadata": {"in_sentence": "of the Supreme Court of Canada, in R. v. Clark [(1921) 61 S.C.R. 608] where Duff J., in the course of his judgment, expressed the view that the necessity for excluding doubt contained in the rule as to the onus upon the prosecution in criminal cases might be regarded as an exception founded upon considerations of public policy."}}, {"text": "This charge was laid under the Prevention of Corruption Act, 1916", "label": "STATUTE", "start_char": 23116, "end_char": 23181, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2", "label": "PROVISION", "start_char": 23216, "end_char": 23220, "source": "regex", "metadata": {"linked_statute_text": "This charge was laid under the Prevention of Corruption Act, 1916", "statute": "This charge was laid under the Prevention of Corruption Act, 1916"}}, {"text": "Prevention of Corruption Act, 1916", "label": "STATUTE", "start_char": 23228, "end_char": 23262, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bhasm", "label": "OTHER_PERSON", "start_char": 25163, "end_char": 25168, "source": "ner", "metadata": {"in_sentence": "We are, therefore, satisfied that Mr. Bhasm 1s entitled to contend that the learned Judge has misdirected himself in law in dealing with the question about the ature and scop~ of the ous of proof which the appellant had to discharge m seekmg protectlrln of Exception Nine."}}, {"text": "s. 499", "label": "PROVISION", "start_char": 25712, "end_char": 25718, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 52", "label": "PROVISION", "start_char": 27448, "end_char": 27453, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 52", "label": "PROVISION", "start_char": 27482, "end_char": 27487, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 27629, "end_char": 27648, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 27853, "end_char": 27872, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 52", "label": "PROVISION", "start_char": 27974, "end_char": 27979, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 28905, "end_char": 28924, "source": "ner", "metadata": {"in_sentence": "As has held by the Calcutta High Court in the matter of the Petition of Shiba Prasad Pandah('), in dealing with the question of good faith, the proper point to be decided is not whether the allegations put forward by the accused ."}}, {"text": "Shiba Prasad Pandah", "label": "OTHER_PERSON", "start_char": 28958, "end_char": 28977, "source": "ner", "metadata": {"in_sentence": "As has held by the Calcutta High Court in the matter of the Petition of Shiba Prasad Pandah('), in dealing with the question of good faith, the proper point to be decided is not whether the allegations put forward by the accused ."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 29360, "end_char": 29377, "source": "ner", "metadata": {"in_sentence": "Another aspect of this requirement has been pithily expressed by the Bombay High Court in the case of Emperor v. Abdool Wadood Ahmed('). \""}}, {"text": "HARBHAJAN SINGH", "label": "JUDGE", "start_char": 31140, "end_char": 31155, "source": "ner", "metadata": {"in_sentence": "Ill\n\nHARBHAJAN SINGH ~- STATE OF PUNJAB (Gajendragadkar, O.J.) 245\n\nnately, the !'", "canonical_name": "HARBHAJAN SINGH"}}, {"text": "s. 342", "label": "PROVISION", "start_char": 31732, "end_char": 31738, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 342", "label": "PROVISION", "start_char": 32488, "end_char": 32494, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 342", "label": "PROVISION", "start_char": 32636, "end_char": 32642, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 342", "label": "PROVISION", "start_char": 32988, "end_char": 32994, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 342", "label": "PROVISION", "start_char": 33064, "end_char": 33070, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 256(2)", "label": "PROVISION", "start_char": 33888, "end_char": 33897, "source": "regex", "metadata": {"statute": null}}, {"text": "[1955] 2 S.C.R. 1043", "label": "CASE_CITATION", "start_char": 34239, "end_char": 34259, "source": "regex", "metadata": {}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 34785, "end_char": 34811, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Anand", "label": "OTHER_PERSON", "start_char": 37087, "end_char": 37092, "source": "ner", "metadata": {"in_sentence": "We ought to add that Mr. Anand, who appeared for the complainant, fairly conceded that having regard to the fact that the learned Judge had misdirected himself in Jaw, the appellant would be entitled to request this Court to examine the evidence for itself before it accepted the conclusion of the learned Judge on the question of appellant's good faith."}}, {"text": "Punjab Legislative Assembly", "label": "ORG", "start_char": 40666, "end_char": 40693, "source": "ner", "metadata": {"in_sentence": "It appears that before the impugned statement was made, newspapers had been publishing reports against a Minister's son without naming him: Some Members of the Punjab Legislative Assembly had also made."}}, {"text": "Jagat Narain", "label": "WITNESS", "start_char": 40795, "end_char": 40807, "source": "ner", "metadata": {"in_sentence": "Jagat Narain, who is an M.L.A., was one of them."}}, {"text": "Sajjan Singh", "label": "WITNESS", "start_char": 41282, "end_char": 41294, "source": "ner", "metadata": {"in_sentence": "When he was asked whether he could name tbe informants, he stated that he would not like to name tbem lest they get into trouble ..\n\nSajjan Singh is another witness whom the appellant examined."}}, {"text": "Praja Socialist Party", "label": "ORG", "start_char": 41386, "end_char": 41407, "source": "ner", "metadata": {"in_sentence": "He was tbe Parliamentary Secretary of tbe Praja Socialist Party."}}, {"text": "Hazara Singh", "label": "OTHER_PERSON", "start_char": 41581, "end_char": 41593, "source": "ner", "metadata": {"in_sentence": "He had also told him that Hazara Singh, Shinghara Singh, Budha Singh and Tara Pandit were smugglers and some of the Members of the Legislative Assembly were helping the smugglers and that the police did not take any action against Hazara Singh because of his connection witb tbe complainant.1."}}, {"text": "Shinghara Singh", "label": "OTHER_PERSON", "start_char": 41595, "end_char": 41610, "source": "ner", "metadata": {"in_sentence": "He had also told him that Hazara Singh, Shinghara Singh, Budha Singh and Tara Pandit were smugglers and some of the Members of the Legislative Assembly were helping the smugglers and that the police did not take any action against Hazara Singh because of his connection witb tbe complainant.1."}}, {"text": "Budha Singh", "label": "OTHER_PERSON", "start_char": 41612, "end_char": 41623, "source": "ner", "metadata": {"in_sentence": "He had also told him that Hazara Singh, Shinghara Singh, Budha Singh and Tara Pandit were smugglers and some of the Members of the Legislative Assembly were helping the smugglers and that the police did not take any action against Hazara Singh because of his connection witb tbe complainant.1.", "canonical_name": "Budha Singh"}}, {"text": "Tara Pandit", "label": "OTHER_PERSON", "start_char": 41628, "end_char": 41639, "source": "ner", "metadata": {"in_sentence": "He had also told him that Hazara Singh, Shinghara Singh, Budha Singh and Tara Pandit were smugglers and some of the Members of the Legislative Assembly were helping the smugglers and that the police did not take any action against Hazara Singh because of his connection witb tbe complainant.1."}}, {"text": "Kulwant Rai", "label": "WITNESS", "start_char": 42256, "end_char": 42267, "source": "ner", "metadata": {"in_sentence": "That takes us to the evidence of Kulwant Rai of village Sirhali, Dfrtrict Amritsar."}}, {"text": "Sirhali", "label": "GPE", "start_char": 42279, "end_char": 42286, "source": "ner", "metadata": {"in_sentence": "That takes us to the evidence of Kulwant Rai of village Sirhali, Dfrtrict Amritsar."}}, {"text": "s. 8(1)", "label": "PROVISION", "start_char": 42355, "end_char": 42362, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(3)", "label": "PROVISION", "start_char": 42403, "end_char": 42410, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 42423, "end_char": 42434, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 19", "label": "PROVISION", "start_char": 42439, "end_char": 42444, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 42456, "end_char": 42467, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Dhir", "label": "JUDGE", "start_char": 42607, "end_char": 42611, "source": "ner", "metadata": {"in_sentence": "He was also prosecuted by Mr. Dhir, Magistrate, Tarn Taran, under the Indian Arms Act, and prosecutidn under the Indian Opium Act was also pendin& against him."}}, {"text": "Arms Act", "label": "STATUTE", "start_char": 42654, "end_char": 42662, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "May 18, 1957", "label": "DATE", "start_char": 42821, "end_char": 42833, "source": "ner", "metadata": {"in_sentence": "It appears tbat two cases against him w11re withdrawn because a communication dated May 18, 1957, was addressed by the Home Secretary to the Punjab Government to the DistriCt Magistrate Amritsar, directing him to withdraw the two cases pending against him."}}, {"text": "DistriCt Magistrate Amritsar", "label": "COURT", "start_char": 42903, "end_char": 42931, "source": "ner", "metadata": {"in_sentence": "It appears tbat two cases against him w11re withdrawn because a communication dated May 18, 1957, was addressed by the Home Secretary to the Punjab Government to the DistriCt Magistrate Amritsar, directing him to withdraw the two cases pending against him."}}, {"text": "Kulwant Rai", "label": "OTHER_PERSON", "start_char": 43129, "end_char": 43140, "source": "ner", "metadata": {"in_sentence": "It is remarkable that an affidavit was filed by Kulwant Rai dated May 21, 1957, wherein he stated that the Chief Minister had passed an order on May 7, 1957, for the withdrawal of the cases against hini and that tho Government order in that behalf would be received by the court very soon."}}, {"text": "May 21, 1957", "label": "DATE", "start_char": 43147, "end_char": 43159, "source": "ner", "metadata": {"in_sentence": "It is remarkable that an affidavit was filed by Kulwant Rai dated May 21, 1957, wherein he stated that the Chief Minister had passed an order on May 7, 1957, for the withdrawal of the cases against hini and that tho Government order in that behalf would be received by the court very soon."}}, {"text": "May 7, 1957", "label": "DATE", "start_char": 43226, "end_char": 43237, "source": "ner", "metadata": {"in_sentence": "It is remarkable that an affidavit was filed by Kulwant Rai dated May 21, 1957, wherein he stated that the Chief Minister had passed an order on May 7, 1957, for the withdrawal of the cases against hini and that tho Government order in that behalf would be received by the court very soon."}}, {"text": "June 9, 1957", "label": "DATE", "start_char": 43681, "end_char": 43693, "source": "ner", "metadata": {"in_sentence": "It is also significant that on June 9, 1957, when the proceedings under s. 514 Cr."}}, {"text": "s. 514", "label": "PROVISION", "start_char": 43722, "end_char": 43728, "source": "regex", "metadata": {"statute": null}}, {"text": "Hardin Singh", "label": "OTHER_PERSON", "start_char": 46963, "end_char": 46975, "source": "ner", "metadata": {"in_sentence": "Take for instance, the case of Hardin Singh of village Patti."}}, {"text": "Patti", "label": "GPE", "start_char": 46987, "end_char": 46992, "source": "ner", "metadata": {"in_sentence": "Take for instance, the case of Hardin Singh of village Patti."}}, {"text": "June 19, 19 59", "label": "DATE", "start_char": 47052, "end_char": 47066, "source": "ner", "metadata": {"in_sentence": "It appears that this witness was arrested by the poFce on June 19, 19 59 as a suspect smuggler and he was kept in the lock-up from June 19 to B June 25, 1959 and was thereafter let otf."}}, {"text": "June 19 to B June 25, 1959", "label": "DATE", "start_char": 47125, "end_char": 47151, "source": "ner", "metadata": {"in_sentence": "It appears that this witness was arrested by the poFce on June 19, 19 59 as a suspect smuggler and he was kept in the lock-up from June 19 to B June 25, 1959 and was thereafter let otf."}}, {"text": "Sadhu Singh", "label": "OTHER_PERSON", "start_char": 47760, "end_char": 47771, "source": "ner", "metadata": {"in_sentence": "The learned Judge realised that Hazara Singh was not prepared to speak the truth at least on some points, and so, he observed that he was willing to accept the appellant's case that the complainant, Sadhu Singh and Major Naurang Singh, Senior Superintendent of Police were on friendly terms.", "canonical_name": "Budha Singh"}}, {"text": "Naurang Singh", "label": "OTHER_PERSON", "start_char": 47782, "end_char": 47795, "source": "ner", "metadata": {"in_sentence": "The learned Judge realised that Hazara Singh was not prepared to speak the truth at least on some points, and so, he observed that he was willing to accept the appellant's case that the complainant, Sadhu Singh and Major Naurang Singh, Senior Superintendent of Police were on friendly terms."}}, {"text": "Kaithal", "label": "GPE", "start_char": 50038, "end_char": 50045, "source": "ner", "metadata": {"in_sentence": "It does appear that Mr. Dhir, the Resident Magistrate, Kaithal (D.W. 27) has produced the whole fi!e of the case in respect of the proceed; ngs taken under s.514."}}, {"text": "s.514", "label": "PROVISION", "start_char": 50139, "end_char": 50144, "source": "regex", "metadata": {"statute": null}}, {"text": "Bbasin", "label": "OTHER_PERSON", "start_char": 50164, "end_char": 50170, "source": "ner", "metadata": {"in_sentence": "P.C., and Mr. Bbasin contends that along with the file, the two documents in respect of Kulwant Rai were received.", "canonical_name": "Bhasi,1"}}, {"text": "K. l<.. Dewett", "label": "WITNESS", "start_char": 51585, "end_char": 51599, "source": "ner", "metadata": {"in_sentence": "The witness to whose evidence reference has been made by Mr. Bbasin in respect of this part of the case is Mr. K. l<.. Dewett, who was the Principal of the Punjab\n\nUniversity College, Hoshiarpur, between June, 1952 and April,\n\n1958."}}, {"text": "Punjab\n\nUniversity College, Hoshiarpur", "label": "ORG", "start_char": 51630, "end_char": 51668, "source": "ner", "metadata": {"in_sentence": "The witness to whose evidence reference has been made by Mr. Bbasin in respect of this part of the case is Mr. K. l<.. Dewett, who was the Principal of the Punjab\n\nUniversity College, Hoshiarpur, between June, 1952 and April,\n\n1958."}}, {"text": "Dewett", "label": "OTHER_PERSON", "start_char": 52206, "end_char": 52212, "source": "ner", "metadata": {"in_sentence": "But the confidential report made by him on January 22, shows that in the witness-box Principal Dewett hesitated to disclose G the whole truth."}}, {"text": "February 20, 1957", "label": "DATE", "start_char": 55768, "end_char": 55785, "source": "ner", "metadata": {"in_sentence": "On February 20, 1957, the complainant wrote a letter to 'Major Sahib' (SSP)."}}, {"text": "Sahib", "label": "OTHER_PERSON", "start_char": 55828, "end_char": 55833, "source": "ner", "metadata": {"in_sentence": "On February 20, 1957, the complainant wrote a letter to 'Major Sahib' (SSP)."}}, {"text": "S. Gurdial Singh", "label": "OTHER_PERSON", "start_char": 55900, "end_char": 55916, "source": "ner", "metadata": {"in_sentence": "In that letter, he told the Major Sahib to grant leave to S. Gurdial Singh No."}}, {"text": "June 3, 1956", "label": "DATE", "start_char": 56043, "end_char": 56055, "source": "ner", "metadata": {"in_sentence": "Similarly, on June 3, 1956, the complainant wrote a letter to the Executive Officer, Taran Taran, in which he stated \"our IO /12 trucks loaded with wood will be real)hing Taran Taran one or two dally."}}, {"text": "Taran Taran", "label": "OTHER_PERSON", "start_char": 56114, "end_char": 56125, "source": "ner", "metadata": {"in_sentence": "Similarly, on June 3, 1956, the complainant wrote a letter to the Executive Officer, Taran Taran, in which he stated \"our IO /12 trucks loaded with wood will be real)hing Taran Taran one or two dally."}}, {"text": "1st September, 1964", "label": "DATE", "start_char": 57439, "end_char": 57458, "source": "ner", "metadata": {"in_sentence": "matter came before this Court for hearing on the 1st September, 1964, and an interlocutory judgment was delivered: by which certain documents were called for."}}, {"text": "s. 499", "label": "PROVISION", "start_char": 59172, "end_char": 59178, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_254_275_EN", "year": 1965, "text": "THE MORVI MERCANTILE BANK LTD. AND ANR. v.\n\n1UNION OF INDIA, THROUGH THE GENERAL MANAGER,\n\nCENTRAL RAILWAY, BOMBAY March 3, I 965\n\n[K. SUBBA RAO, RAGHUBAR DAYAL, J. R. MUDHOLKAR,\n\nR. S. BACHAWAT AND V. RAMASWAMI, JJ.J Indian Contract Act (9 of 1872), s. 178, Transfer'of Property Act (4 of 1882). ss. 4 and 137 and Indian Sale of Goods Act (3 of 1930), 8s.\n\n30 and 53-Endorsel of Railway receipt-If pleduee of goods covered by receipt. ,\n\nA firm doing business in Bombay entrusted goods worth Rs. 35,500 to the Railway for delivery in Delhi. The good\" were consigned to \"self\" and the firm endorsed the railway receipts to a Bank against an advance of Rs. 20,0-00 made by the Bank to the firm. The firm also executed a promissory note in favour of the Bank for that amount.\n\nWhen the goods reached the destination, the Ba.nk refused to take delivery, on the ground that they were not the goods consigned by the firm. The Bank, thereafter filed a suit for the recovery of the value of the goods. The trial court dismissed the suit. On appeal by the Bank, the High Court allowed the appeal and decreed the claim for Rs. 2(),000 on the grounJ that as pledgee of the goods, the Bank suffered loss only to the extent of the loss of its security, Both the Bank and the Railway appealed to this Court, and it was contended on behalf of the Railway that the endorsement of the railway reoeipt in favour of the Bank, did not constitute a pledge of the goods covered by the receipt and that the Bank had no right to sue for compensation.\n\nHELD: (Per Subba Rao, Raghubar Dayal and Bachawat, JJ): The firm by endorsing the railway receipts in favour of the Bank, for con°ideration, pledged the goods covered by the said. receipts, to the Bank, and the Bank being the pledgee could maintain the suit for the recovery of the full value of consignment amounting to Rs. 35,500.\n\n[264 H; 265 D-E] .\n\nOn a reasonable construction of s. 178 of the Contract Act, 1872, 8S. 4 and 137 of the Transfer of Property Act, 1882, and ss. 30 and 53 of the Indian Sale of Goods Act, 1930, an owner of goods, can make a valid pledge of them by transferring the railway receipt representing the said goods. To the general rule expressed by the Maxim nemo dat quod non habet (no one can convey a better title than what he had), to facilitate mercantile transactions, the Indian Law has i:rafted some exceptions, in favour of bonafide pledgees by transfer of documents of title from persons. whether owners of goods who <lo not possess the full bundle of rights of ownership at the time the pledges are made, or their mercantile agents. To confer a right to pffect a valid pledge by transfer of. document of title relating to goods on persons with defects in their title to the goods. and on mercantile agents, and to deny it to the .full owners thereof, is to introduce an incongruity into the Act. On the other hand, the real intention of the legi•lature will be carried out if the said right is conceded to the full owner of goods and extended by construction to persons with defects in their title to the goods or to mercantile agents. A pledge being a bailment of goods under s. 172 of the Contract Act, the pled- gee. as a bailee. will have the same remedies as the owner of the goo:'s would have agaimt a third person for deprivation of the said goods or injury to them under s. 180 of the Act. [264 A-C, HJ\n\nMORVI BANK V. UNION OF INDiA 255\n\nRCtmdas Vithaldas Durbar v. S. Amarchand and Co., (1916) L. R. 43 I. A. 164 and The Official Assignee of Madras v. The Mercantile Bank of India, Ltd. (1934) L. R. 61 I. A. 416, referred to.\n\nPer Mudholkar and Ramaswami JJ. (dissenting): There was no valid pledge of the consignments of goods represented by the railway receipt in favour of the Bank and the Bank was not entitled to sue the Railway for compensation for the loss of goods. relying upon the endorsements of the railway receipts in }ts favour. [272 G-HJ\n\nAfter the passing of the Indian Contract (Amendment) Act, 1930, the legal position with regard to the pledge of railway receipts, is exactly the same in Indian Law as it is in English Law, and consequently, the owner of the goods cannot pledge the goods represented by a railway receipt, by endorsing the railway receipt, unless the railway Authorities were notified of the transfer, and they agreed to hold the goods as bailee of the pledgee_ Under the amended law a valid pledge can no longer be made by every person \"in possession\" of goods. It can only be made by a mercantile agent as provided. in s. 178 of the Contract Act (after amendment in 1930) or by a person who has obtained possession of goods under a contract voidable under s. 19 or s. 19A of the Contract Act, as provided by s. 178 of the Act. or by a seller or buyer in possession of goods. after sale. as provided in s. 30 of the Indian Sale of Goods Act. ~271 F-G; 272 C-D)\n\nFurther, though a railway receipt and all other documents. enumerated ins. 2(4) of the Sale of Goods Act are assimilated to bills. ; if lading for the purpose of the right to stoppage in transit and a\n\npledge under s. 178 of the Contract Act, its legal position is the same as in Enitlish law, so that, no rights are created, merely by reason of the endorsement of a railway receipt by the consignee between the endorsee and the railway company which had issued the rece1nt to the consirmee. the only remedy of the endorsee being against the endorser. The negotiation of the receipt may pass the property m the goods, but it does not tvansfer the contract contained in the receipt or the statutory contract under s. 74E of the Indian Railways Act.\n\nNegotiability is a creature of a statute or mercantile usage, not of judicial decisions apart from either. So, in the absence of any usage of trade or any statutory provision to that effect, a railway receipt cannot be accorded the benefits which fiow from negotiability under the Negotiable Instruments Act, so as to entitle the endorsee, as the holder for the time being of the document of title, to sue the carrier -the railway authority-in his own name. If the claim of the Bank was as an ordinary assignee of the contract of carriage, then it had to prove the assignment. In the absence of proof of such assignment, or of the existence of any practice of merchants treating a railway receipt as a symbol of goods making a pledge of the receipt a pledge of goods, and in view of cl. (3) of the notice printed at the back of the receipt that an endorsement made on the face of the receipt ty the consignee was only meant to indicate_ the person to whom the consignee wished delivery of goods to be made if he himself did not attend to take delivery, the Bank had no right to sue the Railway. [273 E-G; 274 D-G]\n\nSince the language of s. 178 of the Contract Act is clear and explicit, if any hardship and inconvenience is felt because such a practice of treating the receipt as a symbol ?f goods were not recognised, it is for Parliament to take appropriate steps to amend the law and it is not for courts to legislate under the guise of interpretation. [275 G]\n\n256 •\n\nCOURT\n\nREPORTS (1965] 3 s.c.R.\n\nSUPREME\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 474 and A 475 of 62.\n\nAppeal from the judgment and decree dated January 10, 1958, .of the Bombay High Court in Appeal No. 375 of 1953.\n\nJ. C. Bhatt, B. R. Agarwala and H. K. Puri, for the appellants (in C.A. No. 474 of 1962) and respondent (in C.A. No. 475 B of 1962).\n\nNiren De, Additional Solicitor-General, N. D. Karkhanis, B.R.G.K. Achar, for R. N. Sachthey, for Respondent (in C.A. No. 474 of 1962) and appellant (in C.A. Nos. 475 of 1962).\n\nThe. Judgment of SUBBA RAO, DAYAL and BACHAWAT JJ. was delivered by SUBBA RAO, J. The dissenting Opinion of MUDHOLKAR and RAMASWAMI JJ. was delivered by RAMASWAMI J.\n\nSobba Rao, J. On October 4. 1949, Mis. Harshadrai Mohanlal & Co., a firm doing business at Thana, Bombay, hereinafter called the firm, entrusted 4 boxes alleged to have contained menthol crystals to the then G.LP. RaHway for carriage from Thana to Okhla near Delhi under a railway receipt bearing No. 233/27. On October II, 1949, the firm consigned 2 more such boxes to Okhla from Thana under 2 r1ilway receipts bearing Nos. 233 I 35 and 233 I 36. All the said 6 boxes were marked with the name of the said firm and were consigned to \"self\". The said firm endorsed the relevant railway rceipts in favour of Mo; vi Mercantile Bank Ltd .. hereinafter called the Bank, against an advance of Rs. 20,000 made by the Bank to the firm. The sa; d consignments did not reach Okhla.\n\nThe railway company offered to deliver certain parcels to the Bank, but the Bank refused to take delivery of the same on the ground that they were not the goods consigned by the firm. As the railway failed to deliver the boxes, the Bank, as the endorsee of the said railway receipts for valuable consideration, filed Civil Suit No\n\n50 of 1950 in the Court of the Civil Judge, Senior Devision. Thana, against the Union of India through the General Manager, Central Railway, Bombay, for the recovery of Rs. 35,500, being the value of the goods contained in the said consignments as damages. The defendant in the written-statement averred that on February I, 1950, the railway company offered to deliver all the consignments to the Bank, but the latter wrongfully refused to take delivery of the same on the ground that the consignments were not identical to the ones consigned from Thana; it put the plaintiff to strict proof of the allegation that the consignments contained menthol crystals as alleged or that the aggregate value of the said consignments was Rs. 35,500. or that the railway receipts were endorsed in favour of the plaintiff for valuable consideration.\n\nThe learned Civil Judge found as follows: (1) The boxes consigned by the firm contained menthol crystals and by the wrongful conduct of the employees of the railway administration the contents of the boxes were lost; (2) the said consignments were not offered\n\nHORVI llANK V. UNION (Subba Rao, J.) 2li7\n\nfor delivery to the Bank, but what was offered were different consignments containing caustic soda; (3) the relevant railway receipts were endorsed by the firm in favour of the Bank for valuable consideration; and (4) the Bank, as endorsee of the railway rece.; pts, was not entitled to sue the railway company on the railway receipts for loss of the consignments. On those findings the suit filed by the Bank was dismissed with costs. The Bank preferred an appeal to the High Court against the decision of the learned Civil Judge, being First Appeal No. 375 of 1953.\n\nThe appeal was heard by a Division Bench of the Bombay High Court, consisting of J. C. Shah and Gokhale, JJ. The learned Judges agreed with the learned Civil Judge on the first 3 findings; but on the 4th finding they took a different view. They held that the Bank, as endorsee of the said railway receipts, was entitled to sue for compensation for the loss suffered by it by reason of the loss of the cons'gnments, but, as pledgees of the goods, it suffered the loss only to the extent of the loss of its security. On that view, the learned Judges gave a decree to the Bank for a su~ of Rs. 20,000 advanced by it with interest and proportionate costs in both the Courts. The plaintiff as well as the defendant preferred, by certificate, cross appeals to this Court.\n\nLearned Additional Solicitor General raised before us the following points: (I) In law the endosement of a railway receipt does not constitute a pledge; (2) an endorsement of a railway receipt for consideration constitutes at the most a pledge of the railway receipt and not the goods covered by it, and, therefore, in the present case the Bank acquired only a right to receive the goods covered by the relevant receipts from the railway; and (3) if the endorsement of the railway receipts does not constitute in law a pledge of the goods, the Bank has no right to sue for compensation, as, though the proprietary right in the goods was transferred to it, the right to sue under the contracts did not pass to it. .\n\nThe decision on the first point depends upon the scope of the legal requirements to constitute a pledge under the Indian law.\n\nThat calls for a careful scrutiny of all the relevant provisions of the Indian Contract Act, the Indian Sale of Goods Act and the Transfer of Property Act. for their combined consideration yields the answer to the problem raised.\n\nUnder the Contract Act, delivery of goods by one person to another under a contract as security for payment of a debt is a pledge. Ordinarily delivery of tangible property is essential to a true pledge; but where the law recognizes that delivery of tangible symbol involves .a transfer of possession of the property symboliz.ed, such a symbolic possession takes the place of physical delivery. The short but difficult question, therefore, is whether the Indian law equates the railway receipts with the goods covered by them for the purpose of constituting delivery of goods within the meaning\n\nSUPREME COURT REPORTS\n\n[1965) 3 S.C, R.\n\nof the Contract Act. Before the amendment of s. 178 of the Con-· A tract Act and the passing of the Sale .of Goods Act, 1930, the scope of ndway receipts vis-a-vis the goods covered by them came up for ' consideration before the Judicial Committee in Ramdas Vithaldas Durbar v. S. Amarchand & Co., ('). The head-note of that case succinctly gives the following facts: Sellers of cotton consigned it to the buyer in Bombay, and forwarded to him receipts issued by B the railway company which had undertaken the cardage. The receipts provided that they should be given up at the destination by the consignee, and that if he did not himself attend to take delivery he must endorse on the receipt a request for delivery to whom he wished ino be made. The evidence showed that similar receipts for cotton were used in the ordinary course of business in Bombay 0 as proof of the possession and control of the goods therein referred to, or as authorising the holder to rece; ve or transfer the goods. The consignee endorsed and delivered the receipts as security for advances made specifically upon them in good faith. The sellers sought to stop the cotton in transit. The Judicial Committee held that the railway receipts were instruments of title within the meaning of the D Indian Contract Act, 1872, s.103, and that the sellers were therefore not entitled to stop the goods except upon payment or tender to the pledgees of the advances made by them. This decision lays down 3 propos; tions, namely; (i) the railway receipts in question in that case were used in the ordinary course of business in Bombay as proof of possession and control of the goods therein referred to, E or as authorising the holder to receive or transfer the goods; (ii) such railway receipts were documents of title and a valid pledge of the goods covered by the receipts could be made under the Contract Act, before it was amended in 1930, by endors; ng and delivering the same as security for advances made to the owner of the goods.\n\nIt may be noticed at this stage that under the Contract Act before F it was amended in 1930 there was no definition of the expression \"documents of title\", but there was one in the Indian Factors Act (XX of 1844) which, with certain modifications, made the provisions of the English Factors Act, 1842, applicable to British India.\n\nThe last mentioned Acts defined the expression \"documents of title to goods\" as including any bill of lading, dock-warrant, ware-house- G keeper's cert; ficate, whar-finger's certificate, warrant or order for the delivery of goods and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or by delivery. the possessor of the document to transfer or reeive goods. thereby represented. Railway receipt was eo nomine not included H in the definition. But the Privy Council, on the basis of the evidence adduced in that case, brought the railway receipts under that part of the definition describing generally the documents of title to goods. It may also be noticed that the Judicial Committee, though\n\n(') [19lC] L. R. 4a I. A. 134.\n\nllOBVI BANK.V. UNION (Sub/Ja Jlao, J.) '.il59\n\nits attention was called to the provisions of ss. 4 and 137 of the Transfer of Property Act, preferred to decide that case dehors the said provisions. In the Explanation to s.137 of the Transfer of Property Act, 1882, which was introduced by the Amending Act 2 of I 900, the definition of the expression \"mercantitle document\" i! practically the same as that found in the Indian Factors Act noticed by the Judicial Committee in the decision cited supra, with the difference that it expressly includes therein railway receipt. Under s.4 thereof,. the Chapter and the sections of the Act shall be takem as part of the Indian Contract Act, 1872. In 1930 Parliament in enacting the Indian Sale of Goods Act, 1930, presumably borrowed the definition of \"documents of title to goods\" from the Indian Factors Act and the Engl.'sh Factors Act noticed by the Judicial Committee, but expressly included in the definition the railway receipt. This indicates the legislative intention to accept the mercantile asage found by the Judicial Committee in Ramdas Vithaldas Durbar v. S. Amerchand & Co.('). The same definition was incorporated by reference in the Explanation to s.178 of the Contract Act as amended in the year 1930. This definition is also in accord with the definition of \"mercantile document of title to goods\" in the Explanation to s.137 of the Transfer of Property: Act. The Judicial Committee had another occasion to consider the question of pledge of railway receipt in Official Assignee of Madras v. Mercantile Bank of India, Ltd.('). The facts in that case were as follows: The insolvents\" did a large business in groundnuts, which they purchased from the up-country growers; the nuts were then despatched by rail and arrived in Madras by one or other of the two railways, the Madras & Southern Maharatta Railway or the South Indian Railway. Under an arrangement between the said Railways and the Madras Port Trust, the consignments of nuts when received were deposited in the godowns of the. Madras Port Trust. The general course of business was for the insolvents to obtain from the railway companies in respect of each consignment or wagon load a railway receipt. The insolvnts obtained loans from the respondent-\n\nBank after sending to ihe said Bank the railway receipts duly endorsed in blank and also after executing a promissory note for the amount a letter of hypothecation., When the goods arrived at the port, delivery was taken from the Port Trust. against the railway receipts. At the time the insolvents were adjudicated the bags of ground-nuts in question in that case were either in transit on the railway or in the transit sheds or godowns of the Port Trust. On those facts, the main question was whether the pledge of the railway receipt was a pledge of the goods represented by them or merely a pledge of the actual documents. If there was a valid pledge before the insolvency, the Bank would be entitled to receive the amount realised by the sale of the goods; if not, the Official Assignee would be entitled to it. The Judieial C.Orrui:J.ittee, after considering\n\n(') (1916) L.R. 43 I.A. 164.\n\n(1) (1934) L.R. 51 I.A. '16, 421.\n\nJ.(B(N)3SJl-4,\n\n\n(1965] 3 S.C.R.\n\nits earlier decision in Ramdas Vithaldas Durbar's case (') and all the relevant provisions which we have noticed eadier, came to the conclusion that there was a valid pledge of the goods rpresented by the receipts. It may be noticed that this decision also turned upon the relevant provisions of the Contract Act before its amendment in 1930, though at the time the decision was made the amendment came into force. On the question whether a pledge of a document is a pledge of the g::iods as distinct from the document, the Judicial Committee observed:\n\n\"Their Lordsh:ps likewise in the present case see no reason for giving a different meaning to the term (documents of title to goods) in s.178 from that given to the tel'!lls in ss. 102 and 103; in addition a railway receipt is specifically included in the definition of mercantile document of title to goods by s. 137 of the Transfer of Propety Act, 1882, which, in virtue of s.4 of the Act, is to be taken as part of the Contract Act as being a section relating to contracts. A railway receipt is now included in the definition of documents of title to goods in s. 2, sub-1>. 4, of the Indian Sale of Goods Act, 1930.\" On the construction of the expression \"person\" in s. 178 of the Contract Act, it was argued that the said expression took in only a mercantile agent and that the law in India was the same as in England. Rejecting that plea, the Judicial Committee remarked at p. 426 thus:\n\n\"Their Lordships did not in that case see any improbability in the Indian Legislature having taken the lead in a legal reform.\n\nIt may well have seemed that it was impossible to justify a restriction on the owner's power to pledge which was not imposed on the like powers of the mercantile agent. The same observation may well be true in regard to the words now being considered. The reasonableness of any such change in the law is well illustrated by the facts of the present case, where it was clearly intended to pledge the goods, not merely the railway receipts, and the respondents have paid i~ cash the advnces they ma?e on that footing. In these c1rcumstances, 1t would be mde.ed a hardship that they should lose their security.\" These pregnant observations show that there is no justification for the distinction that is being maintained in England between a pledge of a bill o! lading and ~~ pledge f d<><:Jllllets of. t!tle other than a bill of ladmg. The Jud1c1al Committee m this decJSJon clearly laid down, after noticing all the relevant provisions of th!l Contract Act, the Transfer of Property Act and the Sale of Goods Act, that railway receipts were documents of title and the goods cover-\n\n(1)(1916) L.R. 43 l.A. 164•\n\nll[ORVI BANK v. UNION (Subba Rao, J.) 261\n\ned by thedocuments could be pledged by transferring the documents. This decision is in accord with the view expressed by us on a fair reading of the said provisions.\n\nEven so, it is contended that by the amendment of s. 178 of the Contract Act in 1930, the Legislature has \"taken away the right 'Jf an owner of goods to pledge the same by the transfer of document~ of title to the said goods. Under the old section \"a person\" wlto was in possession of any goods etc. might make a valid pledge of such goods, whereas under the present section \"a mercantile agent'', subject to the conditions mentioned therein, is authorized to make a pledge of the goods by transferring the documents of title. Therefore, the argument proceeds, a person other than a mercar.tile agent qnnot make a valid pledge of goods by transferring the documents representing the said goods. This argument appears to be plausible and even attractive; but, if accepted, it will lead to anomalous results, It means an owner of goods cannot pledge the goods by transferring the documents of title, whereas his agent can do so. As the Privy Council pointed out it is impossible to justify a restriction on the owner's power to pledge when there is no such restriction imposed on the like powers of a mercantile agent. A carefull scrutiny of s. 178 of the Contract Act and the other relevant provision thereof indicates that the section assumes the power of an owner to pledge goods by transferring documents of title thereto and extends the power even to a mercantile agent. A pledge is delivery of goods as security for payment of a debt. If a railway receipt is a document of title to the goods covered by it, transfer of the said document for consideration effects a constructive delivery of the goods. On that assumption if we look at s. 178 of the Contract Act. the legal position is apparent. The material part of s. 178 of the Contract Act reads:\n\n\"Where a mercantile agent is, with the consent of the owner, in possession of goods or the documents of title to goods, any pledge made by him, when acting in the ordinary course of business of a mercantile agent, shall be as valid as if he were expressly authorised by the owner of the goods to make the same; provided that the pawnee acts in good faith and has not at the time of the pledge notice that the pawnor has not authority to pledge.\"\n\nThe section emphasizes that a mercantile agent shall be in possession of documents of title with the consent of the owner thereof; if he is in such possession and pledges the goods by transferring the documents of title to the said goods, by fiction, he is deemed to have expressly authorized by the owner of the goods to make the .same. The condition of consent and the fiction of authorization indicate that he 1s doing what the owner could have done. So too,\n\n~62\n\nSUPREME OOURT REPORTS\n\n(1965] 3 S.C.R.\n\n1. 30 of the Indian Sale of Goods Act discloses the legislative mind.\n\nThe relevant part of the said section reads :\n\n\"Where a person, having sold goods, continues or is in possession of the goods or of the documents of title to the goods, the delivery or transfer by that person or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge or other disposition thereof to any person receiving the same in good faith and without notice of the previous sale shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same!'\n\nThis sub-section shows that a person who sold the goods as well as a mercantile agent acting for him can make a valid pledge in the circumstances mentioned therein. If an owner of good~ or his mercantile agent, after the owner has sold the goods, can make a valid pledge by transferring the documents of title to the goods, it would lead to an inconsistent position if we were to hold that an owner who has not sold the goods cannot pledge the goods by transferring the documents of title. Sub-s. (2) of s. 30 of the Indian Sale of Goods Act relevant to the present enquiry reads:\n\n\"Where a person, having bought or agreed to buy goods, obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person or by a mercantile agent acting for him, of the , goods or documents of title under any sale, pledge or other disposition thereof to any person receiv• ing the same in good faith and without notice of any lien or other right of the original seller in respect of the goods shall have effect as if such lien or right did not exist.\"\n\nThis sub-section clearly recognizes that a buyer or his mercantile agent can pledge goods by transferring the documents of title thereto: it protects a bona fide pledgee from the buyer against any • claim by the original owner based on the lien or any other right still left in him. If the owner-the purchaser becomes the ownercannot pledge the goods at all by transfer of documents of title, the protection given under sub-s. (2) of s. 30 of the Sale of Goods Act to a bona fide purchaser is unnecessary. The material part of s. 53(1) of the Sale of Goods Act reads: . \"Subject to the provisions of this Act, the unpaid seller's right of lien or stoppage in transit is not affected by any sale or other disposition of the goods which the buyer may have made, unless the seller has assented thereto:\n\nProvided that where a document of title to goods has been issued or lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the., document in good faith\n\nMORVI BANK v. UNION (Subba Rae, J.)\n\nand for consideration, then, if such last mentioned transfer was by way of sale, the unpaid seller's right of lien or stoppage in transit is defeated, and, if such last mentioned transfer was by way of pledge or other _disposition for value, the unpaid seller's right of lien or stoppage in trap. sit can only be exercised subject to the rights of the transferee.\"\n\nThis sub-section protects a bona fide pledgee from an owner against any rights still subs'sting in his predecessor-in-interest. This assumes that the owner can pledge the goods by transfer of the relevant documents of title. The said sections embody statutory exceptions to the general rule that a person cannot confer on another a higher title than he possesses.\n\nThe argument that s. 178 of the Contract Act, as amended in 1930, restricts the scope of the earlier section and confines it only to a mercantile agent was noticed by the Judicial Committee in Official Assignee of Madras v. Mercantile Bank of India, Ltd.(') and it observed therein:\n\n\"The Indian Legislature may well have appreciated in 1872 the exigencies of business, even though in 1930 they recanted. Or perhaps they did not appreciate fully th~ effect of the actual words of the section.\" These observations indicate that the Judicial Committee did not express any final opinion on the construction of the amended s. 178 of the Contract Act as the question in the appeal before it related to the unamended section. Further, it did not notice the other sections referred to earlier which throw a flood of light on the true meaning of the terms of s. 178 of the Contract Act, as it now stands.\n\nThis conclusion also accords with the view expressed by Bachawat.\n\nJ., in Commissioner for the Port Trust of Calcutta v. General Trading Corporation Ltd.('),\n\nThe Indian decisions cited at the Bar do not deal with the question whether a valid pledge of goods can be effected by transfer of documents of title, such as a railway receipt, representing the goods; they were mainly concerned with the question whether an endorsee of a railway receipt for consideration could maintain an action on the basis of the contract embodied in the said receipt: see The firm of Dolatram.Dwarakdas v. The Bombay Baroda and Central India Railway Co. ('); Shah Mulji Deoji v. Union of India(') Commissioner for the Port Trust of Calcutta v. General Trading Corporation Ltd.('); and Union of India v. Taherali ('). These raise a larger question on which there is a conflict of opinion. In the view we have taken on the question of pledge, it is not necessary to express our opinion thereon in these appeals.\n\nt') {1934) L.R. 61 I.A. 416, 423. {') A.l.R. 1964 cal. 29r.\n\n(') (191') J, L.R. 38.Bom. 659. (') A.I.R, 1957 Nsg. 31.\n\n(1) (1956) 58 Born. L.l\\. 6!50.\n\n~64 SUPil, EME\n\nCOURT\n\nREPORTS\n\n(1965] 3 S.C.R.\n\nThe law on the subject, as we conceive it, may be stated thus: An owner of goods can make a valid pledge of them by transferring the railway receipt representing the said goods. The general rulr. ' is expressed by 'the maxim nemo dat quad non habet, i.e., no one <:an convey, a better title than what he had. To this maxim, to facilitate mercantile transactions, the Indian law has grafted some ex- <:eptions. in favour bona fide pledgees by transfer of documents\n\nOf title from persons, whether owners of goods or their mercantile :agents who do not possess the full bundle of rights of ownership :at the time the pledges are made. To confer a right to effect a valid pledge by transfer of documents of title relating to goods on owners of the goods with defects in title and mercantile agents and to deny it to the full owners thereof is to introduce an incongruity into the Act by construction. On the other hand, the real intention of the Legislature will be carried out if the said right is conceded to the -full owner of goot!ls and extended by construction to owners with .defects in title or their mercantile agents,\n\nWe are glad that, on a reasonable construction of the material provisions of the relevant Acts, we have been able to reach this conclusion. To accept the contentions of the respondents to the -contrary would be a retrograde step and would paralyse the entire mechanism of finance of. our internal trade. In this vast country where goods are carried by railway over long distances and remain\n\n:fu transit for long periods of time, the railway receipt is regarded as a symbol of the, goods for all purposes for which a bill of lading iR so regarded in England.\n\nThe next question is whether the plaintiff would be entitled to recover the full value of the consignments amounting to Rs. 35,500 /- or, as the High Court held, only the amount of Rs. 20,000 /- with inte:est, i.e., the amount secured under the pied\" ges. The answer to this question depends upon the construction of s. 180 of the Contract Act, it reads:\n\n\"If a third person wrongfully deprives the bailee of the\n\n?S~ or possess.ion ?f th~ goods bailed, or does them any miury, the badee 1s entitled to use such remedies as the QWner might have used in the nke cae if no bailment had\n\nbeen. mad~; and eit.Jier the -bailor or the bailee may bring a suit agamst a thrrd person for such deprivation or injury.\"\n\nUnder this section, a pledge being a bailment of goods as security for payment of a debt, the pledgee will have the same remedies aJ the owner of the goods would have against a third person for deprivation of the. said goods or injury to them. If so, it follows that the Bank, being the pledgee, can maintain the present suit for the recovery of the full value of the consignments amounting! to Rs. 35,500 /-.\n\nMORVI BANK v. UNION (Ramaswami, J.) 26~\n\nThe last question is whether the Bank was the pledgee of the goods or was only the pledgee of the documents of title whereunder they could only keep the documents against payment by the consignee as contended on behalf of the Railway. The firm borrowed a sum of Rs. 20,000 /- from the Bank and executed a promissory note, Ex. 104, dated October 6, 1949, in its favour. It also endorsed the railway receipts Nos. 233/27, 233/35 and 233/36 in favour of the Bank. The Accountant of the Bank deposed that the railway receipt~ were endorsed in favour of the Bank, which had advanced the sa; d amount to the firm on the security of the said railway receipts. The evidence of this witness was not challenged in the High Court. The Bank advanced a large amount of money to the firm. The three transactions, namely the advancing of loan, the execution of the promissory note and the endorsement of the railway receipts, together form one transaction. Their combined effect is that the Bank would be in control of the goods till the debt was discharged. This is a well known practice followed by Banks.\n\nThe Judicial Committee both in Ramdas Vithaldas Durbar v.\n\nS. Amerchand & Co.('), and the Official Assignee of Madras v. The Mercantile Bank of India, Ltd.(') held that such a transaction was a pledge. We, therefore, hold on the facts of this case that the firm by endorsing the railway receipts in favour of the Bank for consideration pledged the goods covered by the said receipts to the Bank. In th; s view it is not necessary to express our opinion on the question whether if the transaction was not a pledge of the goods, the Bank would be entitled to sue on the basis of the contract entered into between the firm and the Railway.\n\nNo other question was raised. In the result, Civil Appeal No. 474 of 1962 filed by the Bank is allowed; and Civil Appeal No. 475 of I 962 filed by the Railway is dimissed. The plaintiff's suit is decreed with costs throughout.\n\nRamaswami, J.\n\nWe regret we are unable to agree with the judgment pronounced by our learned brother Subba Rao J.\n\nOn October 4, 1949, Mis. Harshadrai Mohanlal & Co., (hereinafter referred to as the firm) entrusted 4 boxes containing \"menthol crystal\" to the then G.I.P. Railway for carriage from Thana railway station to Okhla near Delhi. On October 11, 1949, the firm consigned 2 more boxes also alleged to have contained \"menthol crystal\" to Okhla from Thana railway station. The Railway Receipts issued were numbered 233/27, 233/35 and 233/36. All the six boxes were consigned to \"self\". It is alleged that the Railway Receipts with regard to these six boxes were endored in favour of Morvi Mercantile Bank Ltd. (hereinafter referred to as the plaintiff-bank) against an advance of Rs. 20,000 by the plaintiff-bank on security of the Railway Receipts. The G.l.P. Railway offered to deliver the boxes at Okhla ra; lway station but the plaintiff-bank declined to accept the same alleging that the boxes were not those ('l (1916) L.R. 43 I.A. 164. -- --\n\n(') (1934) L.R. 61 I.A. 416, 423.\n\n\n(1965) 3 S.C.R.\n\nwhich were consigned from Thana station. The plaintiff-bank filed P, Civil Suit No. 50 of 1950 in the Court of the Civil Judge, Senior Division, Thafla, claiming a sum of Rs. 35,000 as damages for breach of contract. The suit was contested by the defendants on the ground that identical boxes which were consigned by the firm at Thana were offered to the plaintiff-bank who declined to accept the same and the Railway Administration had nor committed ar B breach of contract and, therefore, the Union of India was not liable to pay any damages. The trial Judge held that the boxes consign- , ed by the firm contained \"menthol crystals\" and by the unlawful conduct of the employees of the railway administration the contents of the boxes were lost, but he took the view that the plaintiffbank, as endorsee of the railway receipts, was not entitled to sue C for compensation for loss of the consignments. In taking that view the learned Civil Judge followed a decision of ,.the Bombay High Court in Shamji Bhanji & Co. v. North Western Railway Company('). The Civil Judge accordingly dismissed the suit by a judgment and decree dated January 15, 1953. Against that decision the plaintiff-bank preferred an appeal to the Bombay High Court which D confirmed the findings of the Civil Judge that the Railway failed to deliver the boxes at Okhla and the boxes contained \"menthol crystals\". The High Court also held that the plaintiff-bank assignees of the railway receipt was entitled to bring a suit for damages for breach of contract against the Union of India though the damages would be limited to the loss of its security. In taking this view E the Bombay High Court relied upon its previous decision in The\n\nUnion of India v. Taherali Isaji(').\n\nThe first question for determination in this case is whether there was a valid pledge of boxes of \"menthol crystals\" in. favour of the plaintiff-bank by endorsement on the railway receipts by the firm.\n\nF In English Law a pledge arises when goods are delivered by one person called the 'pledgor' to another person called the 'piedgee' to be held as security for the payment of a debt or for discharge of some other obligation upon the express or implied understanding that the subject-matter of the pledge is to be restored to the pledgor as soon as the debt or other obligation is discharged.\n\nG It is essential for the creation of a pledge that there should be a delivery of the goods comprised therein. In other words, a pledge cannot be created except by delivery of the possession of the thing pledged, either actual or 'constructive. It involved a bailment. If the pledgor had actual goods in his physical possession, he could effect the pledge by actual delivery; but in other cases he could give pos- B session by some symbolic act, such as handing over the key of the store in which they were. If, however, the goods were in the actual physical possession of a third person, who held for the bailor so that in law his possession was that of the bailor, this pledge could be effected by a change of the character of the possession of the\n\n(') A.LR. 1947 Romb. 169. (') (1956) 58 Ilomb. L.R. 650.\n\nMOBVI BANK v. UNION (Ramaswami, J.) 267\n\nthird party, that is by an order to him from the pledgor to hold for the pledgee, the change being perfected by the third party attorning to the pledgee, thus acknowledging that he thereupon held for the latter. There was thus a change of possession and a constructive delivery; the goods in the hands of the third party came by this process constructively in the possession of the pledge. But where goods were represented by documents the transfer of the documents did not change the possession of the goods, save for one exception, unless the custodian (carrier, warehouseman or such) was notified of the transfer and agreed to hold in future as bailee for the. pledgee. The one exception was the case of bills of lading, the transfer of which by the law merchant operated as a transfer of the possess; on of, as well as the property in, the goods.\n\nThis exception has been explained on the ground that the goods being at sea the master could not 'be notified; the true explanation was perhaps that it was a rule of the law merchant, developed in order to facilitate mercantile transactions, whereas the process of pledging goods on land was regulated by the narrower rule of the common Jaw.\n\nThe position in English Law, therefore, was that in the casec of delivery of documents of title other than bills of Jading, a pied\n\nof the documents is merely a page of the ipsa corpora of them, for the transfer of documents does not change the possession of the goods unless the custodian (carrier, warehouseman or such) was not'fied of the transfer and agreed to hold in future as bailee for the pledgee. In Inglis v. Robertson and Baxter('). It was held by thee\n\nHouse of Lords that where goods are lodged in warehouses in Scotland a pledgee of the goods must, to make effective all real rights: which depend on the constructive delivery of the goods, give notice of the pledge to the warehouse-keeper. The Factors Act 1889' enacts:\n\n\"SJ. A pledge of the documents of title to goods shall be deemed to be a pledge of the goods.\"; and s.l : 'For the purposes of this Act' (sub-s. 5). The expression 'pledge' shall include any contract, pledging, or giving a lien or security on, goods, whether in consideration of an original advance or of any further or continuing advance or of any pecuniary liability'. Sect. 9. prescribes that the effect of delivery or transfer of the documents of title of the goods under any pledge &c., by a person who having bought the goods obtains with the consent of the seller possession of the goods or documents of title, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner.\" Goods were stored by G, a domiciled Englishman, in a bonded warehouse in Glasgow, transferred into the name of G as owner; and , he warehouse-keeper issued to G delivery orders showing that\n\n(') (1898) A.C. 616.\n\n~68\n\nSUPREME OOURT REPORTS\n\n(1965] 3 S.C.R.\n\nthe go@ds were held to G's order 'or assigns by endorsement A hereon'. G obtained a loan from I an English merchant, and delivered to him in England a letter of hypothecation stating that he deposited a part of the goods with him in security, with power of sale, and G endorsed and handed to I the delivery warrants. I did no~ intimate or give notice of the right he had acquired to the warehouse-keeper. R. & B., claiming as peronal creditors of G, B arrested the goods in the hands of the warehouse-keeper and then raised an action against him in the Scottish Court claiming through the arrestment a preferable right thereto. It was held by the House of Lords thats. 3 of the Factors Act, 1889, was merely intended to define the full effect of the pledge of the documents of title made by a mercantile agent, and that it had no application to the case C of the pledge of the documents of title by one in the position of G, who was not a mercantile agent within the meaning of the Act; nor was G a pledgor within s. 9 of the same Act. At pages 625 to 627 Lord Watson states:\n\n'I can see no reason to doubt that, by Scottish law as D well as English, the endorsement and handing over of delivery orders in security of a loan, along with a letter professing to hypothecate the goods themselves, is sufficient in law, and according to mercantile practice, to constitute a pledge of the documents of title, whatever may be the value and effect of the right so constituted. In my opinion, E the right so created, whether in England or in Scotland, will give the pledgee a rlght to retain the ipsa corpora of the documents of title until his advance is repaid. The crucial question in this case is whether the tight goes farther, and vests in the pledgee of the documents, not a jus ad rem merely, but a real interest in the goods to which F these documents relates .\n\n• • • • It was not disputed by the appellant's counsel, and it is hardly necessary to repeat, that by the common law of Scotland the indorsation and hypothecation of delivery orders, although it may give the pledgee a right to retain the documents, does not give him any real right in the goods which they represent. He can only attain to that right by presenting the delivery orders to the custodier by whom they were granted, and obtaining delivery of the goods from him, or by making such intimation of his right to the custodier as will make it the legal duty of the latter to hold the goods for him. His right, which in so far as it relates .to the goods is in the nature of jus ad rem, will be defeated if, before he has either obtained delivery or given such intimation, the goods are validly attached in the hands of the custodier .by a creditor of the person for .Whom the custodler holds them.\"\n\nMORVI BA,.'!K v. UNION (Ramaswami, J.) 269\n\nThe principle is reiterated by the House of Lords in Dublin City Distiltery Ltd. v. Doherty(') in which the plaintiff advanced moneys to a distillery company on the security of manufactured whisky of the company stored in a ware-house. Neither the company nor the excise officer could obtain access to the warehouse without the assistance of the other, and the whisky could only be delivered out on presentation to the excise officer of a special form of warrant supplied by the Crown. On the occasion of each advance the company entered the name of the plaintiff in pencil in their stock-book opposite the particulars of the whisky intended to be pledged and delivered to the plaintiff (1) an ordinary trade invoice and (2) a document called a warrant, which described the particu\\ars of the whisky and stated that it was deliverable to the plaintiff or his assigns. It was held by the House of Lords that the plaintiff was not entitled to a valid pledge on the whisky comprised in the warrants. At pages 843 and 847 of the Report Lord Atkinson states the law on the point as follows:\n\n\"As to the second question, it was not disputed that, according to the law of England, and indeed of Scotland. a contract to pledge a specific chattel, even though money be advanced on the faith of it, is not in itself sufficient to pass any special property in the chattel to the pledgee.\n\nDelivery is, in addition, absolutely necessary to complete the pledge; but of course it is enough if the delivery be constructive, .or symbolical, as it is called, instead of actual.\n\nThe example of constructive delivery frequently given is the delivery of the key of the store or house in which the goods have, been placed; but that is because, in the words of Lord Hardwicke, 'it is the way of coming at the possession, or to make use of the thing', Ward v. Turner\n\n(1751) 2 Yes. Sen. 431 at P. 443).\n\n* * * * The giving by the owner of goods of a delivery order to the warehouseman does not, unless some positive act be done under it, operate as a constructive delivery of the goods to which it relates: McEwan v. Smith (1849) 2\n\nH.L.C. 309). And the delivery of a warrant such as those delivered to the respondent in the present case is, in the ordinary case, according to Parke B., no more than an acknowledgment by the warehouseman that the goods are deliverable to the person named therein or to any one he may appoint. The warehouseman holds the goods as the agent of the owner until he has attorned in some way to this person. and agreed to hold the goods for him; then, and not till then, does the warehouseman become a bailee for the latter; and then, and not till then, is there a constructive delivery of the goods. The delivery and\n\n( 1/ (191') A.O. 823.\n\n270 8Ul'REM:E COUR'r REPORW\n\n[1965] 3 S.C.R.\n\nreceipt o~ the warrant does not per se amount to a delivery and receipt of the goods: Farina v. Home (16 M. & W. 119); Bentall v. Burn ( (1824) 3 B.&C. 423).\" In our opinion, the position in Indian Law is not different.\n\nSection 1.72 of the Contract Act which defines a 'pledge' affirms the Eng1'sh Common Law. Sect10n 172 states that \"the bailment of goods as security for payment of a debt or performance of a promise\" is called a \"pledge\". The bailor -is in this case called the \"pawnor\" and the bailee is called the \"pawnee\". According to s. 148 of the Contract Act \"a bailment is the delivery of goods by one .person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the 'bailor'. The person to whom they are delivered is called the 'bailee'. Section 149 states that the delivery to the bailee may be made by doing anything which has the effect of putting the goods in the possession of the intended bailee or of any person .tuthorised to hold them on his behalf. Reference should also be made to s. 178 of the Contract Act, as it stood before the Indian Contract (Amendment) Act, 1930.\n\nThe original s. 178 states:\n\n\"A person who is in possession of any goods, or of any b; ll of lading, dock-warrant, warehouse-keeper's certificate wharfinger's certificate, or warrant or order for delivery, or any other document of title to goods, may make a valid pledge of such goods or document,;: Provided that the pawnee acts in good faith and under circumstances which are not such as to raise a reasonable presumption that the pawnor is .acting impropc:_;:\n\nProvided also that such goods or documents have not been obtained from the lawful owner, or from any person in lawful custody of them, by means of an offence or fraud.\" By the Indian Contract (Amendment) Act, 1930 the section was repealed and the subject-matter of that section is now spread over the present ss. 178 and l 78A of the Contract Act and s. 30 of the Indian Sale of Goods Act. The new section 178 of the Contract Act states:\n\n\"Where a mercantile agent is, with the consent of the owner, .in possession of goods or the documents of'title to goods, any pledge made by him, when acting in the ordinary course of business of a mercantile agent, shall be as valid as if he were expressly authorfr,, d by the owner of the goods to make the same; provided that the pawnee acts in good faith and has not at the time of the pledge notice that the pawnor ilas no authority to pledge;\n\nExplanation-fn this section the expressions 'mercantile agent' and 'documents of title' shaII have the meanings assigned to them in the Indian Sale of Goods Act, 1930.\"\n\nl!ORVI BANK v. UNION (Rumaswami, J.) 271\n\nSection 30 of the Indian Sale of Goods Act provides as follows:\n\n\"30(1) Where a person, having sold goods, continues or is in possession of the goods or of the documents of title to the goods, the delivery or transfer by that person or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge or other disposition thereof to any person receiving the same in good faith and without 110tice of the previous sale shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the•same.\n\n(2) Where a person, having bought or agreed to buy\n\noods, obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the rlelivery or transfer by that person or . by a mercantile agent acting for him, of the goods or documents of title under any sale, plec; lge or other disposition thereof to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods shaJJ have effect as if such lien or right did not exist.\" Section l 78A of the Contract Act states:\n\n\"l 78A. When the pawnor has obtained possession of the goods pledged by him under a contract voidable under section 19 or section 19A. but the contract has not been rescinded at the time of the pledge. the pawnee acquires a good title to the goods, provided he acts in good faith and without notice of the pawnor's defect of title.\" After the passing of the Indian Contract (Amendment) Act, 1930 the legal position with regard to the pledge of railway receipts is exactly the same in Indian Jaw as it is in English Jaw and consequently the owner of the goods cannot, pledge the goods represented by the railway receipts in the present case unless the railway authorities are notified of the transfer and they agree to hold the goods as bailee for the pledgee.\n\nOn behalf of the appellants Mr. Bhatt placed strong reliance upon the decision of the Judicial Committee in Official Assignee of Madras v. Mercantile Bank c, f India, Limited(') in which it was held that a railway receipt, providing that delivery of the consigned goods is to be made upon the receipt being given up by the consignee or by a person whom he names by endorsement thereon, is a document of title within the meaning of the Indian Contract Act, 1872, (s. 178 for which a new section was substituted by the amending Act IV of 1930), and a pledge of a railway receipt operated under the repealed section as a pledge of the goods. But this decision is not of much assistance to the appellants, because it was concerned with the interpretation and legal effect of s. 178 of the Contract Act as it stood before the Indian Contract (Amending)\n\n(') (1934) 61 I.A. ~16.\n\n\\!72\n\nSUPREME COURT REPORTS [l 965J 3 s.c.R.\n\nA:t (ending Act IV of 1930). It was held by the Judicial Com\n\nm!!tee 1il that case that under the repealed s. 178 the owner of the goeds could obtain a loan on security of a pledge of the goods by the pledge of the documents of title. But it is significant to note that s. 178 has been amended by the Amending Act, 1930 and. under the present section tatutory power to pledge goods or documents of title is expressly confined to mercantile agents while acting in the customary course of the business. There are two other instances in which a person other than the owner of the goods may make a valid pledge of the goods and these two instances are dealt with in s. l 78A of the Contract Act and s. 30 of the Indian Sale of Goods Act. The result, therefore, under the amended law is that a valid pledge can no longer be made by every person \"in possession\" of goods. It can only be made by a mercantile agent as provided in the new s. 178 of the Contract Act or by a person who has obtained possession of the goods under a contract voidable under s. 19 or s. 19A of the Contract Act as provided in ~. l 78A, or by a seller or by a buyer in possession of goods after sale as provided in s. 30 of the Indian Sale of Goods Act. Learned Counsel for the appellants also referred to the decision of the Judicial Committee in Ramdas Vithaldas Durbar v. S. Amerchand & Co.(') in which the Judicial Committee explained the legal effect of ~. 103 of the Contract Act, as it originally stood. It was held by Lord Parker that the railway receipts are instruments of title within the meaning of the Indian Contract Ad, 1872, s. 103, and that the sellers were therefore not entitled to stop the goods in transit except upon payment or tender to the pledgees of the advances made by them. It is manifest that the decision cannot afford assistance to the appellants, because, in the first place, it related to the construction of old s. 103 of the Contract Act in regard to the right of stoppage of goods in transit, and, in the second place, there has been a significant change in the law in view of the legislative amendment of s. 178 of the Contract Act by the Indian Contract (Amendment) Act, 1930.\n\nIn the present case, therefore, our concluded opinion is that there is no valid pledge of the consignments of menthol crystals represented by the railway receipts in favour of the plaintiff-bank and the finding of the High Court on this point is erroneous in law We shall next deal with the question whetlter the plaintiff can sue on the contract of bailment even though there is no valid pledge of the goods in favour of the plaintiff. It was contended on behalf of the appellants that the plaintiff-bank was the endorsee of railway receipts and, therefore, it was entitled to sue the defendants for compensation for the loss of .the goods. We are unable to accept this argument as correct. At Common law a bill of lading was not negotiable like a bill of exchange so as to enable the endorsec . to maintain an action upon it in his own name, the effect of the\n\n(') (1914) ~3 I.A. 164.\n\nMORVI BANK v. 1.iNION (Ramaswami, J.) 273\n\nof the endorsement being only to transfer the property in the goods but not the contract itself. It was observed by Alderson. B. in Thompson v. Dominy (') as follows:\n\n\"This is another instance of the confusion, as Lord Ellenborough in Waring v. Cox expresses it, which 'has arisen from similitudinous reasoning upon this subject'.\n\nBecause, in Lickbarrow v. Mason, a bill of lading was held to be negotiable, it has been contnded that that instrument possesses all the properties of a bill of exchange; but it would lead to absurdity to carry the doctr, ine to that length. The word 'negotiable' was not used in the sense in which it is used as applicable to a bill of exchange, but as passing the property in the goods only.\"\n\nDelivery orders, warrants, written engagements to cfeliver goods and similar documents are in the same position as the bills of lading were before jhe Bills of Lading Act, 1855 (18 & 19 Vic.\n\nc. 111). They are mere promises by the seller, being the issuer or transferor, to deliver, or authorise the buyer to receive possession. It is only by reason of the enactment of the Bills of Lading Act, 1855 08 & 19 Vic. c. 111) that the issue or transfer of a bill of lading operates as a delivery to the buyer of the goods shipped, and the consignee of the bill of lading is entitled to sue upon the contract contained in the same. The same provisions are contained in the Bills of Lading Act (Act IX) of 1856 in India. It is true that the railway rece; pt and all other documents enumerated in s. 2, sub-s. (4), Sale of Goods Act, are assimilated to bills of lading for the purposes of the right of stoppage in transit under s. 103, Contract Act and a pledge under s. 178, Contract Act as explained by the Judicial Committee in Ramdas Vitha/das v. S. Amerchand & Co.(') and Official assignee of Madras v. Mercantile Bank of India('). But the effecl of these decisions is not to assimilate the railway receipt to a b; ll of lading for all purposes whatsoever. The legal position ot the railway receipt is the same as it was in English law and that position is not affected at all by the enactment of s. 2, sub. s. (4) ot the Sale of Goods Act, or the enactment of proisions analogous to ss. 103 and 178 of the Contract Act. As stated in Halsbury'&\n\nLaws of England, Hailsham Edition, Vol. 29, at p. 143, Art. 179:\n\n\"Such documents, although they may purport to be, or may commonly be treated as, transferable, are not negotiable instruments, unless there be a trade usage to that effect. Accordingly, subject to the provisions of the Factors Act 1889, the owner cannot claim delivery of the goods except from the seller who is the issuer or immediate transferor of the document.\" It is manifest that there are no rights created merely by reason of the endorsement of a Railway Receipt between the endorsee and\n\n(') 153 E.R. fi32.\n\n(') (1916) J,.R. 43 I.A. 164.\n\n(1) (1934) L.R. 61 I.A. U6, 413.\n\n\n.the railway company which has issued. the railway receipt to he consignee, the only remedy of the endorsee being against the endorser. This was the position in English law, except in the case of bills of lading the transfer of which by the Law Merchant operated as a transfer af the possession of as well as the property in the goods as observed by Lord Wright in Official Assignee of Madras\n\nv. Mercantile Bank of India, Limited('} at page 422. The endorsee may bring an action as an assignee of the contract of carriage but then the assignment has to be proved as in every other case. It is\n\ntrue that by reason of s. 137 of the Transfer of Property Act, the provisions relating to the transfer of an actionable claim do not .apply to a railway receipt, and the assignment need not be accord- .ing to any particular form, but a railway receipt is not like a negotiable instrument (See Mercantile Bank of India Ltd. v. Central Bank of India Ltd.('). It is also apparent that subject to the exceptions mentioned in ss. 30 and 53 of the Indian. Sale of Goods Act, 1930, and s. 178 of the Contract Act, 1872, its possessor cannot give a better title to the goods than he has. The negotiation of the railway receipt may pass the property in the goods, but it does not transfer the contract contained in the receipt or the statutory contract under s. 74-E of the Indian Railways Act. Negotiability is a creature of statute or mercantile usage, not of judicial decisions apart from either. So, in the absence ,. f any usage of trade er any statutory provision to that effect, a railway receipt cannot be accorded the benefits which flow from negotiability under the Negotiable Instruments Act, so as to entitle the endorsee as the holder for the time being of the document of title to sue the carrier-the railway authorities---,-in his own name. If the claim of the plaintiff is as an ordinary assignee of the contract of carriage, then the plaintiff has to prove the assignment in his favour. In the present case the plaintiff-bank has furnished no such proof of assignment in its favour. In view of cl. (3) of the notice printed at tne back of the railway receipt it is clear that an endorsement made on the face of the railway receipt by the consignee is meant to indicate the person to whom the consignee wishes delivery of the goods to be made if he himself doe5 not attend to take delivery. An endorsement made by the consignee on the face of the railway receipt requesting the railway company to deliver the goods to the endorsee merely conveys to the railway company that the person in whose favour the endorsement is made by the consignee is constituted by him a person to. whom he wishes that delivery of the goods should be made on his behalf. Clause (3) of the notice printed at the back of the railway receipt states:\n\n\"That the railway receipt given by the railway company for the articles delivered for conveyance, must be given up at destination by the consignee to the railway company, otherwse the railway may refuse to deliver and that the signature of the consignee or his agent in the delivery\n\n(') (1934) L.R. 61 I.A. 416.\n\n,(1) (1937) 65 I.A. 75.\n\nKORVI BANK v. UNll)N (Ramcswami, J.) 275\n\nbook at destination shall be evidence of complete delivery.\n\nIf the consignee does not himself attend to take delivery he must endorse on the receipt a request for delivery to the person to whom he wishes it made, and if the receipt is not produced, the delivery of the goods may, at the discretion of the railway company, be withheld until the person entitled in its op in on to receive them has given an indemnity to the satisfaction of the railway company.\" In the present case the plaintiff has not proved by proper evidence an assignment of the contract of carriage. In our opinion, the law on the point has been correctly stated by Bhagwati, J. in Shamji Bhanji & Co. v. North Western Rly. Co.('). It follows, therefore, that the plaintiff has no right to bring the present suit against the Union of India.\n\nCounsel for appellant has referred to the practice of merchants in treating a railway receipt as a symbol of goods and in making pledge of goods by pledge of railway receipts, but no such practice or custom has been alleged or proved on behalf of the plaintiff in the present case. In the absence of such allegation or proof it is not open to the Court to take any judicial notice of any such practice. Counsel for appellant also referred to possible inconven 'ence and hardship to merchants if such a practice is not judicially recognised, but the argument from inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure.\n\nIn Suttps v. Briggs('). Lord Birkenhead stated:\n\n\"The consequences of this view of s. 2 of the Gaming Act, 1835 will no doubt be extremely inconvenient to many persons. But this is not a matter proper to influence the House unless in a doubtful case affording foothold for balanced speculation as to the probable intention of the legislature.\" In the present case the language of s. 178 of the Contract Act is clear and explicit and if any hardship and inconvenience is felt it is for Parliament to take appropriate steps to amend the law and not for the courts to legislate under the guise of interpretation.\n\nFor the reasons expressed, we hold that Civil Appeal 474 of 1962 brought by the plaintiff-bank should be dismissed and Civil Appeal 475 of 1962 brought by the Union of Ind; a through the General Manager, Central Railway should be allowed with costs and the suit of the plaintiff-bank should be dismissed with costs throughout.\n\nORDER BY COURT In accordance with the majority Judgment Civil Appeal 474 of 1962 is allowed and Civil Appeal 475'of 1962 is dismissed, and the olaint'ff's suit is decreed with costs throughout.\n\n(') A.I.R. 1947 Bom. 169.\n\nI~ [192'!] I.A.C. 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["}}, {"text": "J. C. Bhatt", "label": "JUDGE", "start_char": 7326, "end_char": 7337, "source": "ner", "metadata": {"in_sentence": "J. C. Bhatt, B. R. Agarwala and H. K. Puri, for the appellants (in C.A. No.", "canonical_name": "J. C. Bhatt"}}, {"text": "B. R. Agarwala", "label": "LAWYER", "start_char": 7339, "end_char": 7353, "source": "ner", "metadata": {"in_sentence": "J. C. Bhatt, B. R. Agarwala and H. K. Puri, for the appellants (in C.A. No."}}, {"text": "H. K. Puri", "label": "LAWYER", "start_char": 7358, "end_char": 7368, "source": "ner", "metadata": {"in_sentence": "J. C. Bhatt, B. R. Agarwala and H. K. Puri, for the appellants (in C.A. No."}}, {"text": "Niren De", "label": "LAWYER", "start_char": 7460, "end_char": 7468, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General, N. D. Karkhanis, B.R.G.K. Achar, for R. N. Sachthey, for Respondent (in C.A. No."}}, {"text": "N. D. 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No."}}, {"text": "SUBBA RAO", "label": "JUDGE", "start_char": 7654, "end_char": 7663, "source": "ner", "metadata": {"in_sentence": "Judgment of SUBBA RAO, DAYAL and BACHAWAT JJ.", "canonical_name": "Subba Rao"}}, {"text": "DAYAL", "label": "JUDGE", "start_char": 7665, "end_char": 7670, "source": "ner", "metadata": {"in_sentence": "Judgment of SUBBA RAO, DAYAL and BACHAWAT JJ."}}, {"text": "BACHAWAT", "label": "JUDGE", "start_char": 7675, "end_char": 7683, "source": "ner", "metadata": {"in_sentence": "Judgment of SUBBA RAO, DAYAL and BACHAWAT JJ.", "canonical_name": "Bachawat"}}, {"text": "MUDHOLKAR", "label": "JUDGE", "start_char": 7745, "end_char": 7754, "source": "ner", "metadata": {"in_sentence": "was delivered by SUBBA RAO, J. The dissenting Opinion of MUDHOLKAR and RAMASWAMI JJ.", "canonical_name": "R. MUDHOLKAR"}}, {"text": "RAMASWAMI", "label": "JUDGE", "start_char": 7759, "end_char": 7768, "source": "ner", "metadata": {"in_sentence": "was delivered by SUBBA RAO, J. 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On October 4."}}, {"text": "Harshadrai Mohanlal & Co.", "label": "PETITIONER", "start_char": 7843, "end_char": 7868, "source": "ner", "metadata": {"in_sentence": "Harshadrai Mohanlal & Co., a firm doing business at Thana, Bombay, hereinafter called the firm, entrusted 4 boxes alleged to have contained menthol crystals to the then G.LP."}}, {"text": "October II, 1949", "label": "DATE", "start_char": 8116, "end_char": 8132, "source": "ner", "metadata": {"in_sentence": "On October II, 1949, the firm consigned 2 more such boxes to Okhla from Thana under 2 r1ilway receipts bearing Nos."}}, {"text": "Okhla", "label": "GPE", "start_char": 8174, "end_char": 8179, "source": "ner", "metadata": {"in_sentence": "On October II, 1949, the firm consigned 2 more such boxes to Okhla from Thana under 2 r1ilway receipts bearing Nos."}}, {"text": "Thana", "label": "GPE", "start_char": 8185, "end_char": 8190, "source": "ner", "metadata": {"in_sentence": "On October II, 1949, the firm consigned 2 more such boxes to Okhla from Thana under 2 r1ilway receipts bearing Nos."}}, {"text": "Court of the Civil Judge, Senior Devision. Thana", "label": "COURT", "start_char": 8928, "end_char": 8976, "source": "ner", "metadata": {"in_sentence": "As the railway failed to deliver the boxes, the Bank, as the endorsee of the said railway receipts for valuable consideration, filed Civil Suit No\n\n50 of 1950 in the Court of the Civil Judge, Senior Devision."}}, {"text": "Union of India", "label": "ORG", "start_char": 8990, "end_char": 9004, "source": "ner", "metadata": {"in_sentence": "Thana, against the Union of India through the General Manager, Central Railway, Bombay, for the recovery of Rs."}}, {"text": "February I, 1950", "label": "DATE", "start_char": 9222, "end_char": 9238, "source": "ner", "metadata": {"in_sentence": "The defendant in the written-statement averred that on February I, 1950, the railway company offered to deliver all the consignments to the Bank, but the latter wrongfully refused to take delivery of the same on the ground that the consignments were not identical to the ones consigned from Thana; it put the plaintiff to strict proof of the allegation that the consignments contained menthol crystals as alleged or that the aggregate value of the said consignments was Rs."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 10669, "end_char": 10686, "source": "ner", "metadata": {"in_sentence": "The appeal was heard by a Division Bench of the Bombay High Court, consisting of J. C. Shah and Gokhale, JJ."}}, {"text": "J. C. Shah", "label": "JUDGE", "start_char": 10702, "end_char": 10712, "source": "ner", "metadata": {"in_sentence": "The appeal was heard by a Division Bench of the Bombay High Court, consisting of J. C. Shah and Gokhale, JJ.", "canonical_name": "J. C. Bhatt"}}, {"text": "Gokhale", "label": "JUDGE", "start_char": 10717, "end_char": 10724, "source": "ner", "metadata": {"in_sentence": "The appeal was heard by a Division Bench of the Bombay High Court, consisting of J. C. Shah and Gokhale, JJ."}}, {"text": "Indian Contract Act", "label": "STATUTE", "start_char": 12303, "end_char": 12322, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 12335, "end_char": 12352, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 12361, "end_char": 12385, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 178", "label": "PROVISION", "start_char": 13143, "end_char": 13149, "source": "regex", "metadata": {"statute": null}}, {"text": "Goods Act, 1930", "label": "STATUTE", "start_char": 13207, "end_char": 13222, "source": "regex", "metadata": {}}, {"text": "Indian Contract Act, 1872", "label": "STATUTE", "start_char": 14368, "end_char": 14393, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s.103", "label": "PROVISION", "start_char": 14395, "end_char": 14400, "source": "regex", "metadata": {"linked_statute_text": "The Judicial Committee held that the railway receipts were instruments of title within the meaning of the D Indian Contract Act, 1872", "statute": "The Judicial Committee held that the railway receipts were instruments of title within the meaning of the D Indian Contract Act, 1872"}}, {"text": "English Factors Act, 1842", "label": "STATUTE", "start_char": 15380, "end_char": 15405, "source": "regex", "metadata": {}}, {"text": "British India", "label": "GPE", "start_char": 15421, "end_char": 15434, "source": "ner", "metadata": {"in_sentence": "It may be noticed at this stage that under the Contract Act before F it was amended in 1930 there was no definition of the expression \"documents of title\", but there was one in the Indian Factors Act (XX of 1844) which, with certain modifications, made the provisions of the English Factors Act, 1842, applicable to British India."}}, {"text": "llOBVI BANK.V. UNION", "label": "RESPONDENT", "start_char": 16287, "end_char": 16307, "source": "ner", "metadata": {"in_sentence": "llOBVI BANK.V. UNION (Sub/Ja Jlao, J.) '.il59\n\nits attention was called to the provisions of ss."}}, {"text": "Ja Jlao", "label": "JUDGE", "start_char": 16313, "end_char": 16320, "source": "ner", "metadata": {"in_sentence": "llOBVI BANK.V. UNION (Sub/Ja Jlao, J.) '.il59\n\nits attention was called to the provisions of ss."}}, {"text": "ss. 4 and 137", "label": "PROVISION", "start_char": 16380, "end_char": 16393, "source": "regex", "metadata": {"linked_statute_text": "the English Factors Act, 1842", "statute": "the English Factors Act, 1842"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 16401, "end_char": 16425, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s.137", "label": "PROVISION", "start_char": 16507, "end_char": 16512, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act, 1882", "label": "STATUTE", "start_char": 16520, "end_char": 16550, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s.4", "label": "PROVISION", "start_char": 16866, "end_char": 16869, "source": "regex", "metadata": {"linked_statute_text": "the Transfer of Property Act, 1882", "statute": "the Transfer of Property Act, 1882"}}, {"text": "Chapter and the sections of the Act shall be takem as part of the Indian Contract Act, 1872", "label": "STATUTE", "start_char": 16884, "end_char": 16975, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Parliament in enacting the Indian Sale of Goods Act, 1930", "label": "STATUTE", "start_char": 16985, "end_char": 17042, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s.178", "label": "PROVISION", "start_char": 17495, "end_char": 17500, "source": "regex", "metadata": {"linked_statute_text": "Parliament in enacting the Indian Sale of Goods Act, 1930", "statute": "Parliament in enacting the Indian Sale of Goods Act, 1930"}}, {"text": "s.137", "label": "PROVISION", "start_char": 17669, "end_char": 17674, "source": "regex", "metadata": {"linked_statute_text": "Parliament in enacting the Indian Sale of Goods Act, 1930", "statute": "Parliament in enacting the Indian Sale of Goods Act, 1930"}}, {"text": "Madras", "label": "GPE", "start_char": 18071, "end_char": 18077, "source": "ner", "metadata": {"in_sentence": "The facts in that case were as follows: The insolvents\" did a large business in groundnuts, which they purchased from the up-country growers; the nuts were then despatched by rail and arrived in Madras by one or other of the two railways, the Madras & Southern Maharatta Railway or the South Indian Railway."}}, {"text": "Madras & Southern Maharatta Railway", "label": "ORG", "start_char": 18119, "end_char": 18154, "source": "ner", "metadata": {"in_sentence": "The facts in that case were as follows: The insolvents\" did a large business in groundnuts, which they purchased from the up-country growers; the nuts were then despatched by rail and arrived in Madras by one or other of the two railways, the Madras & Southern Maharatta Railway or the South Indian Railway."}}, {"text": "South Indian Railway", "label": "ORG", "start_char": 18162, "end_char": 18182, "source": "ner", "metadata": {"in_sentence": "The facts in that case were as follows: The insolvents\" did a large business in groundnuts, which they purchased from the up-country growers; the nuts were then despatched by rail and arrived in Madras by one or other of the two railways, the Madras & Southern Maharatta Railway or the South Indian Railway."}}, {"text": "Madras Port Trust", "label": "ORG", "start_char": 18239, "end_char": 18256, "source": "ner", "metadata": {"in_sentence": "Under an arrangement between the said Railways and the Madras Port Trust, the consignments of nuts when received were deposited in the godowns of the."}}, {"text": "(1916) L.R. 43 I.A. 164", "label": "CASE_CITATION", "start_char": 19430, "end_char": 19453, "source": "regex", "metadata": {}}, {"text": "Ramdas Vithaldas Durbar", "label": "OTHER_PERSON", "start_char": 19549, "end_char": 19572, "source": "ner", "metadata": {"in_sentence": "J.(B(N)3SJl-4,\n\n(1965] 3 S.C.R.\n\nits earlier decision in Ramdas Vithaldas Durbar's case (') and all the relevant provisions which we have noticed eadier, came to the conclusion that there was a valid pledge of the goods rpresented by the receipts."}}, {"text": "s.178", "label": "PROVISION", "start_char": 20215, "end_char": 20220, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 102 and 103", "label": "PROVISION", "start_char": 20256, "end_char": 20271, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 137", "label": "PROVISION", "start_char": 20390, "end_char": 20396, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Propety Act, 1882", "label": "STATUTE", "start_char": 20404, "end_char": 20433, "source": "regex", "metadata": {}}, {"text": "s.4", "label": "PROVISION", "start_char": 20455, "end_char": 20458, "source": "regex", "metadata": {"linked_statute_text": "the Transfer of Propety Act, 1882", "statute": "the Transfer of Propety Act, 1882"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 20642, "end_char": 20646, "source": "regex", "metadata": {"linked_statute_text": "the Transfer of Propety Act, 1882", "statute": "the Transfer of Propety Act, 1882"}}, {"text": "Indian Sale of Goods Act, 1930", "label": "STATUTE", "start_char": 20666, "end_char": 20696, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 178", "label": "PROVISION", "start_char": 20749, "end_char": 20755, "source": "regex", "metadata": {"linked_statute_text": "the Indian Sale of Goods Act, 1930", "statute": "the Indian Sale of Goods Act, 1930"}}, {"text": "India", "label": "GPE", "start_char": 20868, "end_char": 20873, "source": "ner", "metadata": {"in_sentence": "On the construction of the expression \"person\" in s. 178 of the Contract Act, it was argued that the said expression took in only a mercantile agent and that the law in India was the same as in England."}}, {"text": "England", "label": "GPE", "start_char": 20893, "end_char": 20900, "source": "ner", "metadata": {"in_sentence": "On the construction of the expression \"person\" in s. 178 of the Contract Act, it was argued that the said expression took in only a mercantile agent and that the law in India was the same as in England."}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 22061, "end_char": 22085, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 22094, "end_char": 22111, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 178", "label": "PROVISION", "start_char": 22470, "end_char": 22476, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 178", "label": "PROVISION", "start_char": 23560, "end_char": 23566, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 178", "label": "PROVISION", "start_char": 24058, "end_char": 24064, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 178", "label": "PROVISION", "start_char": 24139, "end_char": 24145, "source": "regex", "metadata": {"statute": null}}, {"text": "(1965] 3 S.C.R.\n\n1", "label": "CASE_CITATION", "start_char": 25112, "end_char": 25130, "source": "regex", "metadata": {}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 25149, "end_char": 25166, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 30", "label": "PROVISION", "start_char": 26276, "end_char": 26281, "source": "regex", "metadata": {"statute": null}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 26296, "end_char": 26313, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 30", "label": "PROVISION", "start_char": 27320, "end_char": 27325, "source": "regex", "metadata": {"statute": null}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 27333, "end_char": 27350, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 53(1)", "label": "PROVISION", "start_char": 27413, "end_char": 27421, "source": "regex", "metadata": {"statute": null}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 27429, "end_char": 27446, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Subba Rae", "label": "JUDGE", "start_char": 27934, "end_char": 27943, "source": "ner", "metadata": {"in_sentence": "document in good faith\n\nMORVI BANK v. UNION (Subba Rae, J.)\n\nand for consideration, then, if such last mentioned transfer was by way of sale, the unpaid seller's right of lien or stoppage in transit is defeated, and, if such last mentioned transfer was by way of pledge or other _disposition for value, the unpaid seller's right of lien or stoppage in trap.", "canonical_name": "Subba Rao"}}, {"text": "s. 178", "label": "PROVISION", "start_char": 28699, "end_char": 28705, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 178", "label": "PROVISION", "start_char": 29300, "end_char": 29306, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 178", "label": "PROVISION", "start_char": 29532, "end_char": 29538, "source": "regex", "metadata": {"statute": null}}, {"text": "L.R. 61 I.A. 416", "label": "CASE_CITATION", "start_char": 30582, "end_char": 30598, "source": "regex", "metadata": {}}, {"text": "s. 180", "label": "PROVISION", "start_char": 32775, "end_char": 32781, "source": "regex", "metadata": {"statute": null}}, {"text": "October 6, 1949", "label": "DATE", "start_char": 33956, "end_char": 33971, "source": "ner", "metadata": {"in_sentence": "104, dated October 6, 1949, in its favour."}}, {"text": "October 4, 1949", "label": "DATE", "start_char": 35696, "end_char": 35711, "source": "ner", "metadata": {"in_sentence": "Ramaswami, J.\n\nWe regret we are unable to agree with the judgment pronounced by our learned brother Subba Rao J.\n\nOn October 4, 1949, Mis."}}, {"text": "Mis. Harshadrai Mohanlal & Co.", "label": "PETITIONER", "start_char": 35713, "end_char": 35743, "source": "ner", "metadata": {"in_sentence": "Ramaswami, J.\n\nWe regret we are unable to agree with the judgment pronounced by our learned brother Subba Rao J.\n\nOn October 4, 1949, Mis."}}, {"text": "October 11, 1949", "label": "DATE", "start_char": 35921, "end_char": 35937, "source": "ner", "metadata": {"in_sentence": "On October 11, 1949, the firm consigned 2 more boxes also alleged to have contained \"menthol crystal\" to Okhla from Thana railway station."}}, {"text": "Morvi Mercantile Bank Ltd.", "label": "ORG", "start_char": 36267, "end_char": 36293, "source": "ner", "metadata": {"in_sentence": "It is alleged that the Railway Receipts with regard to these six boxes were endored in favour of Morvi Mercantile Bank Ltd. (hereinafter referred to as the plaintiff-bank) against an advance of Rs."}}, {"text": "G.l.P. Railway", "label": "ORG", "start_char": 36438, "end_char": 36452, "source": "ner", "metadata": {"in_sentence": "The G.l."}}, {"text": "(1916) L.R. 43 I.A. 164", "label": "CASE_CITATION", "start_char": 36602, "end_char": 36625, "source": "regex", "metadata": {}}, {"text": "(1934) L.R. 61 I.A. 416", "label": "CASE_CITATION", "start_char": 36638, "end_char": 36661, "source": "regex", "metadata": {}}, {"text": "Civil Judge, Senior Division, Thafla", "label": "COURT", "start_char": 36802, "end_char": 36838, "source": "ner", "metadata": {"in_sentence": "50 of 1950 in the Court of the Civil Judge, Senior Division, Thafla, claiming a sum of Rs."}}, {"text": "January 15, 1953", "label": "DATE", "start_char": 37819, "end_char": 37835, "source": "ner", "metadata": {"in_sentence": "The Civil Judge accordingly dismissed the suit by a judgment and decree dated January 15, 1953."}}, {"text": "Scotland", "label": "GPE", "start_char": 41600, "end_char": 41608, "source": "ner", "metadata": {"in_sentence": "It was held by thee\n\nHouse of Lords that where goods are lodged in warehouses in Scotland a pledgee of the goods must, to make effective all real rights: which depend on the constructive delivery of the goods, give notice of the pledge to the warehouse-keeper."}}, {"text": "Factors Act 1889", "label": "STATUTE", "start_char": 41784, "end_char": 41800, "source": "regex", "metadata": {}}, {"text": "s. 5", "label": "PROVISION", "start_char": 41953, "end_char": 41957, "source": "regex", "metadata": {"linked_statute_text": "The Factors Act 1889", "statute": "The Factors Act 1889"}}, {"text": "Glasgow", "label": "GPE", "start_char": 42683, "end_char": 42690, "source": "ner", "metadata": {"in_sentence": "Goods were stored by G, a domiciled Englishman, in a bonded warehouse in Glasgow, transferred into the name of G as owner; and , he warehouse-keeper issued to G delivery orders showing that\n\n(') (1898) A.C. 616."}}, {"text": "Factors Act, 1889", "label": "STATUTE", "start_char": 43546, "end_char": 43563, "source": "regex", "metadata": {}}, {"text": "s. 9", "label": "PROVISION", "start_char": 43882, "end_char": 43886, "source": "regex", "metadata": {"linked_statute_text": "the Factors Act, 1889", "statute": "the Factors Act, 1889"}}, {"text": "Watson", "label": "OTHER_PERSON", "start_char": 43929, "end_char": 43935, "source": "ner", "metadata": {"in_sentence": "At pages 625 to 627 Lord Watson states:\n\n'I can see no reason to doubt that, by Scottish law as D well as English, the endorsement and handing over of delivery orders in security of a loan, along with a letter professing to hypothecate the goods themselves, is sufficient in law, and according to mercantile practice, to constitute a pledge of the documents of title, whatever may be the value and effect of the right so constituted."}}, {"text": "Atkinson", "label": "OTHER_PERSON", "start_char": 46719, "end_char": 46727, "source": "ner", "metadata": {"in_sentence": "At pages 843 and 847 of the Report Lord Atkinson states the law on the point as follows:\n\n\"As to the second question, it was not disputed that, according to the law of England, and indeed of Scotland."}}, {"text": "Hardwicke", "label": "OTHER_PERSON", "start_char": 47427, "end_char": 47436, "source": "ner", "metadata": {"in_sentence": "The example of constructive delivery frequently given is the delivery of the key of the store or house in which the goods have, been placed; but that is because, in the words of Lord Hardwicke, 'it is the way of coming at the possession, or to make use of the thing', Ward v. Turner\n\n(1751) 2 Yes."}}, {"text": "Parke B.", "label": "OTHER_PERSON", "start_char": 47937, "end_char": 47945, "source": "ner", "metadata": {"in_sentence": "And the delivery of a warrant such as those delivered to the respondent in the present case is, in the ordinary case, according to Parke B., no more than an acknowledgment by the warehouseman that the goods are deliverable to the person named therein or to any one he may appoint."}}, {"text": "Section 1", "label": "PROVISION", "start_char": 48697, "end_char": 48706, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 148", "label": "PROVISION", "start_char": 49019, "end_char": 49025, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 149", "label": "PROVISION", "start_char": 49408, "end_char": 49419, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 178", "label": "PROVISION", "start_char": 49662, "end_char": 49668, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 178", "label": "PROVISION", "start_char": 49766, "end_char": 49772, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 178", "label": "PROVISION", "start_char": 50526, "end_char": 50533, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 50568, "end_char": 50573, "source": "regex", "metadata": {"statute": null}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 50588, "end_char": 50605, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 178", "label": "PROVISION", "start_char": 50615, "end_char": 50626, "source": "regex", "metadata": {"statute": null}}, {"text": "II have the meanings assigned to them in the Indian Sale of Goods Act, 1930", "label": "STATUTE", "start_char": 51196, "end_char": 51271, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Rumaswami", "label": "JUDGE", "start_char": 51297, "end_char": 51306, "source": "ner", "metadata": {"in_sentence": "l!ORVI BANK v. UNION (Rumaswami, J.) 271\n\nSection 30 of the Indian Sale of Goods Act provides as follows:\n\n\"30(1) Where a person, having sold goods, continues or is in possession of the goods or of the documents of title to the goods, the delivery or transfer by that person or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge or other disposition thereof to any person receiving the same in good faith and without 110tice of the previous sale shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the•same."}}, {"text": "Section 30", "label": "PROVISION", "start_char": 51317, "end_char": 51327, "source": "regex", "metadata": {"linked_statute_text": "II have the meanings assigned to them in the Indian Sale of Goods Act, 1930", "statute": "II have the meanings assigned to them in the Indian Sale of Goods Act, 1930"}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 51342, "end_char": 51359, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 19", "label": "PROVISION", "start_char": 52600, "end_char": 52610, "source": "regex", "metadata": {"statute": null}}, {"text": "section 19A", "label": "PROVISION", "start_char": 52614, "end_char": 52625, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhatt", "label": "OTHER_PERSON", "start_char": 53285, "end_char": 53290, "source": "ner", "metadata": {"in_sentence": "On behalf of the appellants Mr. Bhatt placed strong reliance upon the decision of the Judicial Committee in Official Assignee of Madras v. Mercantile Bank c, f India, Limited(') in which it was held that a railway receipt, providing that delivery of the consigned goods is to be made upon the receipt being given up by the consignee or by a person whom he names by endorsement thereon, is a document of title within the meaning of the Indian Contract Act, 1872, (s. 178 for which a new section was substituted by the amending Act IV of 1930), and a pledge of a railway receipt operated under the repealed section as a pledge of the goods."}}, {"text": "Indian Contract Act, 1872", "label": "STATUTE", "start_char": 53688, "end_char": 53713, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 178", "label": "PROVISION", "start_char": 53716, "end_char": 53722, "source": "regex", "metadata": {"linked_statute_text": "the Indian Contract Act, 1872", "statute": "the Indian Contract Act, 1872"}}, {"text": "s. 178", "label": "PROVISION", "start_char": 54024, "end_char": 54030, "source": "regex", "metadata": {"linked_statute_text": "the Indian Contract Act, 1872", "statute": "the Indian Contract Act, 1872"}}, {"text": "s. 178", "label": "PROVISION", "start_char": 54280, "end_char": 54286, "source": "regex", "metadata": {"linked_statute_text": "the Indian Contract Act, 1872", "statute": "the Indian Contract Act, 1872"}}, {"text": "s. 178", "label": "PROVISION", "start_char": 54443, "end_char": 54449, "source": "regex", "metadata": {"linked_statute_text": "the Indian Contract Act, 1872", "statute": "the Indian Contract Act, 1872"}}, {"text": "Amending Act, 1930", "label": "STATUTE", "start_char": 54474, "end_char": 54492, "source": "regex", "metadata": {}}, {"text": "s. 30", "label": "PROVISION", "start_char": 54868, "end_char": 54873, "source": "regex", "metadata": {"linked_statute_text": "the Amending Act, 1930", "statute": "the Amending Act, 1930"}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 54888, "end_char": 54905, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 178", "label": "PROVISION", "start_char": 55104, "end_char": 55110, "source": "regex", "metadata": {"linked_statute_text": "the Amending Act, 1930", "statute": "the Amending Act, 1930"}}, {"text": "s. 19", "label": "PROVISION", "start_char": 55219, "end_char": 55224, "source": "regex", "metadata": {"linked_statute_text": "the Amending Act, 1930", "statute": "the Amending Act, 1930"}}, {"text": "s. 19A", "label": "PROVISION", "start_char": 55228, "end_char": 55234, "source": "regex", "metadata": {"linked_statute_text": "the Amending Act, 1930", "statute": "the Amending Act, 1930"}}, {"text": "s. 30", "label": "PROVISION", "start_char": 55358, "end_char": 55363, "source": "regex", "metadata": {"linked_statute_text": "the Amending Act, 1930", "statute": "the Amending Act, 1930"}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 55378, "end_char": 55395, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Parker", "label": "OTHER_PERSON", "start_char": 55674, "end_char": 55680, "source": "ner", "metadata": {"in_sentence": "It was held by Lord Parker that the railway receipts are instruments of title within the meaning of the Indian Contract Ad, 1872, s. 103, and that the sellers were therefore not entitled to stop the goods in transit except upon payment or tender to the pledgees of the advances made by them."}}, {"text": "s. 103", "label": "PROVISION", "start_char": 55784, "end_char": 55790, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 103", "label": "PROVISION", "start_char": 56090, "end_char": 56096, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 178", "label": "PROVISION", "start_char": 56286, "end_char": 56292, "source": "regex", "metadata": {"statute": null}}, {"text": "Alderson. B.", "label": "OTHER_PERSON", "start_char": 57407, "end_char": 57419, "source": "ner", "metadata": {"in_sentence": "It was observed by Alderson."}}, {"text": "Ellenborough", "label": "OTHER_PERSON", "start_char": 57511, "end_char": 57523, "source": "ner", "metadata": {"in_sentence": "B. in Thompson v. Dominy (') as follows:\n\n\"This is another instance of the confusion, as Lord Ellenborough in Waring v. Cox expresses it, which 'has arisen from similitudinous reasoning upon this subject'."}}, {"text": "Bills of Lading Act, 1855", "label": "STATUTE", "start_char": 58171, "end_char": 58196, "source": "regex", "metadata": {}}, {"text": "is only by reason of the enactment of the Bills of Lading Act, 1855", "label": "STATUTE", "start_char": 58352, "end_char": 58419, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 58809, "end_char": 58813, "source": "regex", "metadata": {"linked_statute_text": "It is only by reason of the enactment of the Bills of Lading Act, 1855", "statute": "It is only by reason of the enactment of the Bills of Lading Act, 1855"}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 58827, "end_char": 58844, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 103", "label": "PROVISION", "start_char": 58940, "end_char": 58946, "source": "regex", "metadata": {"linked_statute_text": "Sale of Goods Act", "statute": "Sale of Goods Act"}}, {"text": "s. 178", "label": "PROVISION", "start_char": 58980, "end_char": 58986, "source": "regex", "metadata": {"linked_statute_text": "Sale of Goods Act", "statute": "Sale of Goods Act"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 59414, "end_char": 59418, "source": "regex", "metadata": {"linked_statute_text": "Sale of Goods Act", "statute": "Sale of Goods Act"}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 59439, "end_char": 59456, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 103 and 178", "label": "PROVISION", "start_char": 59501, "end_char": 59516, "source": "regex", "metadata": {"linked_statute_text": "Sale of Goods Act", "statute": "Sale of Goods Act"}}, {"text": "Art. 179", "label": "PROVISION", "start_char": 59618, "end_char": 59626, "source": "regex", "metadata": {"linked_statute_text": "Sale of Goods Act", "statute": "Sale of Goods Act"}}, {"text": "Factors Act 1889", "label": "STATUTE", "start_char": 59848, "end_char": 59864, "source": "regex", "metadata": {}}, {"text": "Wright", "label": "OTHER_PERSON", "start_char": 60566, "end_char": 60572, "source": "ner", "metadata": {"in_sentence": "This was the position in English law, except in the case of bills of lading the transfer of which by the Law Merchant operated as a transfer af the possession of as well as the property in the goods as observed by Lord Wright in Official Assignee of Madras\n\nv. Mercantile Bank of India, Limited('} at page 422."}}, {"text": "s. 137", "label": "PROVISION", "start_char": 60829, "end_char": 60835, "source": "regex", "metadata": {"linked_statute_text": "the Factors Act 1889", "statute": "the Factors Act 1889"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 60843, "end_char": 60867, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 30 and 53", "label": "PROVISION", "start_char": 61227, "end_char": 61240, "source": "regex", "metadata": {"statute": null}}, {"text": "Sale of Goods Act, 1930", "label": "STATUTE", "start_char": 61256, "end_char": 61279, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 178", "label": "PROVISION", "start_char": 61285, "end_char": 61291, "source": "regex", "metadata": {"linked_statute_text": "Sale of Goods Act, 1930", "statute": "Sale of Goods Act, 1930"}}, {"text": "Contract Act, 1872", "label": "STATUTE", "start_char": 61299, "end_char": 61317, "source": "regex", "metadata": {}}, {"text": "s. 74", "label": "PROVISION", "start_char": 61556, "end_char": 61561, "source": "regex", "metadata": {"linked_statute_text": "the Contract Act, 1872", "statute": "the Contract Act, 1872"}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 61578, "end_char": 61590, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Negotiable Instruments Act", "label": "STATUTE", "start_char": 61873, "end_char": 61899, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "(1934) L.R. 61 I.A. 416", "label": "CASE_CITATION", "start_char": 63327, "end_char": 63350, "source": "regex", "metadata": {}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 64058, "end_char": 64066, "source": "ner", "metadata": {"in_sentence": "In our opinion, the law on the point has been correctly stated by Bhagwati, J. in Shamji Bhanji & Co. v. North Western Rly."}}, {"text": "Union of India", "label": "RESPONDENT", "start_char": 64217, "end_char": 64231, "source": "ner", "metadata": {"in_sentence": "It follows, therefore, that the plaintiff has no right to bring the present suit against the Union of India.", "canonical_name": "Union of India"}}, {"text": "Birkenhead", "label": "OTHER_PERSON", "start_char": 64957, "end_char": 64967, "source": "ner", "metadata": {"in_sentence": "Lord Birkenhead stated:\n\n\"The consequences of this view of s. 2 of the Gaming Act, 1835 will no doubt be extremely inconvenient to many persons."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 65011, "end_char": 65015, "source": "regex", "metadata": {"statute": null}}, {"text": "Gaming Act, 1835", "label": "STATUTE", "start_char": 65023, "end_char": 65039, "source": "regex", "metadata": {}}, {"text": "s. 178", "label": "PROVISION", "start_char": 65308, "end_char": 65314, "source": "regex", "metadata": {"linked_statute_text": "the Gaming Act, 1835", "statute": "the Gaming Act, 1835"}}, {"text": "Union of Ind", "label": "PETITIONER", "start_char": 65698, "end_char": 65710, "source": "ner", "metadata": {"in_sentence": "For the reasons expressed, we hold that Civil Appeal 474 of 1962 brought by the plaintiff-bank should be dismissed and Civil Appeal 475 of 1962 brought by the Union of Ind; a through the General Manager, Central Railway should be allowed with costs and the suit of the plaintiff-bank should be dismissed with costs throughout.", "canonical_name": "Union of India"}}]}
{"document_id": "1965_3_276_282_EN", "year": 1965, "text": "GOPISETTI VENKATARATNAM AND OTHERS A v.\n\nTHE VIJAYAWADA MUNICIPALITY AND OTHERS\n\nMarch 5, 1965\n\n[K. SUBBA RAo, J. C. SHAH AND R. S. BACHAWAT, JJ.J Indian _Electricity Act, 1910 (At 9 of 1910), ss. 21 (2)-Agreement betu:een Li'censee an~ Co!lS'U; mers-Supply of energy at \"current official scale of rates' -Meaning of-Enhancement of rate-Sanction of State Government, if necessary.\n\nThe Government of Madras issued a licence to the respondent- Municipality, under s.3(1) of the Indian Electricity Act, 1910, for the supply of ele.ctric energy within its municipal limits at rates not exceeding the maximum charges given in the licence. The appellants, some consumers of the electric energy, entered into agreements with the Municipality for the supply and agreed to pay the \"current official scale of rates\". The rates were increased by resolutions of the Municipality twice and on the second occasion the appellants filed a representative suit for a declaration that the later resolution was illegal, and for an injunction restraining the Municipality from collecting charges at the new rates. The trial court dismissed the suit and the dismissal was confirmed on ppeal by the High Court. In appeal by special leave the appellants contended that (i) the rates agreed between the consumers and the Municipality could not be unilaterally altered and increased by the Municipality to the prejudice of the consumers and, therefore, the impugned resolution was invalid and unenforceable; and (ii) as the impugned resolution was passed without obtaining the previous sanction of the State Gov- ernment under s.'21 (2)-' of the Act, it was void.\n\nHELD: (i) The consumers were under a contractual liability to pay the enhanced rates covered by the impugned resolution.\n\nUnder ss. 22 and 23 of the Act the Municipality cannot discriminate tetween consumers in the matter of rates chargeable for the energy supplied. Unless the Municipality enters into agreement with the consumer. enabling it to charge him at a rate fixed from time to time, it would be difficult for the Municipality to maintain equality of treatment between the consumers. Tkat difficulty can be avoided if there is a term in the agreement executed by every consumer that he will pay the official rate fixed by the Municipality from time to time subject to the maximum fixed by the licence. Further, a public body in supplying electric energy to different consumeTs cannot run the risk of incurring loss by agreeing to fixed rates, for the Government may increase the licence fee as had been done in the instant case, or there may be a rise in the cost of distribution. [280 A-DJ Therefore, having regard to the entire document and the surrounding circumstances, the words \"current official scale of rates\" n the agreement mean the official scale of rates current or prevalent from time to time during the currency of the agreement. [281 CJ\n\n(ii) No sanction of the State Government was necessary for enhancing the rates.\n\nThere was no alteration of any condition of the agreement within the meaning of s. 21(2) of the Act. The consumers had agreed to pay the rates that would be fixed from time to time, and if that term was a condition within the meaning of that section, there was no change at all in that condition, for the change in the rates was not in derogation of the condition but in terms of it. [282 A-Bl\n\nA CIVIL APPELLATE JuRiSDICTION: Civil Appeal No. 69 of 1964.\n\nAppeal by special leave from the judgment and decree dated October 10, 1961, of the Andhra Pradesh High Court in Second Appeal No. 872 of 1958.\n\nA. V. Viswanatha Sastri, K. Rajendra Chaudhuri and K.\n\nB Chaudhuri, for the appellants.\n\nS. V. Gupte, Solicitor-General, and T. Satyanarayana, for respondent No. I.\n\nT.V.R. Tatachari and B.R.G.K. Achar, for respondent No. 2.\n\nThe Judgment of the Court was delivered by Sobba Rao, J. On November 22, 1927, the Government of Madras, in exercise of its powers under s. 3(1) of the Indian Electricity Act, 1910 (IX of 1910), here'nafter called the Act, issued a licence to the Bezwada (now Vijayawada) Municipal Council for the supply of electric energy within the municipal limits of Bezwada at rates not exceeding the maximum charges given in the third annexure to the said licence. The appellants, who are some of the consumers of electric energy for domestic and industrial purposes, entered into agreements with the licensee for the supply of electric energy to them for domestic, industrial and other purposes, agreeing to pay the current official scale of rates. On December 13, 1940, the Municipality passed a resolution bringing into force new rates for the supply of electric energy from April 1, 1940. The consumers paid the rates so fixed till the year 1956. On April 30, 1956, the Municipal Council passed another resolution enhancing the rates fro'Il 1-4-1956. The appellants filed a representative suit against the Vijayawada Municipality in the Court of the District Munsif, Vijayawada, for a declaration that the sa.id resolution dated April 30, 1956, passed by the Municipal Council was illegal, invalid and unenforceable and for an injunction restraining the said Mun'cipality from collecting charges from the consumers of electric energy in the licensee's area at the new revised rates in , pursuance of the l, m.pugned resolution. The learned District Munsif held that the demand of enhanced rate was legal and valid and dismissed the su; t. On appeal, the learned Subordinate Judge held that the levy from the date of the said resolution was good, but it could not be given retrospective operatioq. He further held that the claim for duty at half an anna per unit was invalid. In the result he modified the decree of the District Munsif. On a further appeal, a Division Bench of the Andhra Pradesh High Comt confirmed the decree of the Subordinate Judge. By special leave the present appeal has been filed in this Court.\n\nMr. A.V. Viswanatha Sastri, learned counsel for the appellants raised before us the following two cuntentions: (1) The rates\n\nreed upon between the cnsumers and the Muniipaliy cannot be unilaterally altered and mcreased by the Mumc1pahty to the prejudice of the consumers and, therefore, the said. resolution qatec1\n\nApril 30, 1956, was invalid and unenforceable; and (2) as the said resolution was passed without obtaining the previous sanction of the State Government under s. 21(2) of the Act, it was void for that reason also.\n\nThe first contention turns upon the relevant clauses of the agreement entered into between the Municipal Council and the consumers. Ex. B-4 is one such agreement dated May 27, 1932, between the Municipality and one of the appellants herein. The material clauses of the agreement read:\n\nPara, IV. The consumer shall pay to the licensee for all electrical energy so supplied at the rates and in accordance with the terms, given in the l; censee's Current Official Scale of rates and the signing of this Agreement is held to imply. con, currence in the terms of the said . Scales of rates.\n\nProvided that the minimum rates as specified therein shall be paid irrespective of whether energy to the extent has been consumed or not.\n\nPara, V. A consumer under this Agreement is required to state (see Schedule) under which of the rates set out in the licensee's Official Scale of energy Rates, he desires to be charged.\n\nPara, X. This Agreement shall be read and construed as subject in all respects to the provisions of the Bezwada Municipal Electric Licence, 1927, and to the provisions of the Indian Electricity Act 1910, and of any modification or re-enactment thereof for the time being in force thereunder so far as the same respectively may be applicable. The supply of electrical energy under this agree ment is subject to following among other provisions of law, namely: - • • • • The schedule above referred to.\n\n(2) Purposes to which the supply is to be given, and in the\n\ncase of domestic supply under which rate to be charg- G ed, as referred to in paragraph V:\n\n(a) (Supply) Domestic Purposes.\n\n(b) (Rate) Rs. 0-6-0 per ,µnit.\n\n(3) Maximum electrical power required by the consumer:\n\n0--54 K.W.\n\n(4) Minimum monthly charge: Rs. 2-8-0 in accordance with (a) class rate in the Schedule of Rates.\n\nThe Schedule of Rates mentioned in this agreement presumably refers to scale of rates fixed by the resolution of the Municipality.\n\nThe conflicting arguments centre on the question whether the words \"current official scale of rates\" in para. IV relate to the scale of rates current on the date when the agreement was enred into\n\nVENKATARATNAM v. MUNICIPALITY (Subba Jlao, J.) 179\n\nor refer to the scale of rates current from time to time in accordance with the resolution passed by the Municipality. The expres sion \"current\" means \"vogue or prevalent\": and \"current rate\" may mean the rate obtaining at a particular time or at a future time or from time to time. The term goes well with the present, future and recurrent. It is capable of different meanings depending upon !he context or setting in which it appears. As the meaning of the word is ambiguous, it is legitimate, iJ1 order to ascertain its true mean; ng, not only to study the document as a whole but also to ascertain its meaning from the circumstances whereunder the said agreement came into existence. Under para. X of the agreement the said agreement shall be subject to the provisions of the licence and the provision of the Indian Electricity Act, 1940, that is to say the said provisions are incorporated by reference into this agreement. Under the licence the licensee is precluded from charging rates higher than those prescribed thereunder. On April 1, 1940, the Electricity Department of the Vijayawada Municipality prepared a document styled as \"Conditions and Rates of Supply\". It does not contain any statutory rules, but only administrative directions in regard to providing, inter alia. for the method of entering into agreements and for charging rates for the energy supplied. This embodies the administrative practice of the Municipality in the matter of charging rates for the energy supplied. Paragraph 15 thereof, under the heading \"Method of charging for current''. reads:\n\n\"The price and method of charging for current supplied shall be such as may from time to time be fixed by the licensee in accordance with the prov; sions of the Act and of his licence, or such as may be made subject of special agreement between the consumers and the licensee.\"\n\nThis makes a distinction between the official rate and the contrac tual rate. The official rate is that fixed by the licersee from time to time and the contractual rate is that fixed by special agreement between the parties. It may be assumed that th's dual method is followed by the Municipality in the matter of entering into agree ments. The form of application prescribed for the supply of electric energy contains the following clause:\n\n\"I agree to pay for the said energy, service connection and other dues including the deposit of such security as may be demanded in accordance w'th the scale of rates and the rules of the licence.\" The scale of rates in the context 1!1eans the official .scae o~ rate~\n\nthat may be fixed by the Municipality. When an apphcatl?n 1s filed an obligation is imposed under s.22 ?f the At on th~ licensee to supply energy, except in so far as 1s otherwise provided by the terms and condit'ons of the licence, on the s.ame erms. as . th?Se on which any other person in the same area 1s en!Itled m sllllilar\n\ncircumstances to corresponding supply. Section 23 of the Act says that a licensee shall not, in making any agreement for the supply of\n\ne!lergy, show undue preference to any person. The combined operat10n of these prov1s10ns 1s that the licensee cannot discriminate between the applicants in the matter, among others, of rates chargeable for the energy supplied. Unless the Municipality enters into an agreement with a consumer enabling it tq charge him at a rate fixed by it from time to time, it would be very difficult for the Municipality to maintain equality of treatment between the consumers in the matter of rates. To illustrate, if under certain agreement a rate obtaining at a particular date is agreed upon and the tate is binding on the Mun'cipality even if it is raised later on, the\n\nMunicipality may be guilty of discrimination which it is asked to avoid by statute if it charges other consumers at a higher rate. This difficulty can be avo'ded if there is a term in the agreement executed by every consumer that he wi.11 pay the official rate fixed by the Municipality from time to time subject to the maximum fixed by the licence. That apart, a public body like the Municipality in supplying energy to different consumers cannot run the risk of incurring loss by agreeing to fixed rates, for the Government may increase the licence fee, as it has done in the present case, or there may be a rise in the cost of distribution. On the other hand, if the term in the agreement is flexible to meet the said eventualities, the maintenance of continuous supply of electric energy may be assured without any loss to the public body. The circumstances obtaining at the time when the agreements between the consumers and the Municipality were entered into were these: The licensee had power to fix the rates subject to the maximum prescribed by the Government. The administrative' directions provided for charging for the current supplied at rates that may be fixed from time to time. The Municipality was in practice fixing the rates from time to time having regard to the relevant circumstances. The said rates fixed by the Municipality from time to time were the \"Official Scale of Rates\". The consumers applied to the Municipality for supply of energy, agreeing to pay for the energy supplied at the scale of rates fixed by the Municipality.\n\nWith this background if we look at paragraphs IV and V of Ex.B-4 the meaning of the expression \"current official scale of rates\" will be clear. Paragraph IV speaks of \"current official scale of rates\" whereas para. V mentions \"official scale of energy rates\". These two paragraphs bring out the distinction between the official scale of rates and the official scale of energy rates: the former refers to the scale of rates maintained by the Municipality as modified from time to t'me by appropriate resolutions, and the latter refers to the different rates payable in respect of energy supplied for different purposes. Under para. IV the consumer specifically agreed to abide by the official scale of rates. If the intention of the parties is tha.t the consumer shall pay only the scale of energy rates obtaining at the time the agreement is entered into, there is no necessity for this\n\nspecific agreemeent, for para. V serves that purpose. On the other hand, the said express condition and the use of the word \"current\" make it clear that the consumer agrees to pay at the official scale\n\nof rates current from time to time. The adjective \"current\" will become a surplusage, if the intention is to pay the rates obtaining at the time the agreement is entered into, for the agreement itself gives the ex; sting rates. The use of the adjective \"current\" emphasizes the fact that the official scale of rates is not the existing rates, but the scale of rates current from time to time. We have, therefore, on a reasonable construction of the ambiguous expression \"current\" having regard to the entire document\" and the surrounding circumstances, come to the conclusion that the words \"current official scale of rates\" in para. IV of the agreement mean the official scale of rates current or prevalent from time to time during the currency of the agreement. If so, it follows that the appellants were under a contractual liability to pay the enhanced rates covered by the impugned resolution.\n\nThe next question turns upon s. 21(2) of the Act, which, as it then stood read:\n\n\"Subject to the provisions of sub-section (!), a licensee may, with the previous sanction of the State Government given after consulting the local authority, make conditions not inconsistent with this Act or with his licence or with any rules made under this Act, to regulate his relations with persons who are or intend to become consumers, and may with the like sanction given after the like consultation add to or alter or amend any such cond'tions; and any conditions made by a licensee without such sanction shall be null and void.\"\n\nUnder this sub-section the licensee cannot make conditions to regulate his relations with the consumers or amend any such conditions without the sanction of the State Government. Mr. Viswanatha Sastri argued that to enhance the rates was to alter a condition within the meaning of sub-s. (2) of s. 21 of the Act and as admittedly the sanction of the State Government was not obtained before such alteration, the said resolution was void. The learned Solicitor General contended that s. 21 (2) of the Act was a general provision relating to conditions, whereas s. 23 thereof was a specific provision in regard to fixing of rates and that s. 23 would, therefore, prevail over s. 21 and that s. 23 did not prescribe the sanction of the Government as a condition precedent for fixing the rates, Mr. Tatachari, while supporting this argument, added that on the interpretation of para. IV of the agreement suggested by the respondents there was no alteration in the conditions at all and, therefore, there was no scope for invoking s. 21 of the Act It is not necessary to express our opin'on in this case on the qestion whether s .. 23 xcludes the operation of s. 21(2) of the Ac_t m the matter of fixation f.rates, for we are satisfied that there 1s no alteration of any cond1Uon of\n\nthe agreement within the meaning of s. 21(2) thereof. We have held that under para. IV of the agreement that was enteroo into bel\\\".een\n\nthe consumers and the licensee, the consumers agreed to pay the rates that were fixed by the Mun; cipality from time to time. If the said term was a condition within the meaning of s. 21(2) of the Act, there was no change at all in that condition, for the change.in the rates was not in derogation of the condition but in terms of _it. To state it differently, the same condition embod'ed in para: IV of the agreement continued to operate between the parties even after the rates were enhanced under the impugned resolution. Therefore, no sanction of the State Government was necessary for enhancing the rates.\n\nNo other point was raised before us. In the result, the appeal fails and is dismissed with one set of costs.\n\n' Appeal dismissed.", "total_entities": 56, "entities": [{"text": "GOPISETTI VENKATARATNAM AND OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "GOPISETTI VENKATARATNAM AND OTHERS", "offset_not_found": false}}, {"text": "THE VIJAYAWADA MUNICIPALITY AND OTHERS", "label": "RESPONDENT", "start_char": 41, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "THE VIJAYAWADA MUNICIPALITY AND OTHERS", "offset_not_found": false}}, {"text": "March 5, 1965", "label": "DATE", "start_char": 81, "end_char": 94, "source": "ner", "metadata": {"in_sentence": "GOPISETTI VENKATARATNAM AND OTHERS A v.\n\nTHE VIJAYAWADA MUNICIPALITY AND OTHERS\n\nMarch 5, 1965\n\n[K. SUBBA RAo, J. C. SHAH AND R. S. BACHAWAT, JJ.J Indian _Electricity Act, 1910 (At 9 of 1910), ss."}}, {"text": "K. SUBBA RAo, J.", "label": "JUDGE", "start_char": 97, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 114, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ", "label": "JUDGE", "start_char": 126, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Electricity Act, 1910", "label": "STATUTE", "start_char": 155, "end_char": 176, "source": "regex", "metadata": {}}, {"text": "ss. 21", "label": "PROVISION", "start_char": 193, "end_char": 199, "source": "regex", "metadata": {"linked_statute_text": "Electricity Act, 1910", "statute": "Electricity Act, 1910"}}, {"text": "Government of Madras", "label": "ORG", "start_char": 386, "end_char": 406, "source": "ner", "metadata": {"in_sentence": "The Government of Madras issued a licence to the respondent- Municipality, under s.3(1) of the Indian Electricity Act, 1910, for the supply of ele.ctric energy within its municipal limits at rates not exceeding the maximum charges given in the licence."}}, {"text": "s.3(1)", "label": "PROVISION", "start_char": 463, "end_char": 469, "source": "regex", "metadata": {"linked_statute_text": "Electricity Act, 1910", "statute": "Electricity Act, 1910"}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 477, "end_char": 505, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 22 and 23", "label": "PROVISION", "start_char": 1768, "end_char": 1781, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21(2)", "label": "PROVISION", "start_char": 3063, "end_char": 3071, "source": "regex", "metadata": {"statute": null}}, {"text": "October 10, 1961", "label": "DATE", "start_char": 3499, "end_char": 3515, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and decree dated October 10, 1961, of the Andhra Pradesh High Court in Second Appeal No."}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 3524, "end_char": 3549, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and decree dated October 10, 1961, of the Andhra Pradesh High Court in Second Appeal No."}}, {"text": "A. V. Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 3585, "end_char": 3608, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, K. Rajendra Chaudhuri and K.\n\nB Chaudhuri, for the appellants.", "canonical_name": "A. V. Viswanatha Sastri"}}, {"text": "K. Rajendra Chaudhuri", "label": "LAWYER", "start_char": 3610, "end_char": 3631, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, K. Rajendra Chaudhuri and K.\n\nB Chaudhuri, for the appellants."}}, {"text": "K.\n\nB Chaudhuri", "label": "LAWYER", "start_char": 3636, "end_char": 3651, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, K. Rajendra Chaudhuri and K.\n\nB Chaudhuri, for the appellants."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 3674, "end_char": 3685, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-General, and T. Satyanarayana, for respondent No."}}, {"text": "T. Satyanarayana", "label": "LAWYER", "start_char": 3710, "end_char": 3726, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-General, and T. Satyanarayana, for respondent No."}}, {"text": "T.V.R. Tatachari", "label": "LAWYER", "start_char": 3751, "end_char": 3767, "source": "ner", "metadata": {"in_sentence": "I.\n\nT.V.R. Tatachari and B.R.G.K. Achar, for respondent No."}}, {"text": "B.R.G.K. Achar", "label": "LAWYER", "start_char": 3772, "end_char": 3786, "source": "ner", "metadata": {"in_sentence": "I.\n\nT.V.R. Tatachari and B.R.G.K. Achar, for respondent No."}}, {"text": "Sobba Rao", "label": "JUDGE", "start_char": 3854, "end_char": 3863, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sobba Rao, J. On November 22, 1927, the Government of Madras, in exercise of its powers under s. 3(1) of the Indian Electricity Act, 1910 (IX of 1910), here'nafter called the Act, issued a licence to the Bezwada (now Vijayawada) Municipal Council for the supply of electric energy within the municipal limits of Bezwada at rates not exceeding the maximum charges given in the third annexure to the said licence."}}, {"text": "November 22, 1927", "label": "DATE", "start_char": 3871, "end_char": 3888, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sobba Rao, J. On November 22, 1927, the Government of Madras, in exercise of its powers under s. 3(1) of the Indian Electricity Act, 1910 (IX of 1910), here'nafter called the Act, issued a licence to the Bezwada (now Vijayawada) Municipal Council for the supply of electric energy within the municipal limits of Bezwada at rates not exceeding the maximum charges given in the third annexure to the said licence."}}, {"text": "s. 3(1)", "label": "PROVISION", "start_char": 3948, "end_char": 3955, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 3963, "end_char": 3991, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bezwada", "label": "GPE", "start_char": 4058, "end_char": 4065, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sobba Rao, J. On November 22, 1927, the Government of Madras, in exercise of its powers under s. 3(1) of the Indian Electricity Act, 1910 (IX of 1910), here'nafter called the Act, issued a licence to the Bezwada (now Vijayawada) Municipal Council for the supply of electric energy within the municipal limits of Bezwada at rates not exceeding the maximum charges given in the third annexure to the said licence."}}, {"text": "December 13, 1940", "label": "DATE", "start_char": 4554, "end_char": 4571, "source": "ner", "metadata": {"in_sentence": "On December 13, 1940, the Municipality passed a resolution bringing into force new rates for the supply of electric energy from April 1, 1940."}}, {"text": "April 1, 1940", "label": "DATE", "start_char": 4679, "end_char": 4692, "source": "ner", "metadata": {"in_sentence": "On December 13, 1940, the Municipality passed a resolution bringing into force new rates for the supply of electric energy from April 1, 1940."}}, {"text": "April 30, 1956", "label": "DATE", "start_char": 4755, "end_char": 4769, "source": "ner", "metadata": {"in_sentence": "On April 30, 1956, the Municipal Council passed another resolution enhancing the rates fro'Il 1-4-1956."}}, {"text": "1-4-1956", "label": "DATE", "start_char": 4846, "end_char": 4854, "source": "ner", "metadata": {"in_sentence": "On April 30, 1956, the Municipal Council passed another resolution enhancing the rates fro'Il 1-4-1956."}}, {"text": "Vijayawada Municipality", "label": "ORG", "start_char": 4911, "end_char": 4934, "source": "ner", "metadata": {"in_sentence": "The appellants filed a representative suit against the Vijayawada Municipality in the Court of the District Munsif, Vijayawada, for a declaration that the sa.id resolution dated April 30, 1956, passed by the Municipal Council was illegal, invalid and unenforceable and for an injunction restraining the said Mun'cipality from collecting charges from the consumers of electric energy in the licensee's area at the new revised rates in , pursuance of the l, m.pugned resolution."}}, {"text": "Court of the District Munsif, Vijayawada", "label": "COURT", "start_char": 4942, "end_char": 4982, "source": "ner", "metadata": {"in_sentence": "The appellants filed a representative suit against the Vijayawada Municipality in the Court of the District Munsif, Vijayawada, for a declaration that the sa.id resolution dated April 30, 1956, passed by the Municipal Council was illegal, invalid and unenforceable and for an injunction restraining the said Mun'cipality from collecting charges from the consumers of electric energy in the licensee's area at the new revised rates in , pursuance of the l, m.pugned resolution."}}, {"text": "Andhra Pradesh High Comt", "label": "COURT", "start_char": 5786, "end_char": 5810, "source": "ner", "metadata": {"in_sentence": "On a further appeal, a Division Bench of the Andhra Pradesh High Comt confirmed the decree of the Subordinate Judge."}}, {"text": "A.V. Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 5929, "end_char": 5951, "source": "ner", "metadata": {"in_sentence": "Mr. A.V. Viswanatha Sastri, learned counsel for the appellants raised before us the following two cuntentions: (1) The rates\n\nreed upon between the cnsumers and the Muniipaliy cannot be unilaterally altered and mcreased by the Mumc1pahty to the prejudice of the consumers and, therefore, the said.", "canonical_name": "A. V. Viswanatha Sastri"}}, {"text": "s. 21(2)", "label": "PROVISION", "start_char": 6401, "end_char": 6409, "source": "regex", "metadata": {"statute": null}}, {"text": "May 27, 1932", "label": "DATE", "start_char": 6625, "end_char": 6637, "source": "ner", "metadata": {"in_sentence": "B-4 is one such agreement dated May 27, 1932, between the Municipality and one of the appellants herein."}}, {"text": "Para", "label": "JUDGE", "start_char": 7184, "end_char": 7188, "source": "ner", "metadata": {"in_sentence": "Para, V. A consumer under this Agreement is required to state (see Schedule) under which of the rates set out in the licensee's Official Scale of energy Rates, he desires to be charged."}}, {"text": "Indian Electricity Act 1910", "label": "STATUTE", "start_char": 7546, "end_char": 7573, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Electricity Act, 1940", "label": "STATUTE", "start_char": 9453, "end_char": 9481, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Electricity Department of the Vijayawada Municipality", "label": "ORG", "start_char": 9696, "end_char": 9749, "source": "ner", "metadata": {"in_sentence": "On April 1, 1940, the Electricity Department of the Vijayawada Municipality prepared a document styled as \"Conditions and Rates of Supply\"."}}, {"text": "s.22", "label": "PROVISION", "start_char": 11307, "end_char": 11311, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23", "label": "PROVISION", "start_char": 11579, "end_char": 11589, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21(2)", "label": "PROVISION", "start_char": 15914, "end_char": 15922, "source": "regex", "metadata": {"statute": null}}, {"text": "Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 16688, "end_char": 16705, "source": "ner", "metadata": {"in_sentence": "Mr. Viswanatha Sastri argued that to enhance the rates was to alter a condition within the meaning of sub-s. (2) of s. 21 of the Act and as admittedly the sanction of the State Government was not obtained before such alteration, the said resolution was void."}}, {"text": "s. 21", "label": "PROVISION", "start_char": 16800, "end_char": 16805, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 16988, "end_char": 16993, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 17065, "end_char": 17070, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 17142, "end_char": 17147, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 17179, "end_char": 17184, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 17194, "end_char": 17199, "source": "regex", "metadata": {"statute": null}}, {"text": "Tatachari", "label": "OTHER_PERSON", "start_char": 17300, "end_char": 17309, "source": "ner", "metadata": {"in_sentence": "The learned Solicitor General contended that s. 21 (2) of the Act was a general provision relating to conditions, whereas s. 23 thereof was a specific provision in regard to fixing of rates and that s. 23 would, therefore, prevail over s. 21 and that s. 23 did not prescribe the sanction of the Government as a condition precedent for fixing the rates, Mr. Tatachari, while supporting this argument, added that on the interpretation of para."}}, {"text": "s. 21", "label": "PROVISION", "start_char": 17531, "end_char": 17536, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21(2)", "label": "PROVISION", "start_char": 17660, "end_char": 17668, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21(2)", "label": "PROVISION", "start_char": 17820, "end_char": 17828, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21(2)", "label": "PROVISION", "start_char": 18102, "end_char": 18110, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_27_33_EN", "year": 1965, "text": "A DWARKANAm\n\nSBRI LAL CHAND AND OTOE~\n\nFebruary 10, 1965\n\nB [P. B.\n\nGAJENDRAGADKAR, C.J., M. HIDAYATULLAH, J. c. SHAH\n\nAND S. M. SIKRI, JJ.]\n\nU.P. Court of Wards A~, 1912 (Aot 4 of 1912), ss. 37, 53-Scope of-Consent of Court of Wards for AdOl>tion-Jf adoption can be challenged in Civil Court.\n\nA widow whose estate was under the charge of the Court of Wards, made an adoption and applied under s. 37 of the U.P. Court of Wards Act, 1912. for permission to make the adoption. The Collector refused the permission as the grant of authority to adopt,\n\nby the husband who died in 1901, was not proved. The 1st respondent's father, the nearest reversioner, filed a suit challenging the adoption as contrary to s. 37 of the Act and the suit was decreed.\n\nThe widow. thereafter, applied to the Court of Wards for permission to adopt the appellant. Fresh enquiries about grant of authority by the husband to adopt, were made, and permission was granted and the appellant was adopted in 1929. Immediately after the adoption of the appellant the Court of Wards, released the estate and assumed charge of it again on behalf of the appellant who was a minor. On the death of the widow in 1943, the 1st respondent's father filed a suit, challenging the validity of the appellant's adoption on the ground that the widow had no authority from her husband to adopt. The Trial Court decreed the suit and the High Court, on appeal. affirmed the decree. In appeal to this Court it was contended that the conclusion of the Court of Wards to grant permission and the reasons for the decision could not be questioned in a civil suit.\n\nHELD : The Civil Court was competent to reconsider the question nf the authority given by the husband, even after the consent of th.e Court of Wards.\n\nSection 37 of the U.P. Court of Wards Act affects the competence of the wards to make an adoption, and as the consent of the Court of Wards is a pre-requisite, any adoption made without such consent must be ineffective. The section, however, does not make the sanction of the Court of Wards cure illegalities or breaches of Personal law. Nor does the sanction make up for incompetence arising under the personal law. Those matters would have to be determined according to the personal law in a Civil' Court of competent jurisdiction. f30E-G] ·\n\nction 5~ also is not a bar to such a suit. The section only provides that if the Court of Wards gave or refused its consent to a\n\nproposed adoption a suit would not lie to cancel the consent or to compel it. It does not go to the length of saying that after the consent of the Court of Wards, the adoption itself cannot be questioned at all. f30Hl\n\nIn deciding the question of authority, the statements made by witnesses at the second enquiry by the Court of Wards for giving its consent to adopt, could not be considered by the Civil Court as they were not relevant or admissible either under s. 32(7) or s. 157 of the Indian Evidence Act. f32 D-F; 33 A-Cl\n\nAs the 1st respondent's father never llccepted the appellant's A adoption it could not be said that the suit, filed more than 15 years after the adoption during which time the appellant had been con- >idered by everyone to be legally and validly adopted, ought to !Je dismissed. f33E-G l\n\nClVIL APPELLATE JURISDICTION: Civil Appeal No. 195 of 1%3.\n\nAppeal from the judgment and decree dated March 24, 1959 of the Allahabad High Court in First Appca!No. 76/47.\n\nC. B. Agarwa/a and J. P. Goyal, for the appellant.\n\nS. T. Desai, M. V. Goswami and B. C. Misra, for the respondent No. I.\n\nM. V. Goswami and B. C. Misra, for respondents Nos. 2, 7. and 8.\n\nR. S. Gupta, S. S. Klianduja and Ganpat Rai, for respondent No. 9.\n\nThe Judgment of the Court was delivered by\n\nHidayatullah, J. This appeal arises from a suit filed by respondents 1 and 2 for declaration of their rights to the Phulpur Estate,\n\nfor possession of properties belonging to the Estate and for mesne profits. The Phulpur Estate is situated in Allahabad District. One E Rai Bahadur Rai Pratap Chand who died on January 23, 1901, was the Zamindar of this Estate. After his death, his widow Rani Gomti Bib; succeeded to the Estate. Rani Gomti Bibi was considerably ilnfiuenoed by her brother Gaya Prasad and priests belonging to some temples. In the years following the death of her husband, Rani Gomti Bibi made many endowments involving F vast properties and in July 1920, the Court of Wards assumed charge of the Estate which the Rani was mismanaging. On Feb ruary 21. 1923, the Rani adopted one Bindeshwari Prasad and then applied to the Court of Wards under s. 37 of the U.P. Court of Wards Act for permission to make the adoption. The Collector (Mr. Knox) made an enquiry and ')n April 3, 1923, made a report G Ex. 79 stating that the evidence tendered before him was so conflicting and unreliable that he had come to the conclusion that the authority of Rai Pratap Chand to adoption by his widow was not proved. He, therefore, recommended that Rani Gomti Bibi be declined \"permission to make the adoption and the Board of RevenuPaccordingly refused permission. Rani Gomti Bibi, how H ever, executed a deed of adoption on November 6, 1924 in favour of Bindeshwari Prasad. A suit was filed by Parmeshwar Dayal (who was the first plaintiff in the. persent suit) in 1925 against Rani Gomti Bibi, Bindeshwari Prasad and the Court of Wards challenging the adoption made by the Rani. On August 21, 1926, the suit was decreed, and it was held that the adoption was contrary to s. 37 of the U.P. Court of Wards Act, 1912 and was thus\n\nDWARKA NATH V. LAL CHAND (Hido!Nluilah, J.) 29\n\nA invalid inasmuch as permission to take the adoption was not obtained from the Court of Wards..\n\nRani Gomti Bibi then apphd to the Court of Wards for permission to adopt Bindeshwari Prasad's brother's son Dwarka Nath who is the present appellant. Fresh enquiries, about the authority B of the husband were made by the then Collector Mr. Thompson.\n\nHe examined witnesses from a fat filed by Gaya Prasad in the earlier suit of\" 1925. After considering the evidence, the Collector re commended grant of permission under s. 37 of the U.P. Court of Wards Act and permission was accordingly granted by the Board of Revenue. On November 28, 1929, the Rani adopted Dwarka c Nath at Phulpur. Immediately after th; s adoption the Court of Wards released the Estate and assumed charge of it again on behalf of Dwarka Nath who was a minor.\n\nOn January 5, 1943, Rani Gomti Bibi died and the present suit was filed by Parmeshwar Dayal and one Amarrrath Agarwal D to whom Parmeshwar Dayal had assigned 6/16th share in the Estate. This suit was decreed by the Civil 'Judge of Allahabad who held inter alia that Parmeshwar Dayal was the nearest reversioner of Rai Partap Chand and was entitled to succeed him, and further that the adoption was invalid as there was .no proof of authority given by Rai Pratap Chand to Rani Gomti Bibi to make the adop- E tion. The suit for declaration and possession was decreed with mesne profits amounting to Rs. 88,000 against Dwarka Nath and the Collector and the Court of Wards who was also made a party to the suit. Three appeals were filed against the judgment and by a common judgment dated March 24, 1959, the High Court affirmed the decree except in respect of mesne profits. The High Court p certified the case as fit for appeal to his Court and the present appeal results.\n\nAt the hearing, Mr. C. B. Agarwala stated on behalf of the appellant that he did not challenge that Parmeshwar Dayal was the nearest reversioner of Rai Pratap Chand. We are also not G now concerned with the endowments. Mr. Agarwala contended that the findings about authority by Rai Pratap Chand to the adoption were erroneous an required to be reconsidered.\n\nIn seeking reconsideration of this finding, Mr. Agarwala relied both on facts and law. In so far as his claim is to have the evidence reconsidered, it may be stated at once that it is not the practice H of this Court to examine the evidence at large specially when the High Court and the Court below have drawn identical conclusion from it. In this case, the evidence about the authority, such as it was, was considered both by the Trial Judge and the High Court and they could not persuade themselves to accept it. Followin~ the settled practice of this Court we declined to look into the evidence for the third time, but we permitted Mr. Agarwala to raise arguments of law and wt shall deal with tho'c arguments now.\n\nLIB(D)2S0[-4\n\nMr. Agarwala relies upon ss 37 and 53 of the U.P. Court of A Wards Act, 1912 and contends that inasmuch as the Court of Wards made an enquiry into the truth of the allegat; ons that Rai Pratap Chand had given express authority to Rani Gomti Bibi to make an adoption after his death and found in favour of autho rity, the conclusion of the Court of Wards to grant permission\n\nan? the. reasons for !he dec!sion cannot be questioned by a civil B suit. This argument, m our Judgment, cannot be accepted. Section 37, of the U.P. Court of Wards Act, in so far as it is material. reads as follows: -\n\n\"37. pisabilities of wards- A ward shall not be competent-\n\n(a) ...................... ..\n\n(b) to adopt without the consent in writing of the Court of Wards;\n\n(c) ...................... ..\n\nProvided, first, that the Court of Wards shall not\n\nwithhold its consent under clause (b) .. .. .. . .. . .. if the D adoption .. .. .. . .. .. . is not contrary to the personal or special law applicable to the ward . \"\" .......... \".\n\nThe section obviously places a hurdle in the way of adoptions by the wards which must be removed before the adoption can be valid. The section affects the competence of the wards to make the adoption and as the consent is a pre-requisite, any adoption B made without such consent must be ineffective. The section, however, does not make the sanction of the Court of Wards to cure illegalities or breaches of the personal law. Nor does the sanction make up for incompetence arising under the personal law. It is obvious that if the adoption is void by reason of the personal law of the person adopting, tbe consent of the Court of Wards 1' cannot cure it. Nor would the consent take the place of the essential ceremonies or the religious observances where necessary. Those matters would have to be determined according to the personal law in civil court of competent jurisdiction.\n\nMr. Agarwala argues that s. 53 is a bar to any suit questioning the adoption made after the consent of the Court of Wards to 11 the adoption has been given. That section cannot be used in this manner. It reads :\n\n\"53. (i) The exercise of any discretion conferred on the State Government or the Court of Wards by this Act shall not be questioned in any Civil Court.\n\n(2) ..................... \".\n\nThe section merely puts the exercise of discretion by officers acting under the Court of Wards Act beyond question. Thus if thd Court of Wards gave or refused its consent to a proposed adoption\n\na suit would not Ee either to cancel the consent or to compel it.\n\nThis section. however, does not go to the length that after the consent of the Court of Wards the. adoption 1tsel! cannot be question- . ~\n\nDWARKA NATH v. LAL CHAND (Hidayatullah, J.) 3L\n\nA ed at all. There are no words in the section to this effect nor can. such a result be implied. If the Court of Wards gave its concurrence to a proposed adoption, the bar created by s. 37 of the Act would be removed, but it would not make the adopt'on immune from attacks in a Civil Court on any ground on which adoptions are usually questioned there. Mr. Agarwala claims that the rea- B sons for the consent of the Court of Wards are a part of the consent and are within s. 53(1). This cannot be accepted, No doubt, the Court of Wards reached its own conclusion for purpose of s. 37 that Rai Pratap Chand had accorded authority to Rani Gomti Bibi to adopt a son, but if the adoption was questioned in a civil court, the civil court would not be ousted of its jurisdict; on C to decide the question. All that the civil court would be compelled hold would be that the requirements of the Court of Wards\n\nAct as to the consent of the Court of Wards were fulfilled. In our judgment, the legal argument that after the consent of the Court of Wards the Civil Court was incompetent to reconsider the ques.\n\ntion of the authority given by the husband cannot be accepted.\n\nD In deciding the question of authority, the High Court rejected the oral evidence led before it and affirmed the conclusions of the tr; al Judge. The High Court considered this evidence both intrinsically and in the light of the attending circumstances and found it unacceptable. The trial Judge pointed out that as law- E yers. were present when Rai Pratap Chand 'is alleged to have given authority to his widow. and as it was also suggested that that fact should be recorded, it was unbelievable, if the statements were true, that written authority would not have been prepared then and there. The High Court did not content itself with accepting\n\nthe opinion of the tr.ial Judge but discussed the evidence de nova F and rejected it. The High Court pointed out that Rai Pratap Chand was only 30 years old at the time of his death and his wife was 25 years old and he could not have abandoned the hope of having an issue. Evidence shows that the writ; ng was put off because it was not thought that Rai Pratap Chand was dying. The High Court also pointed out that Rani Gomti Bibi executed bet- G ween November 24, 1901 and August 19, 1904 4 documents making d.ifferent endowments. In none of these documents, she mentioned that she had been asked by her husband to make them.\n\nThe High Court pertinently pointed out that the oral evidence showed that the declaration of the authority to his wife and the\n\nH oral will to make the endowments, were made by Rai Pratap Chand at the same tim:: nd these facts would have figured as the reason for the endowments in these documents. Mr. Agarwala contends that even if the reasons for the endowments might be expected to be expressed, it is not logical to say that the deeds 11hould have recited the irrelevant fact that authority was given to Rani Gomti Bibi to make the adoption. This is perhaps right, but the fact remains that the two directions of Rai Pratap Chand went hand in hand; and even if the fact of authority was not\n\nrecited in the documents, one would expect at least the oral wiU A to make the endowments to be menti9ned. This shows that the whole story about oraLdir.ections to Rani Gomti Bibi was untrue.\n\nMr. Agarwala then seeks to ii'se the statements made by Gaya Prasad and the witnesses before Mr.\n\nThompson. In the High Court this claim was based upon ss .. 11, 32 and 157 of the Indian Evidence Act. The High Court rejected these statement9 B and declined to attach any value to them.\n\nSection 11 was not relied up<>n before us; but the other two sections were referred to in an effort to have that evidence read. Section 157 of the Indian Evidence Act lays down:\n\n\"157. Former statements of witness may be proved to c corroborate later testimony as to same fact: Jn order to corroborate the testimony of i1 w; tness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.\" D Two circumstances, which are alternative, are conditions precedent to the proof of earlier statements under this sect'on. The first is that the statements must have been made at or about the time when a fact took place. The fact here is the authority said to have been given by the husband in 1901. The statements were made on December 18, 1928, 27 years after the event. They cannot be ll said to have been made \"at or about the time when the fact took place\". Further, as rightly pointed 'out b)j l; he High Court, the Court of Wards was making an enquiry for the purpose of accordi11g its consent. It was not enquiring into the fact of the giving of authority as an 'authority legally competent'. That authority, as F we have pointed out already, is the civil court for the civil court alone can finally decide such a question. It can do so even after the Court of Wards had reached a conclusion, and contrary to that conclusion. Section 157 therefore cannot make the statements provable.\n\nMr. Agarwala next relies on s. 32(7) of the Indian Evidence Act to introduce the earlier statements. That sub-sectiorr reads:\n\n\"32. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be. found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount\n\nof delay or expense which under the circumstances of H the case appears to the Court unreasonable, are themselves relevant facts in the following cases:- * * * * '.7) When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in s. 13. clause (a). • * *\n\nDWARKA NA1H v. LAL CHAND (Hiduyatullah, J.) 33\n\nClause (7) makes relevant statements made in deeds, w.ills arul such other documents which relate to transactions by which a right or custom in question \"was created, claimed, modified, recognised, asserted or denied\" (to add the words of cl. (a) of s. 13).\n\nThe clause does not allow introduction of parole evidence, see Field on the Law of Evidence 8th Edn. p. 202. Such parole evidence may be relevant under cl. (5) of s. 32, but that is not relied upon. We questioned Mr. Agarwala whether he wished to rely upon clanse (5), but he did not wish to put his case under that clause and we need not therefore consider the application of that clause. We think Mr. Agarwala is right in taking this course, because cl. (5) requires that such a statement should have been made before the quest'on in dispute was raised. The statements in question were definiuely made after the question in dispute in the suit had already arisen, because one enquiry had already been made by Mr. Knox and the statements now relied upon were made in the second enquiry before Mr. Thompson.\n\nMr. Agarwala next wishes to use the statements made by Gaya Prasad on March 14, 1926 \"Ex. 72\"; but that clearly is not admissible, because when it was made in the suit, Gaya Prasad was being examined as a party before issues were framed. In fairness to Mr. Agarwala it may be mentioned that he did not press the point after noticing the above fact.\n\nMr. Agarwala conten'.!s lastly that as Dwarka Nath was adopted on Nmember, 28. 1929 and the present suit was filed on May 21, 1945, after more than 15 years, and as during this time.\n\nDwarka Nath had been cons'dered by everyone to be legally and validly adopted the suit ought to have been dismissed. It may be pointed out that Panneshwar Dayal never accepted the adoption of Dwarka Nath. He had filed an earlier suit and questioned the competence of Rani Gomti Bibi to make the adoption of B'ndeshwari Prasad. In that suit he had denied that Rai Pratap Chand had given authority to his wife to make the adoption of a son after h's death. He consistently denied the validity of the second adoption and in these circumstances, it cannot be said that he was I concluded by any rule of law from questioning the adoption of Dwarka Nath after Rani Gomti Bibi's death.\n\nOn an examination of all the legal pleas against the judgment of the High Court we are satisfied that none of them avails the appellant. In so far as the question of fact are concerned, we have 11 already stated that we do not propose to go into them as 1t did not appear to us that there was any legal reason for reaching a different conclusion.\n\nWe accordingly dismiss the appeal but order that the parties shall bear their own costs throughout.\n\nAppeal dismissed.", "total_entities": 86, "entities": [{"text": "February 10, 1965", "label": "DATE", "start_char": 39, "end_char": 56, "source": "ner", "metadata": {"in_sentence": "A DWARKANAm\n\nSBRI LAL CHAND AND OTOE~\n\nFebruary 10, 1965\n\nB [P. B.\n\nGAJENDRAGADKAR, C.J., M. HIDAYATULLAH, J. c. SHAH\n\nAND S. M. SIKRI, JJ.]"}}, {"text": "GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 68, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, J.", "label": "JUDGE", "start_char": 90, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "c. SHAH", "label": "JUDGE", "start_char": 110, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. M. SIKRI, JJ.", "label": "JUDGE", "start_char": 123, "end_char": 139, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "U.P. Court of Wards A~, 1912 (Aot 4 of 1912)", "label": "COURT", "start_char": 142, "end_char": 186, "source": "ner", "metadata": {"in_sentence": "U.P. Court of Wards A~, 1912 (Aot 4 of 1912), ss."}}, {"text": "ss. 37, 53", "label": "PROVISION", "start_char": 188, "end_char": 198, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 37", "label": "PROVISION", "start_char": 395, "end_char": 400, "source": "regex", "metadata": {"statute": null}}, {"text": "Court of Wards Act, 1912", "label": "STATUTE", "start_char": 413, "end_char": 437, "source": "regex", "metadata": {}}, {"text": "s. 37", "label": "PROVISION", "start_char": 706, "end_char": 711, "source": "regex", "metadata": {"linked_statute_text": "Court of Wards Act, 1912", "statute": "Court of Wards Act, 1912"}}, {"text": "Section 37", "label": "PROVISION", "start_char": 1765, "end_char": 1775, "source": "regex", "metadata": {"statute": null}}, {"text": "Court of Wards Act", "label": "STATUTE", "start_char": 1788, "end_char": 1806, "source": "regex", "metadata": {}}, {"text": "s. 32(7)", "label": "PROVISION", "start_char": 2904, "end_char": 2912, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 157", "label": "PROVISION", "start_char": 2916, "end_char": 2922, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 2930, "end_char": 2949, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 3382, "end_char": 3402, "source": "ner", "metadata": {"in_sentence": "Appeal from the judgment and decree dated March 24, 1959 of the Allahabad High Court in First Appca!No."}}, {"text": "C. B. Agarwa", "label": "LAWYER", "start_char": 3430, "end_char": 3442, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwa/a and J. P. Goyal, for the appellant.", "canonical_name": "C. B. Agarwala"}}, {"text": "J. P. Goyal", "label": "LAWYER", "start_char": 3449, "end_char": 3460, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwa/a and J. P. Goyal, for the appellant."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 3482, "end_char": 3493, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, M. V. Goswami and B. C. Misra, for the respondent No."}}, {"text": "M. V. Goswami", "label": "LAWYER", "start_char": 3495, "end_char": 3508, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, M. V. Goswami and B. C. Misra, for the respondent No."}}, {"text": "B. C. Misra", "label": "LAWYER", "start_char": 3513, "end_char": 3524, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, M. V. Goswami and B. C. Misra, for the respondent No."}}, {"text": "R. S. Gupta", "label": "LAWYER", "start_char": 3619, "end_char": 3630, "source": "ner", "metadata": {"in_sentence": "R. S. Gupta, S. S. Klianduja and Ganpat Rai, for respondent No."}}, {"text": "S. S. Klianduja", "label": "LAWYER", "start_char": 3632, "end_char": 3647, "source": "ner", "metadata": {"in_sentence": "R. S. Gupta, S. S. Klianduja and Ganpat Rai, for respondent No."}}, {"text": "Ganpat Rai", "label": "LAWYER", "start_char": 3652, "end_char": 3662, "source": "ner", "metadata": {"in_sentence": "R. S. Gupta, S. S. Klianduja and Ganpat Rai, for respondent No."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 3731, "end_char": 3743, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayatullah, J. This appeal arises from a suit filed by respondents 1 and 2 for declaration of their rights to the Phulpur Estate,\n\nfor possession of properties belonging to the Estate and for mesne profits.", "canonical_name": "Hidayatullah"}}, {"text": "Rani Gomti Bib", "label": "OTHER_PERSON", "start_char": 4119, "end_char": 4133, "source": "ner", "metadata": {"in_sentence": "After his death, his widow Rani Gomti Bib; succeeded to the Estate.", "canonical_name": "Rani Gomti Bibi"}}, {"text": "Rani Gomti Bibi", "label": "OTHER_PERSON", "start_char": 4160, "end_char": 4175, "source": "ner", "metadata": {"in_sentence": "Rani Gomti Bibi was considerably ilnfiuenoed by her brother Gaya Prasad and priests belonging to some temples.", "canonical_name": "Rani Gomti Bibi"}}, {"text": "Gaya Prasad", "label": "OTHER_PERSON", "start_char": 4220, "end_char": 4231, "source": "ner", "metadata": {"in_sentence": "Rani Gomti Bibi was considerably ilnfiuenoed by her brother Gaya Prasad and priests belonging to some temples."}}, {"text": "Feb ruary 21. 1923", "label": "DATE", "start_char": 4486, "end_char": 4504, "source": "ner", "metadata": {"in_sentence": "On Feb ruary 21."}}, {"text": "Bindeshwari Prasad", "label": "OTHER_PERSON", "start_char": 4527, "end_char": 4545, "source": "ner", "metadata": {"in_sentence": "1923, the Rani adopted one Bindeshwari Prasad and then applied to the Court of Wards under s. 37 of the U.P. Court of Wards Act for permission to make the adoption.", "canonical_name": "Bindeshwari Prasad"}}, {"text": "s. 37", "label": "PROVISION", "start_char": 4591, "end_char": 4596, "source": "regex", "metadata": {"statute": null}}, {"text": "Court of Wards Act", "label": "STATUTE", "start_char": 4609, "end_char": 4627, "source": "regex", "metadata": {}}, {"text": "Knox", "label": "OTHER_PERSON", "start_char": 4684, "end_char": 4688, "source": "ner", "metadata": {"in_sentence": "The Collector (Mr. Knox) made an enquiry and ')n April 3, 1923, made a report G Ex."}}, {"text": "April 3, 1923", "label": "DATE", "start_char": 4714, "end_char": 4727, "source": "ner", "metadata": {"in_sentence": "The Collector (Mr. Knox) made an enquiry and ')n April 3, 1923, made a report G Ex."}}, {"text": "Rai Pratap Chand", "label": "OTHER_PERSON", "start_char": 4889, "end_char": 4905, "source": "ner", "metadata": {"in_sentence": "79 stating that the evidence tendered before him was so conflicting and unreliable that he had come to the conclusion that the authority of Rai Pratap Chand to adoption by his widow was not proved.", "canonical_name": "Rai Pratap Chand"}}, {"text": "November 6, 1924", "label": "DATE", "start_char": 5156, "end_char": 5172, "source": "ner", "metadata": {"in_sentence": "Rani Gomti Bibi, how H ever, executed a deed of adoption on November 6, 1924 in favour of Bindeshwari Prasad."}}, {"text": "Parmeshwar Dayal", "label": "PETITIONER", "start_char": 5226, "end_char": 5242, "source": "ner", "metadata": {"in_sentence": "A suit was filed by Parmeshwar Dayal (who was the first plaintiff in the.", "canonical_name": "Parmeshwar Dayal"}}, {"text": "Rani", "label": "OTHER_PERSON", "start_char": 5406, "end_char": 5410, "source": "ner", "metadata": {"in_sentence": "persent suit) in 1925 against Rani Gomti Bibi, Bindeshwari Prasad and the Court of Wards challenging the adoption made by the Rani."}}, {"text": "August 21, 1926", "label": "DATE", "start_char": 5415, "end_char": 5430, "source": "ner", "metadata": {"in_sentence": "On August 21, 1926, the suit was decreed, and it was held that the adoption was contrary to s. 37 of the U.P. Court of Wards Act, 1912 and was thus\n\nDWARKA NATH V. LAL CHAND (Hido!Nluilah, J.) 29\n\nA invalid inasmuch as permission to take the adoption was not obtained from the Court of Wards..\n\nRani Gomti Bibi then apphd to the Court of Wards for permission to adopt Bindeshwari Prasad's brother's son Dwarka Nath who is the present appellant."}}, {"text": "s. 37", "label": "PROVISION", "start_char": 5504, "end_char": 5509, "source": "regex", "metadata": {"linked_statute_text": "Court of Wards Act", "statute": "Court of Wards Act"}}, {"text": "Court of Wards Act, 1912", "label": "STATUTE", "start_char": 5522, "end_char": 5546, "source": "regex", "metadata": {}}, {"text": "DWARKA NATH", "label": "PETITIONER", "start_char": 5561, "end_char": 5572, "source": "metadata", "metadata": {"canonical_name": "Dwarka c Nath", "offset_not_found": true}}, {"text": "Hido!Nluilah", "label": "JUDGE", "start_char": 5587, "end_char": 5599, "source": "ner", "metadata": {"in_sentence": "On August 21, 1926, the suit was decreed, and it was held that the adoption was contrary to s. 37 of the U.P. Court of Wards Act, 1912 and was thus\n\nDWARKA NATH V. LAL CHAND (Hido!Nluilah, J.) 29\n\nA invalid inasmuch as permission to take the adoption was not obtained from the Court of Wards..\n\nRani Gomti Bibi then apphd to the Court of Wards for permission to adopt Bindeshwari Prasad's brother's son Dwarka Nath who is the present appellant."}}, {"text": "Dwarka Nath", "label": "PETITIONER", "start_char": 5815, "end_char": 5826, "source": "ner", "metadata": {"in_sentence": "On August 21, 1926, the suit was decreed, and it was held that the adoption was contrary to s. 37 of the U.P. Court of Wards Act, 1912 and was thus\n\nDWARKA NATH V. LAL CHAND (Hido!Nluilah, J.) 29\n\nA invalid inasmuch as permission to take the adoption was not obtained from the Court of Wards..\n\nRani Gomti Bibi then apphd to the Court of Wards for permission to adopt Bindeshwari Prasad's brother's son Dwarka Nath who is the present appellant.", "canonical_name": "Dwarka c Nath"}}, {"text": "Thompson", "label": "LAWYER", "start_char": 5947, "end_char": 5955, "source": "ner", "metadata": {"in_sentence": "Fresh enquiries, about the authority B of the husband were made by the then Collector Mr. Thompson.", "canonical_name": "Thompson"}}, {"text": "s. 37", "label": "PROVISION", "start_char": 6127, "end_char": 6132, "source": "regex", "metadata": {"linked_statute_text": "Court of Wards Act, 1912", "statute": "Court of Wards Act, 1912"}}, {"text": "Court of Wards Act", "label": "STATUTE", "start_char": 6145, "end_char": 6163, "source": "regex", "metadata": {}}, {"text": "November 28, 1929", "label": "DATE", "start_char": 6231, "end_char": 6248, "source": "ner", "metadata": {"in_sentence": "On November 28, 1929, the Rani adopted Dwarka c Nath at Phulpur."}}, {"text": "Dwarka c Nath", "label": "PETITIONER", "start_char": 6267, "end_char": 6280, "source": "ner", "metadata": {"in_sentence": "On November 28, 1929, the Rani adopted Dwarka c Nath at Phulpur.", "canonical_name": "Dwarka c Nath"}}, {"text": "Phulpur", "label": "GPE", "start_char": 6284, "end_char": 6291, "source": "ner", "metadata": {"in_sentence": "On November 28, 1929, the Rani adopted Dwarka c Nath at Phulpur."}}, {"text": "January 5, 1943", "label": "DATE", "start_char": 6442, "end_char": 6457, "source": "ner", "metadata": {"in_sentence": "On January 5, 1943, Rani Gomti Bibi died and the present suit was filed by Parmeshwar Dayal and one Amarrrath Agarwal D to whom Parmeshwar Dayal had assigned 6/16th share in the Estate."}}, {"text": "Parmeshwar Dayal", "label": "PETITIONER", "start_char": 6514, "end_char": 6530, "source": "ner", "metadata": {"in_sentence": "On January 5, 1943, Rani Gomti Bibi died and the present suit was filed by Parmeshwar Dayal and one Amarrrath Agarwal D to whom Parmeshwar Dayal had assigned 6/16th share in the Estate.", "canonical_name": "Parmeshwar Dayal"}}, {"text": "Amarrrath Agarwal", "label": "OTHER_PERSON", "start_char": 6539, "end_char": 6556, "source": "ner", "metadata": {"in_sentence": "On January 5, 1943, Rani Gomti Bibi died and the present suit was filed by Parmeshwar Dayal and one Amarrrath Agarwal D to whom Parmeshwar Dayal had assigned 6/16th share in the Estate."}}, {"text": "Allahabad", "label": "GPE", "start_char": 6670, "end_char": 6679, "source": "ner", "metadata": {"in_sentence": "This suit was decreed by the Civil 'Judge of Allahabad who held inter alia that Parmeshwar Dayal was the nearest reversioner of Rai Partap Chand and was entitled to succeed him, and further that the adoption was invalid as there was .no proof of authority given by Rai Pratap Chand to Rani Gomti Bibi to make the adop- E tion."}}, {"text": "Rai Partap Chand", "label": "OTHER_PERSON", "start_char": 6753, "end_char": 6769, "source": "ner", "metadata": {"in_sentence": "This suit was decreed by the Civil 'Judge of Allahabad who held inter alia that Parmeshwar Dayal was the nearest reversioner of Rai Partap Chand and was entitled to succeed him, and further that the adoption was invalid as there was .no proof of authority given by Rai Pratap Chand to Rani Gomti Bibi to make the adop- E tion.", "canonical_name": "Rai Pratap Chand"}}, {"text": "March 24, 1959", "label": "DATE", "start_char": 7224, "end_char": 7238, "source": "ner", "metadata": {"in_sentence": "Three appeals were filed against the judgment and by a common judgment dated March 24, 1959, the High Court affirmed the decree except in respect of mesne profits."}}, {"text": "C. B. Agarwala", "label": "LAWYER", "start_char": 7431, "end_char": 7445, "source": "ner", "metadata": {"in_sentence": "At the hearing, Mr. C. B. Agarwala stated on behalf of the appellant that he did not challenge that Parmeshwar Dayal was the nearest reversioner of Rai Pratap Chand.", "canonical_name": "C. B. Agarwala"}}, {"text": "Agarwala", "label": "OTHER_PERSON", "start_char": 7634, "end_char": 7642, "source": "ner", "metadata": {"in_sentence": "Mr. Agarwala contended that the findings about authority by Rai Pratap Chand to the adoption were erroneous an required to be reconsidered."}}, {"text": "ss 37 and 53", "label": "PROVISION", "start_char": 8530, "end_char": 8542, "source": "regex", "metadata": {"statute": null}}, {"text": "Court of A Wards Act, 1912", "label": "STATUTE", "start_char": 8555, "end_char": 8581, "source": "regex", "metadata": {}}, {"text": "Section 37", "label": "PROVISION", "start_char": 9005, "end_char": 9015, "source": "regex", "metadata": {"linked_statute_text": "Court of A Wards Act, 1912", "statute": "Court of A Wards Act, 1912"}}, {"text": "Court of Wards Act", "label": "STATUTE", "start_char": 9029, "end_char": 9047, "source": "regex", "metadata": {}}, {"text": "s. 53", "label": "PROVISION", "start_char": 10431, "end_char": 10436, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 37", "label": "PROVISION", "start_char": 11435, "end_char": 11440, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 53(1)", "label": "PROVISION", "start_char": 11725, "end_char": 11733, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 37", "label": "PROVISION", "start_char": 11831, "end_char": 11836, "source": "regex", "metadata": {"statute": null}}, {"text": "Act", "label": "STATUTE", "start_char": 12156, "end_char": 12159, "source": "regex", "metadata": {}}, {"text": "November 24, 1901", "label": "DATE", "start_char": 13521, "end_char": 13538, "source": "ner", "metadata": {"in_sentence": "The High Court also pointed out that Rani Gomti Bibi executed bet- G ween November 24, 1901 and August 19, 1904 4 documents making d.ifferent endowments."}}, {"text": "August 19, 1904", "label": "DATE", "start_char": 13543, "end_char": 13558, "source": "ner", "metadata": {"in_sentence": "The High Court also pointed out that Rani Gomti Bibi executed bet- G ween November 24, 1901 and August 19, 1904 4 documents making d.ifferent endowments."}}, {"text": "Thompson", "label": "LAWYER", "start_char": 14685, "end_char": 14693, "source": "ner", "metadata": {"in_sentence": "Mr. Agarwala then seeks to ii'se the statements made by Gaya Prasad and the witnesses before Mr.\n\nThompson.", "canonical_name": "Thompson"}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 14767, "end_char": 14786, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 11", "label": "PROVISION", "start_char": 14874, "end_char": 14884, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 157", "label": "PROVISION", "start_char": 15002, "end_char": 15013, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 15021, "end_char": 15040, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "December 18, 1928", "label": "DATE", "start_char": 15733, "end_char": 15750, "source": "ner", "metadata": {"in_sentence": "The statements were made on December 18, 1928, 27 years after the event."}}, {"text": "Section 157", "label": "PROVISION", "start_char": 16339, "end_char": 16350, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32(7)", "label": "PROVISION", "start_char": 16427, "end_char": 16435, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 16443, "end_char": 16462, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 13", "label": "PROVISION", "start_char": 17033, "end_char": 17038, "source": "regex", "metadata": {"statute": null}}, {"text": "Hiduyatullah", "label": "JUDGE", "start_char": 17085, "end_char": 17097, "source": "ner", "metadata": {"in_sentence": "DWARKA NA1H v. LAL CHAND (Hiduyatullah, J.) 33\n\nClause (7) makes relevant statements made in deeds, w.ills arul such other documents which relate to transactions by which a right or custom in question \"was created, claimed, modified, recognised, asserted or denied\" (to add the words of cl. (", "canonical_name": "Hidayatullah"}}, {"text": "s. 13", "label": "PROVISION", "start_char": 17357, "end_char": 17362, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 17529, "end_char": 17534, "source": "regex", "metadata": {"statute": null}}, {"text": "March 14, 1926", "label": "DATE", "start_char": 18245, "end_char": 18259, "source": "ner", "metadata": {"in_sentence": "Mr. Agarwala next wishes to use the statements made by Gaya Prasad on March 14, 1926 \"Ex."}}, {"text": "May 21, 1945", "label": "DATE", "start_char": 18643, "end_char": 18655, "source": "ner", "metadata": {"in_sentence": "1929 and the present suit was filed on May 21, 1945, after more than 15 years, and as during this time."}}, {"text": "Panneshwar Dayal", "label": "OTHER_PERSON", "start_char": 18853, "end_char": 18869, "source": "ner", "metadata": {"in_sentence": "It may be pointed out that Panneshwar Dayal never accepted the adoption of Dwarka Nath."}}, {"text": "B'ndeshwari Prasad", "label": "OTHER_PERSON", "start_char": 19016, "end_char": 19034, "source": "ner", "metadata": {"in_sentence": "He had filed an earlier suit and questioned the competence of Rani Gomti Bibi to make the adoption of B'ndeshwari Prasad.", "canonical_name": "Bindeshwari Prasad"}}]}
{"document_id": "1965_3_283_292_EN", "year": 1965, "text": "R. S. MADANAPPA AND ORS.\n\nCHANDRAMMA AND ANR.\n\nMarch 5, 1965\n\n[K. N. WANCHOO, J. R. MUDHOLKAR ANDS. M. SncRJ, JJ.] Indian Evidence, s. 115 and Equitable Estoppel-When conduct does not amount to estoppel-Mesne profits-Past and future-When can be awarded. .\n\nThe plaintiff instituted the suit for possession of her half share in the suit properties anci for mesne profits. The first defendant, what was the plaintiff's sister, admitted the plaintiff's ciaim and herselfi claimed a decree against the other defendants in respect of her half share in the suit properties. The second defendant was their fatheJ' and the suit properties were in his possession. He and the other defendants, who were his second wife and children by her, contested the suit. The trial court decreed the plaintiff's claim, but held that the first defendant was estopped from claiming possession of her share. On appeal by the first defendant, the High Court passed .a decree! in her favour also for possession of her half share in the suit properties, and for past and future mesne profits.\n\nOn appeal to thi~ Court against the decree in favour of the first defendant, it was contended on behalf of the other defendants: (i) that the first defendant was estopped by her conduct from claiming possession of her half share of the properties because (a) she\\ had not replied to a notice from the plaintiff to join with her in the suit for obtaining possession and division of the suit properties; (b)' she had written a letter to her step-mother stating that she wished to have no interest in the suit properties then in her father's possession;\n\n(c) she and her husband had attested a will executed by the father on 25-1-1941 which covered the disposition of the suit properties; and (d) that the first defendant's conduct was either covered by s. 115 Evidence Act or fell within the principle of \"equitable estoppel\"; (jjy even if the first defendant's claim to the half share in the suit properties could not be denied, she must be made to pay for half the cos~ of various improvements of those properties effected by the secondi defendant in the bona fide belief that the properties belonged to him, as she had acquiesced in the expenditure being incurred; (iii) that no decree can be passed in favour of a defendant who has not asked for transposition as plaintiff in the suit; and (iv) that it is not open to a1 court to award future mesne profits to a party who did not claim them in the suit.\n\nHELD: (i) The first defendant was neither estopped from claim ing possession of her half share of the properties nor could she be made liable to pay half the costs of improvements alleged to have been made by the second defendant; (a) It cannot be implied from the conduct of the first defendant in not replying to the notice given by the plaintiff that she had admitted that she had no interest in the properties; (bl The second defendant's case that the properties belonged to him having been negatived, there was no possibility of an erroneous belief being created in the mind of the second defendant that he had title to the property because of what the first defendant had sa'd in her letter to her step-mother; (c) The attestation of the will by the first defendant and her husband, by which the second defendant purported to make a disposition of the suit properties in favour of the other defendants could not operate as an estoppel, as\n\n284 StJPREME COURT REPORTS\n\n[1965) 3 S.C.R.\n\nno interest had accrued in favour of those defendants on the date of the suit. As •far a~ .the second defendant was concerned, he knew the true legal pos1t10n and could not say that an erroneous belief was created m his mmd by reason of the first defendant and her husband attesting the will. [286 G-H; 287 C; 287 F] Quaere: Whether the Court, while determining whether the conduct of a particular party amounts to an \"equitable estoppel\" could travel beyond the provisions of s. 115 of the Evidence Act [288 Bl .\n\nCase Jaw reviewed.\n\n(ii) No man who knowing fully well that he has no title to pro~ perty, spends money on improving it, can be permitted to claim pay~ ment for improvements which were not effected with the consent of the true owner. [290 CJ Ramsden v. Dyson, L R.I.H.L.App. 129, 140 distinguished.\n\n(iii) Both the plaintiff and the first defendant claimed under the same title and though the other defendants had urged special defences against the first defendant, they had been fully considered and adjudicated upon by the High Court while allowing her appeal. The High Court could, while upholding her claim, have transposed her as a pla'ntiff. It either over-looked the technical defect or felt that under Order XLI rule. 33, it had ample power to decree her claim. However that may be, the provisions of s. 99 C.P.C., would be a bar to interference by the Supreme Court with the High Court's decree upon such a gm1nd. [290 G-H]\n\nBhupendra v. Rajeshwar, 58 I.A. 228, referred to.\n\n(iv) Though mesne profits prior to the suit cannot be awarded to a successful party unless a claim is made in respect of them, the position regarding future mesne profits is governed by 0. XX, r. 2, C.P.C. The decree awarding mesne profits to the first defendant musb be upheld because the first defendant admitted the plaintiff'• claim and in substance prayed for a similar decree in her favour.\n\n[291 B; 292 G-H]\n\nMohd. Amin and Ors. v. Vakil Ahmed and Ors. [1952] S.C.R. 1133, distinguished.\n\nC1v1L A1•PELLATE JURISDICTION: Civil Appeal No. 730 of 1962.\n\nAppeal from the judgment and decree dated February 19, 1959. of the Mysore High Court in Regular Appeal No. 208 of 1961-62.\n\nS. K. Venkatarangaiengar and A. G. Ratnaparkhi, for the appellants ,., S. T. Desai and Naunit Lal, for respondent No. 1.\n\nK. K. Jain, for respondent No. 2.\n\nThe Judgment of the Court was delivered by Mudholkar, J. This is an appeal by defendants Nos. 3 to 8 from a decision ol the High Court of Mysore passing a decre;: in favour of respondent No. 1 who was defendant No. 1 in the trial court, for posses5icn of half the property which was the subject matter of the mit and also allowing future mesne profits.\n\nThe relevant facts are briefly these: The plaintiff who is the elder sister of the first defendant instituted a suit in the court of the District Judge, Bangalore for a declaration that she is the owner of half share in the properties described in the schedule to the plaint and for partiticn and' separate possession of half share and for mesne\n\nlil\n\n1\\.S. MA.DANAPPA ~. CHANDRAlOlA (MuiJholkar, J.) 285\n\nprofits. According to her the suit property was the absolute property of her mother Puttananjamma and .upon her death this property devolved on her and the first defendant as her mother's heirs. Since, according to her. the first defendant did not want to join her as coplaintiff in the suit, she was joined as a defendant. It is common ground that the property was in the possession of the second defendant R. S. Maddanappa, the father of the plaintiff and the first defendant and Gargavva, the second wife of Maddanappa and her children. Madanappa died during the pendency of the appeal before thh Court and his legal representatives are the other defendants to\n\nth,• suit. Briefly stated his defence, which is also the defence of the defendants other than defendant No. I is that though the suit properties belonged to Gowramma, the mother of Puttananjamma, she had settled them orally on the latter as well as on himself and that after the death of Puttananjamma he has been in possession of those properties and enjoying them as full owner. He further pleaded that it was the last wish of Puttananjamma that he should enjoy these properties as absolute owner. The plaintiff and the Jirst defendant had, according to him, expressly and impliedly abandoned their right in these properties, that his possession over the properties was adverse to them and as he was m adverse possession for over the statutory period, the suit was barred. Finally he contended that he had spent more than Rs. 46,000 towards improvements of the properties which met partly from the income of his joint ancestral property and partly from the assets of the third defendant.\n\nThese improvements, he alleged, were made by him bona fide in the belief that he had a right to the suit properties and consequently he was entitled to the benefit of the provisions of Section 51 of the Transfer of Property Act.\n\nThe first defendant admitted the claim of the plaintiff and also claimed a decree against the other defendants in respect of her half share in the suit properties. The other defendants, however, resisted her claim and in addition to what the second defendant has alleged in his written statement contended that she was estopped by her conduct from claiming any share in the properties.\n\nThe trial court decreed the claim of the plaintiff but held that the first defendant was estopped from claimin~ possession of her half share in the properties left by her mother. The first defendant preferred an appeal before the High Court challenging the correctness of the decision of the trial court. The other defendants also filed an appeal before the High Court challenging the decision of the trial court .in favour of the plaintiff. It would appear that the plaintiff had also preferred some cross-objections. All the matters were hrd together in the High Court, whiGh dismissed the\n\nppeal preferred 9Y defendants Nos. 2 to 8 as well as the crossobjections lodged by the plaintiff but decreed the appeal pr'!ferred by th~ first defendant and passed a decree in her favour for possession of her half share in the suit properties, and future mesne profits\n\nagainst th_e remaining defen.dants. Defendants Nos. 2 to 8 applied tor a certificate from the High Court under Articles 133(1)(a) and 133(])(c) in respect of the decree of the High Court in the t\\vo appeals. The High Court granted the certificate to defendants Nos. 2 to 8 in so far as defendant No. 1 was concerned but refused certipcate in so far as the plaintiff was concerned. We are therefore, concernd with a limited question and that is whether the High Court was right in awarding a decree to the first defendant for possess'on of her half share and mesne profits.\n\nMr. Venkatarangaiengar, who appears for the appellants accepts the position that as the'certificate was refused to defendants Nos. 2 to 8 in so far as the plaintiff is concerned, the only points which they are entitled to urge are those which concern the first defendant alone and no other. The points which the learned counsel formulated are as follows :\n\n(I) It is not open to a court to award future mesne profits to a party who did not claim them in the suit;\n\n(2) No decree can be passed in favour of a defendant who has not asked for transposition as plaintiff in the suit.\n\n(3) That the first defendant was estopped by her conduct from claiming possession of her alleged half share of the properties.\n\nWe will consider the question of esfoppel first. The conduct of the first defendant from which the learned counsel wants us to draw the inference of estoppel consts of her attitude when she was served with a notice by the plaintiff, her general attitude respecting\n\nI!angalore properties as expressed in the letter dated 17th January, 1941 written by her to her step-mother and the attestation by her and her husband on 3-10-1944 of the will executed on 25th January, 1941 by Maddanappa. In the notice dated 26th January, 1948 by the plaintiff's lawyer to the first defendant it was stated that the plaintiff and the first defendant were joint owners of the suit properties which were in the possession of their father and requested. for the co-operation of the first defondant in order to effect the division of the properties. A copy of this notice was sent to Maddanappa and he sent a reply to it to the plaintiff's lawyers. The first defendant, however, sent no reply at all. We find it difficult to construethe conduct of the first defendant in not replying to the notice and in not co-operating with the plaintiff in instituting a suit\n\nfor obtaining possession of the properties as justifying the inference H of estoppel. It does not mean that she impliedly admitted that she . had no interest in the properties. It is true that in Ex. 15, which is a letter sent by her en 17-1-1941 to her step-mother she has observed thus:\n\n\"I have no desire whatsoever in respect of the properties which are at Bangalore. Everything belongs to my father.\n\nHe has the sole authority to. do anything .... We give our\n\nR.B. MADANAPPA v. CHANDRAMMA (Mudholkar, J.) 287\n\nconsent to anything done by our father. We will not do anything.\" But even these statements cannot assist the appellants because admittedly the father knew the true legal position. That is to say, the father knew that these properties belonged to Puttananjamma' and that he had no authority to deal with these properties. No doubt, in his written statement Maddanappa had set up a case that the properties belonged to him by virtue of the declaration made by Puttananjamma at the time of her death, but that case has been negatived by the ourts below. The father's possession must, there-·\n\nfore, be deemed to have been, to his knowledge, on behalf of the plaintiff and the first defendant. There was thus no possibility of an erroneous belief about his title being created in the mind of Maddanappa because of what the first defendant had said in her letter to her step-mother.\n\nIn so far as the attestation of the will is concerned, the appellants' position is no better. This 'will' purports to make a disposition of the suit properties along with other properties by Maddan appa in favour of defendants Nos. 3 to 8. The attestation of thfl will by the first defendant and her husband, would no doubt affix them with the knoweldge of what Maddanappa was doing, but it cannot operate as estoppel against them and in favour of defen• dants Nos. 3 to 8 or even in favour of Maddanappa. The will could1 take effect only upon the death of Maddanappa and, therefore, no interest in the property had at all accrued to the defendants Nos. 3 to 8 even on the date of the suit. So far as Maddanappa is concerned, he, as already stated, knew the true position and therefore, could not say that an erroneous belief about his title to the properties was created in his mind by re1son of the conduct of the first! defendant and her husband in attesting the document. Apart from that there is nothing on the record to show that by reason of the conduct of the first defendant Maddanappa altered his position to his disadvantage.\n\nMr. Venkatarangaiengar. however, says that subsequent to the execution of the will he had effected further improvements in the properties and for this purpose spent his own moneys. According to him, he would not have done so in the absence of an assurance like the one given by the first defendant and her husband to the effect that they had no objection to the disposition of the suit properties by him in any way he chose to make it. The short answer to this is that Maddanappa on his own allegations was not only in possession and enjoyment of these properties ever since the death of Puttananjamma but had made improvements in the properties even before the execution of the will. In these circumstances, it is clear that the provisions of Section 115 of the Indfan Evidence Act, which contain the law of estoppel by representation do not help him.\n\nMr. Venkatarangaiengar, however, wanted us to hold that the law of estoppel by representation is not confined to the pr\n\nof s: 115 of the Evidence Act, that apart from the provisions of this scch?n there is what is called \"equitable estoppel\" evolved by the English Judges and that the present case would come within such \"equitabk estoppel\". tn some decisions of the High Courts reference has been made to \"equitable estoppel\" but we doubt whethe~ the court while determining whether the conduct of a particula~ party amounts to an e.stoppel, could travel beyond the provisions of Sect10n 115 of the Evidence Act. As was pointed out by Garth C.J.\n\nin Ganges Manufacturing Co. v. Saurjmull(') the provision of s 115 of the Evidence Act are in one sense a rule of evidence and\n\nare founded upon the well known doctrine laid down in Pickard v.\n\nSears(') in which the rule was stated thus:\n\n\"Where one by his word or conduct wilfully causes another to believe for the existence of a certain state of thing and induced him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the first time.\" The object of estoppel is to prevent fraud and secure justice bet• ween the parties by promotion of honesty and good faith. There\n\nfore, where one person makes a misrepresentation to the otheu about a fact he would not be shut out by the rule of estoppel. if that other person know the true state of facts and must consequent• ly not have been misled by the misrepresentation.\n\nThe general principle of estoppel is stated thus by the Lord Chancellor i, n Cairncross v. Lorimer('):\n\n\"The doctrine will apply, which is to be found. I believe, in the laws of all civilized nations that if a man either by words or by conduct has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully _done without his consent. and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice o~ those who have so given faith to his words or to the fair inference to be drawn from his conduct. I am of opinion that, generally speaking, if a party having an interest IOI prevent an act being done has full notice of its being done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license.\" It may further be mentioned that in Cari\" v. London & N_W_ Ry. Co.(') four propositions concerning an estoppel by conduct\n\ni'I 1.L-R, 5CCnJ,. 669.\n\n(2) 6 Ad •• E. 469. ('I 3 Macq. s2;. (\" T,, Jt. 10 C.P. 307.\n\nR.S. MADANAPPA v. CHANDRAMMA (Mudhotkar, J.) 289\n\nwere laid down by Brett, J. (afterwards Lord Reher) the third o~ which rum thus:\n\n\"If a man either in express terms or by conduct makes a representation to another of the existence of a certain stattl of facts which he intends to be acted upon in a certain way, and it be acte:l upon in the belief of the existence of such a: state of facts, to the damage 'Of him who so believes and acts, the first is estoppel from denying the existence of such a state of facts,\"\n\nThis also shows that the person claiming benefit of the doctrine must show that he has acted to his detriment on the faith of the representation made to him.\n\nThis was quoted with approval in Sarad v. Gopa[('). It will thus be seen that here also the person who sets up an estoppei against the other must show that his position was altered by reason of the representation or conduct cf the latter and unless he does that even the general principle of estoppe] cannot be invoked by him. As already stated no detriment resulted to any of the defendants as a: result of what the defendant No. I had stated in her letter to her step-mother or as a result of the attestation by her and her husband of the will cf Maddanappa.\n\nMr. Venkatarangaiengar then tried to urge before us that it was a case of fmily settlement by the father with a view to avoid! disputes amongst his heirs and legal representatives after his death and, therefore, the actions of defendant No. I can be looked at as acquiescence in the family settlement effected by the father. A case of fall'ily settlement was never set up by the defendants either in the trial court or in the High Court and we cannot allow a new case to be set up before us for the first time.\n\nFinally on this aspect of the case the learned counsel referred to the observations of Lord Cranworth in Ramsden v. Dyson(') which are as follows:\n\n\"If a stranger begins to build on my land supposing it to be his own and I (the real owner) perceiving his mistake, abstain from setting him right, a!nd leave him to persevere in his error, a court of equity will not allow me afterwards to assert my title to the land, on which he has expended money on the supposition, that the land was his own. It considers that when I saw the mistake in which he had fallen, it was my duty to be active and to state his adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion in order afterwards to profit by the mistake which I might have prevented.\n\nThe doctrine of acquiescence cannot afford any help to the appellants for the simple reason that Maddanappa who knew the true state of affairs could not say that any mistaken belief was caused\n\n(') L. R. 19 I.A. 20~. (') L. R.I. JI. L. App. 129, 140.\n\n~UPREME COURT REPORTS\n\n(! 965) 3 S.C.R,\n\nin his mind by reason of what the first defendant said or did.\n\nAccording to the learned counsel, even if the first defendant's claim to the half share in the suit property cannot be denied to her she must at least be made to pay for the improvements effected by Maddanappa, according to her proportionate share in the suit property. As already stated the appellant was .in enjoyment of thee proportion after his wife's death and though fully aware of the fact that they belonged to the daughters he dealt with them as he chose.\n\nWhen he spent moneys on those properties he knew what he was doing and it is not open to him or to those who claim under him to say that the real owners of the properties or either of them should' be made to pay for those improvements. No man who, knowing fully well that he has no title to property spends money on improving it can be permitted to deprive the original owner of his right to possession of the property except upon the payment for the improvements which were not effected with the consent of that person.\n\nIn our view, therefore, neither was defendant No. 1 estopped from claiming possession of half share of the properties nor can she be made liable to pay half the costs of improvements alleged to have been made by the seconddefendant.\n\nNow regarding the second point, this objection is purely technical. The plaintiff sued for partition of the suit properties upon the ground that they were inherited jointly by her and by the first defendant and claimed possession of her share from the other defendants who were wrongfully in possession of the properties.\n\nSl'e als; i alleged that the first defendant did not co-operate in the matter and so she had to institute the suit. The first defendant admitted the plaintiff's title to half share in the properties and claimed a decree also in her own favour to the extent of the remaining half share in the properties. She could also have prayed for the transposition as a co-plaintiff and under Order I, rule 10(2) C.P.C. the Court could have transposed her as a co:plaintiff. The power unde~ this provision is exercisable by the Court even suo motu. As pointed out by the Privy Council in Bhupender v. Rajeshwar(') the power ought to be exercised by a court for doing complete justice between the parties. Here both the plaintiff and the first defendant claim under the same title and though defendants 2 to 8 had urged special defences against the first defendant, they.have been fully considered and adjusted upon by the High Court while allowing her-appeal.\n\nSince the trial court upheld the special defences urged by defendants 3 to 8 and negatived the claim of the .first defendant it may have thought it unnecessary to order her transposition as plaintiff.\n\nBut the High Court could. while upholding her claim, well have done so. Apparently it either over-looked the technical defect or felt that under 0. XLI, rule 33 it had ample power to decree her claim. However that may be, the provisions of s. 99 would be a bar to interfere here with the High Court's decree upon a ground such as this.\n\n(') L.R. 58 l.A. 22~.\n\nR.S. MADANAPPA '<'.\n\nCHANDRAMMA (Mudholkar, J.) 291\n\nfhe only other question for consideration is whether the High Court was justified in awarding mesne profits to the first defendant even though she was not transposed as a plaintiff. According to the learned counsel mesne profits cannot be awarded to a successful party to a suit for possession unless a claim was made in respect of them. The learned counsel is right in so far as mesne profits prior to the suit are concerned but in so far as mesne profits subsequent to the date of the institution of the suit, that is future mesne profits are concerned, the position is governed by Order XX, rule 2, C.P.C. which is as follows:\n\n\"(]) Where a suit is for the recovery of possess'on of immovable property and for rent or mesne profits, the Court may pass a decree -\n\n(a) for the possession of the property;\n\n(b) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits;\n\n(c) directing an inquiry as to rent or mesne profits from the institution of the suit until: -\n\n(i) the delivery of possession to the decreeholder,\n\n(ii) the relinquishment of possession by the judgment debtor with notice to the decree-holder through the Court, or ('ii) the expiration of three years from the date of the decree, whichever event first occurs.\n\n(2) Where an inquiry is directed under clause (b) or clause\n\n(c) a nnal decree in respect of the rent or mesne profits shali be passed in accordance with the result of such inquiry.\" The learned counsel, however, relied upon the decision of this Court in Mohd. Amin and others v. Vakil Ahmed and others(').\n\nThat was a suit for a declaration that a deed of settlement was void and for possession of the property which was the subject matter of the settlement under that deed. The plaintiffs had not claimed mesne profits at all in their plaint but the High Court had passed a decree in the plaintiff's favour not only for possession but also for mesne profits. In the appeal before this Court against the decision of the High Court one of the points taken was that in a ca; e of this kind, the court has no power to award mesne profits.\n\nWhile upholding this contention Bhagwati J. who delivered the judgment of the Court has observed thus:\n\n\"The learned Solicitor-Genera! appearing for the plaintiffs conceded that there was no demand for mesne profits as such but urged that the . claim for mesne profits would. be included within __!_he expression 'awarding\n\nI') [1952] S.C.IL 1!33, 1144. )!/B(N)3SCl-6\n\npossession and occupation of the property aforesaid together with all the rights appertaining thereto'. We are afraid that the claim for mesne profits cannot be included within this expression and the.High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint. The provision in regard to the mesne profits will therefore have to be deleted from the decree.\" In order to satisfy ourselves whether these observations related to the award of past mesne profits or to the award of future mesne profits we sent for the original record of this Court and we found that the High Court had awarded past as well as future mesne profits. Mr. S. T. Desai, appearing for the respondent No. 1 stated that a Full Bench in Babburu Basavayya and four others v. Babburu Gar(Jvayya and another(') following the decision of the Judicial Committee in Fakharuddin Mohomed Ahsan v. The Official Trustee(') has held that even after the passing of the preliminary decree, it is open to the court to give appropriate direction&y amongst other matters regarding future mesne profits either suo motu or on the application of the parties in order to prevent multiplicity of litigation and to do complete justice between the parties.\n\nThis decision has been followed in a large number of cases. In Bachepalli Atchamma v. Yerragupta Rami Reddy(') Simma, Krishnamma v. Nakka Latchumanaidu and others(') Kasibhaticl Satyanarayana $astrulu and other$ v. Kasibhat/a Mallikarjuna Sastru/u(') and Ponnuswami Udayar and another v. Santhappa(') the decision of this Court was cited at the Bar and has been consi- • dered. The learned Judges have said that the authority of the .. decision in Babburu Basavayya and four others v. Babburu Guravayya(') is not shaken by what this Court has said. One of the grounds given is that the former relates to a suit for partition while the latter to a suit for possession simpliciter. It is not necessary for us to consider whether the decision of this Court can be distinguished upon this ground, but we feel that when a suitable occasion arises it may become necessary to reconsider the decision of this Court as to future mesne profits. In the present case the plaintiff did claim not only partition and separate possession of her half share of the properties but also past mesne profits. The defendant No. 1 admitted the plaintiff's claim and in substance prayed for a similar decree in her favour. The decision of this Court would, therefore, not apply to a case like the one before us.\n\nIn the result therefore we uphold the decree of the High Court and dismiss the appeal with costs.\n\n(') I.L.R. 1952 Madras 173. (') 8 Cal. 178 (P. C.).\n\nI') A.LR. 1957 A.P. 52.\n\n(') A.I.R. 1958 A.P. 520.\n\n1') A.I.R. 1980 A.P. 45. (') A.I.R. 1963 Mad. 171.\n\nAppeal dismissed.", "total_entities": 54, "entities": [{"text": "R. S. MADANAPPA AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "R. S. MADANAPPA AND ORS", "offset_not_found": false}}, {"text": "CHANDRAMMA AND ANR", "label": "RESPONDENT", "start_char": 26, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "CHANDRAMMA AND ANR", "offset_not_found": false}}, {"text": "March 5, 1965", "label": "DATE", "start_char": 47, "end_char": 60, "source": "ner", "metadata": {"in_sentence": "March 5, 1965\n\n[K. N. WANCHOO, J. R. MUDHOLKAR ANDS."}}, {"text": "K. N. WANCHOO, J.", "label": "JUDGE", "start_char": 63, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO*", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 81, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "R. MUDHOLKAR", "offset_not_found": false}}, {"text": "s. 115", "label": "PROVISION", "start_char": 132, "end_char": 138, "source": "regex", "metadata": {"statute": null}}, {"text": "25-1-1941", "label": "DATE", "start_char": 1688, "end_char": 1697, "source": "ner", "metadata": {"in_sentence": "On appeal to thi~ Court against the decree in favour of the first defendant, it was contended on behalf of the other defendants: (i) that the first defendant was estopped by her conduct from claiming possession of her half share of the properties because (a) she\\ had not replied to a notice from the plaintiff to join with her in the suit for obtaining possession and division of the suit properties; (b)' she had written a letter to her step-mother stating that she wished to have no interest in the suit properties then in her father's possession;\n\n(c) she and her husband had attested a will executed by the father on 25-1-1941 which covered the disposition of the suit properties; and (d) that the first defendant's conduct was either covered by s. 115 Evidence Act or fell within the principle of \"equitable estoppel\"; (jjy even if the first defendant's claim to the half share in the suit properties could not be denied, she must be made to pay for half the cos~ of various improvements of those properties effected by the secondi defendant in the bona fide belief that the properties belonged to him, as she had acquiesced in the expenditure being incurred; (iii) that no decree can be passed in favour of a defendant who has not asked for transposition as plaintiff in the suit; and (iv) that it is not open to a1 court to award future mesne profits to a party who did not claim them in the suit."}}, {"text": "s. 115", "label": "PROVISION", "start_char": 1817, "end_char": 1823, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 115", "label": "PROVISION", "start_char": 3941, "end_char": 3947, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 99", "label": "PROVISION", "start_char": 4788, "end_char": 4793, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 4794, "end_char": 4799, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Supreme Court", "label": "COURT", "start_char": 4840, "end_char": 4853, "source": "ner", "metadata": {"in_sentence": "However that may be, the provisions of s. 99 C.P.C., would be a bar to interference by the Supreme Court with the High Court's decree upon such a gm1nd. ["}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 5163, "end_char": 5168, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 5590, "end_char": 5607, "source": "ner", "metadata": {"in_sentence": "of the Mysore High Court in Regular Appeal No."}}, {"text": "S. K. Venkatarangaiengar", "label": "OTHER_PERSON", "start_char": 5647, "end_char": 5671, "source": "ner", "metadata": {"in_sentence": "S. K. Venkatarangaiengar and A. G. Ratnaparkhi, for the appellants ,.,"}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 5676, "end_char": 5693, "source": "ner", "metadata": {"in_sentence": "S. K. Venkatarangaiengar and A. G. Ratnaparkhi, for the appellants ,.,"}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 5718, "end_char": 5729, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and Naunit Lal, for respondent No.", "canonical_name": "S. T. Desai"}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 5734, "end_char": 5744, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and Naunit Lal, for respondent No."}}, {"text": "K. K. Jain", "label": "LAWYER", "start_char": 5769, "end_char": 5779, "source": "ner", "metadata": {"in_sentence": "K. K. Jain, for respondent No."}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 5847, "end_char": 5856, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Mudholkar, J. This is an appeal by defendants Nos.", "canonical_name": "R. MUDHOLKAR"}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 5928, "end_char": 5948, "source": "ner", "metadata": {"in_sentence": "3 to 8 from a decision ol the High Court of Mysore passing a decre;: in favour of respondent No."}}, {"text": "court of the District Judge, Bangalore", "label": "COURT", "start_char": 6282, "end_char": 6320, "source": "ner", "metadata": {"in_sentence": "The relevant facts are briefly these: The plaintiff who is the elder sister of the first defendant instituted a suit in the court of the District Judge, Bangalore for a declaration that she is the owner of half share in the properties described in the schedule to the plaint and for partiticn and' separate possession of half share and for mesne\n\nlil\n\n1\\.S. MA.DANAPPA ~. CHANDRAlOlA (MuiJholkar, J.) 285\n\nprofits."}}, {"text": "MuiJholkar", "label": "JUDGE", "start_char": 6543, "end_char": 6553, "source": "ner", "metadata": {"in_sentence": "The relevant facts are briefly these: The plaintiff who is the elder sister of the first defendant instituted a suit in the court of the District Judge, Bangalore for a declaration that she is the owner of half share in the properties described in the schedule to the plaint and for partiticn and' separate possession of half share and for mesne\n\nlil\n\n1\\.S. MA.DANAPPA ~. CHANDRAlOlA (MuiJholkar, J.) 285\n\nprofits.", "canonical_name": "R. MUDHOLKAR"}}, {"text": "Puttananjamma", "label": "OTHER_PERSON", "start_char": 6648, "end_char": 6661, "source": "ner", "metadata": {"in_sentence": "According to her the suit property was the absolute property of her mother Puttananjamma and .upon her death this property devolved on her and the first defendant as her mother's heirs."}}, {"text": "R. S. Maddanappa", "label": "RESPONDENT", "start_char": 6972, "end_char": 6988, "source": "ner", "metadata": {"in_sentence": "It is common ground that the property was in the possession of the second defendant R. S. Maddanappa, the father of the plaintiff and the first defendant and Gargavva, the second wife of Maddanappa and her children.", "canonical_name": "R. S. MADANAPPA AND ORS"}}, {"text": "Gargavva", "label": "OTHER_PERSON", "start_char": 7046, "end_char": 7054, "source": "ner", "metadata": {"in_sentence": "It is common ground that the property was in the possession of the second defendant R. S. Maddanappa, the father of the plaintiff and the first defendant and Gargavva, the second wife of Maddanappa and her children."}}, {"text": "Maddanappa", "label": "RESPONDENT", "start_char": 7075, "end_char": 7085, "source": "ner", "metadata": {"in_sentence": "It is common ground that the property was in the possession of the second defendant R. S. Maddanappa, the father of the plaintiff and the first defendant and Gargavva, the second wife of Maddanappa and her children.", "canonical_name": "Maddanappa"}}, {"text": "Madanappa", "label": "RESPONDENT", "start_char": 7104, "end_char": 7113, "source": "ner", "metadata": {"in_sentence": "Madanappa died during the pendency of the appeal before thh Court and his legal representatives are the other defendants to\n\nth,• suit.", "canonical_name": "Maddanappa"}}, {"text": "Gowramma", "label": "OTHER_PERSON", "start_char": 7386, "end_char": 7394, "source": "ner", "metadata": {"in_sentence": "I is that though the suit properties belonged to Gowramma, the mother of Puttananjamma, she had settled them orally on the latter as well as on himself and that after the death of Puttananjamma he has been in possession of those properties and enjoying them as full owner."}}, {"text": "Section 51", "label": "PROVISION", "start_char": 8405, "end_char": 8415, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 8423, "end_char": 8447, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Articles 133(1)(a) and 133(])(c)", "label": "PROVISION", "start_char": 9812, "end_char": 9844, "source": "regex", "metadata": {"statute": null}}, {"text": "Venkatarangaiengar", "label": "OTHER_PERSON", "start_char": 10279, "end_char": 10297, "source": "ner", "metadata": {"in_sentence": "Mr. Venkatarangaiengar, who appears for the appellants accepts the position that as the'certificate was refused to defendants Nos."}}, {"text": "17th January, 1941", "label": "DATE", "start_char": 11305, "end_char": 11323, "source": "ner", "metadata": {"in_sentence": "The conduct of the first defendant from which the learned counsel wants us to draw the inference of estoppel consts of her attitude when she was served with a notice by the plaintiff, her general attitude respecting\n\nI!angalore properties as expressed in the letter dated 17th January, 1941 written by her to her step-mother and the attestation by her and her husband on 3-10-1944 of the will executed on 25th January, 1941 by Maddanappa."}}, {"text": "3-10-1944", "label": "DATE", "start_char": 11404, "end_char": 11413, "source": "ner", "metadata": {"in_sentence": "The conduct of the first defendant from which the learned counsel wants us to draw the inference of estoppel consts of her attitude when she was served with a notice by the plaintiff, her general attitude respecting\n\nI!angalore properties as expressed in the letter dated 17th January, 1941 written by her to her step-mother and the attestation by her and her husband on 3-10-1944 of the will executed on 25th January, 1941 by Maddanappa."}}, {"text": "25th January, 1941", "label": "DATE", "start_char": 11438, "end_char": 11456, "source": "ner", "metadata": {"in_sentence": "The conduct of the first defendant from which the learned counsel wants us to draw the inference of estoppel consts of her attitude when she was served with a notice by the plaintiff, her general attitude respecting\n\nI!angalore properties as expressed in the letter dated 17th January, 1941 written by her to her step-mother and the attestation by her and her husband on 3-10-1944 of the will executed on 25th January, 1941 by Maddanappa."}}, {"text": "26th January, 1948", "label": "DATE", "start_char": 11492, "end_char": 11510, "source": "ner", "metadata": {"in_sentence": "In the notice dated 26th January, 1948 by the plaintiff's lawyer to the first defendant it was stated that the plaintiff and the first defendant were joint owners of the suit properties which were in the possession of their father and requested."}}, {"text": "17-1-1941", "label": "DATE", "start_char": 12364, "end_char": 12373, "source": "ner", "metadata": {"in_sentence": "15, which is a letter sent by her en 17-1-1941 to her step-mother she has observed thus:\n\n\"I have no desire whatsoever in respect of the properties which are at Bangalore."}}, {"text": "Bangalore", "label": "GPE", "start_char": 12488, "end_char": 12497, "source": "ner", "metadata": {"in_sentence": "15, which is a letter sent by her en 17-1-1941 to her step-mother she has observed thus:\n\n\"I have no desire whatsoever in respect of the properties which are at Bangalore."}}, {"text": "Maddan", "label": "RESPONDENT", "start_char": 13714, "end_char": 13720, "source": "ner", "metadata": {"in_sentence": "This 'will' purports to make a disposition of the suit properties along with other properties by Maddan appa in favour of defendants Nos.", "canonical_name": "Maddanappa"}}, {"text": "Maddanappa", "label": "RESPONDENT", "start_char": 14607, "end_char": 14617, "source": "ner", "metadata": {"in_sentence": "Apart from that there is nothing on the record to show that by reason of the conduct of the first defendant Maddanappa altered his position to his disadvantage.", "canonical_name": "Maddanappa"}}, {"text": "Section 115", "label": "PROVISION", "start_char": 15405, "end_char": 15416, "source": "regex", "metadata": {"statute": null}}, {"text": "s 115", "label": "PROVISION", "start_char": 16225, "end_char": 16230, "source": "regex", "metadata": {"statute": null}}, {"text": "s2", "label": "PROVISION", "start_char": 18391, "end_char": 18393, "source": "regex", "metadata": {"statute": null}}, {"text": "Brett", "label": "JUDGE", "start_char": 18489, "end_char": 18494, "source": "ner", "metadata": {"in_sentence": "R.S. MADANAPPA v. CHANDRAMMA (Mudhotkar, J.) 289\n\nwere laid down by Brett, J. (afterwards Lord Reher) the third o~ which rum thus:\n\n\"If a man either in express terms or by conduct makes a representation to another of the existence of a certain stattl of facts which he intends to be acted upon in a certain way, and it be acte:l upon in the belief of the existence of such a: state of facts, to the damage 'Of him who so believes and acts, the first is estoppel from denying the existence of such a state of facts,\"\n\nThis also shows that the person claiming benefit of the doctrine must show that he has acted to his detriment on the faith of the representation made to him."}}, {"text": "Reher", "label": "OTHER_PERSON", "start_char": 18516, "end_char": 18521, "source": "ner", "metadata": {"in_sentence": "R.S. MADANAPPA v. CHANDRAMMA (Mudhotkar, J.) 289\n\nwere laid down by Brett, J. (afterwards Lord Reher) the third o~ which rum thus:\n\n\"If a man either in express terms or by conduct makes a representation to another of the existence of a certain stattl of facts which he intends to be acted upon in a certain way, and it be acte:l upon in the belief of the existence of such a: state of facts, to the damage 'Of him who so believes and acts, the first is estoppel from denying the existence of such a state of facts,\"\n\nThis also shows that the person claiming benefit of the doctrine must show that he has acted to his detriment on the faith of the representation made to him."}}, {"text": "Cranworth", "label": "OTHER_PERSON", "start_char": 20263, "end_char": 20272, "source": "ner", "metadata": {"in_sentence": "Finally on this aspect of the case the learned counsel referred to the observations of Lord Cranworth in Ramsden v. Dyson(') which are as follows:\n\n\"If a stranger begins to build on my land supposing it to be his own and I (the real owner) perceiving his mistake, abstain from setting him right, a!nd leave him to persevere in his error, a court of equity will not allow me afterwards to assert my title to the land, on which he has expended money on the supposition, that the land was his own."}}, {"text": "L. R. 19 I.A. 20", "label": "CASE_CITATION", "start_char": 21149, "end_char": 21165, "source": "regex", "metadata": {}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 23254, "end_char": 23259, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 99", "label": "PROVISION", "start_char": 24244, "end_char": 24249, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "R.S. MADANAPPA", "label": "PETITIONER", "start_char": 24364, "end_char": 24378, "source": "ner", "metadata": {"in_sentence": "(') L.R. 58 l.A. 22~.\n\nR.S. MADANAPPA '<'.", "canonical_name": "R. S. MADANAPPA AND ORS"}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 25019, "end_char": 25024, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 26637, "end_char": 26645, "source": "ner", "metadata": {"in_sentence": "While upholding this contention Bhagwati J. who delivered the judgment of the Court has observed thus:\n\n\"The learned Solicitor-Genera!"}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 27661, "end_char": 27672, "source": "ner", "metadata": {"in_sentence": "Mr. S. T. Desai, appearing for the respondent No.", "canonical_name": "S. T. Desai"}}]}
{"document_id": "1965_3_293_299_EN", "year": 1965, "text": "NATIONAL BANK OF LAHORE LTD\n\nSOHANLAL SEHGAL AND OTHERS\n\nMarch 5, 1965\n\n[K. SuBBA RA:o, J. c. SHAH AND R. s. BACHAWAT, JJ.] Limitation Act, 1908, First Schedule, Articles 36 and 115-Scope of The respondents hired Jockers in the safe deposit vaults from the appellant bank at J ullundur through its manager under different agreements on various dates during 1950. In April 1951, the lockers were tampered with and the valuables of the respondents kept in them were removed by the Manager. In due course the Manager was prosecuted and convicted for theft. The respondents filed three suits against t)le bank for the recovery of different sums being the value of the contents of ihe lockers which had been removed. The bank denied\n\nits liability on various grounds and also contended that the suits were barred by l\\mitation. .\n\nThe trial court held that the Bank was liable to bear the loss incurred by the respondents and that the suits were not barred by !imitation. On appeal, the High Court accepted the findings of the trial court on both the questions and dismissed the appeals.\n\nIn the appeal before the Supreme Court, only the question of limitation was raised. It was contended on behalf of the appellants on the facts found that the suit was barred by !imitation as the theft of the valuables by the Manager was a tort committed by him dehors the contracts entered into by the appellant with the respondents and, therefore, Article 36 of the Limitation Act which required that a suit must be instituted within two years applied, and not Art. 115, which provided for a period of limitation of three years; that the suits were1\n\nnot based on a breach of contract committed ty the bank but only the theft committed bi its agent dehors the terms of the contract.\n\nHELD: The suit claims, being ex contractu, were clearly govern ed by Article 115 of the First Schedule to the Limitation Act and not\n\nby Article 36. [298 FJ\n\nThere were clear allegations in the plaint that the appellant committed breach of contract in not complying with some of the conditions thereof and that the appellant understood those allegations in\n\nthat light and traversed them. [298 E]\n\nEven ii the respondents' claim was solely based on the fraud committed by the manager during the course of his employment, such a claim could Il'J! fall under Art. 36. To attract.Art. 36, the misfeasance must be :ndcpendent of contract. The fraud of the manager committed in the course of his employment must be deemed to be a fraud of the principal, i.e. the Bank must be deemed to have permitted its manager to commit theft in violation of the terms of the contracts.\n\nWhile under the contracts the bank was under an obligation to provide good lockers and not to permit access to the safe except to\n\npersons mentioned in the contracts, in v'oJation of these terms the bank gave defective lockers and gave access to the manager, thus facilitating the theft. In either case the wrong committed was not independent of the contract but directly arose out of the breach of contract. [298 G, HJ\n\n2~)4 SUPR.E:M:E COURfr REPORTS [1965] 3 s.c.11.\n\nC1v1L APPELLATE JURISDICTION: Civil Appeals Nos. 929, 930 A and 931 of 1963.\n\nAppeals by special leave from the judgment and decree dated October 11, 1961 of the Punjab High Court in Regular First Appeals Nos. 136, 137 and 138 of 1959.\n\nHans Raj Sawhney and B. C. Misra, for the appellant (in all B the appeals). ·\n\nB. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for the respondents (In C.A. No. 229 of 1963).\n\nV. D. Mahajan, for the respondent. (In' C.A. No. 930 of 1963).\n\nKanwar Rajendra Singh and Vidya Sagar Nayyar, for the respondent (In C.A. No. 931 of 1963).\n\nThe Judgment of the Court was delivered by\n\nSobba Rao, J. These appeals by special leave raise a question of limitation. . The National Bank of Lahore Limited, hereinafter called the Bank, is a banking concern registered under the Indian Ccmpanies\n\nAct and having its registered office in Delhi and branches at different places in India. Though its main business is banking, it carries on the incidental business of hiring out lockers out of cabi- nets in safe deposit vaults to constituents for safe custody of their E jewels and other valuables. It has one such safe deposit vault at its branch in Jullundur. The respondents herein hired lockers on rental basis from the Bank at J ullundur through its Manager under different agreements on different dates during the year 1950. In April 1951 the said lockers were tampered with and the valuables F of the respondents kept therein were removed by the Manager of the Jullundur branch of the Bank. In due course the said Manager was prosecuted before the Additional District Magistraite, Jullundur, and was convicted under ss. 380 and 409 of the Indian Penal Code. The respondents filed 3 suits in the Court of the Subordinate Judge, Jullundur, against the Bank for the recovery of different sums on account of the Joss of the valuable contents of the lockers hired by them. The Bank denied its liability on various grounds and also contended that the suits were barred by limit~- tion.\n\nThe learned Subordinate Judge held that the Bank was liable\n\nto bear the loss incurred by the plaintiffs and that the suits were H not barred by limitation. On appeal, the High Court of Punjab accepted the findings of the learned Subordinate Judge on both the questions and dismissed the appeals. The present appeals arise out of the said judgment of the High Court.\n\nThe only question raised in these appeals is one of limitation . .Before considering the question of , limitation it is necessary to\n\nNATIONAL BANK OF LAHORE V. SOHANLAL (Subba Rao, J.) 295\n\nnotice briefly the findings of fact arrived at by the High Court. TI, le High Court summarized its findings thus:\n\n(I) The whole object of a safe deposit vault in which customers of a Bank can rent lockers for placing their valuables is to ensure their safe custody. The appellant-Bank had issued instructions and laid down a detailed procedure for ensuring that safety but in actual practice the Manager alone had been made the custodian with fulL control over the keys of the strong room and a great deal of laxity had been observed in haVing no check whatsoever. on him.\n\n(2) The lockers had been rented out to the plaintiffs by the Manager Baldev Chaud, who was entrusted with the: duty of doing so. It was he who had intentionally rented out such lockers to the plaintiffs which had been tampered with by him. This constituted a fraud on his part there being an implied representation to the , plaintiffs that the lockers were in a good and sound condition.\n\n(3) Although the Bank authorities were not aware of what Baldev Chand was doing, but the fraud, which he perpetrated, was facilitated and was the result of the gross laxity and negligence on !ht< part of the Bank authorities.\n\n(4) The lockers were indisputably being let out by the Manager to secure rent for the Bank.\n\nHaving found the said facts, the High Court held that the fraud was committed by the Manager acting within the scope of his authority and, therefore, the Bank was liable for the loss incurred by tlje respondents. Then it proceeded to consider the question of limitation from three aspects, namely, (i) the loss was caused to the respondents. as the Manager of the Bank committed fraud in the course of hi~ employment: (ii) there was a breach of the implied condition of the contract. namely, that only such lockers would be rented out which were safe and sound and which were capable of being operated in the manner set out in the contract; and (iii) there was a relationship of bailor and bailee between the respondents and the Bank, and therefore the Bank would be liable on the basis of the contract of bailment. It held that from whatever aspect the question was approached Art. 36 of the First Schedule to the Limitation Act would he out of place and the respondents' claims would be governed by either Art. 95 or some other article of the Limitation Act.\n\nLearned counsel for the appellant accepted the findings of fact, but contended that on the facts found the suits were barred by limitation. Elaborating the argument the learned counsel pointed out that the theft of the valuables by the Manager was a tort committed by him dehors the contracts entered into by the appellant with the respondents and, therefore, Art. 36 of the First Schedule\n\n2!-JH RlTPRE]tfE COLRT REPORTS [1965) 3 s.c.R.\n\ntqf!he Limittion Act was immediately attracted to the respondent>' A claims.\n\nThe scope of Art. 36 of the First Schedule to the Limitation Act is fairly well settled. The said article says that the period of limitation \"for compensation for any malfeasance, misfeasance or nonfeasance independent of contract and not herein specifically rrovided for\" is two vears from the time when the malfeasance, misfeasance or nonfeasance takes place. If this article applied, the suits having been filed more than 2 years after the loss of the articles deposited with the Bank, they would be clearly out of time. Article 36 applied to acts or omissions commonly known as torts by English l:iwyers. They are wrongs independent of contract. Article 36 applies to actions \"ex de/icto\" whereas Art. 115 applies to actions \"ex contractu''. \"These torts are often considered as of three kinds, viz., non-feasance or the omissicn of some act which a man is by\n\nlaw bound to do, misfeasance, being the improper performance of some lawful act, or malfeasance, being the commission of some act which is in itself unlawful\". But to attract Art. 36 these wrongs shall D be independent of contract. The meaning of the words \"independent of contract\" has been felicitously brought out by Greer, L.J., in Jarvis v. Moy, Davies, Smith, Vandervei/ and Co.(') thus:\n\n\"The distinction in the modern view, for this purpose, between contract and tort may be put thus. Where the breach of duty alleged arises out of a liability independently of the personal obligation undertaken by contract it is tort and it may be tort even though there may happen to be a contract between the parties, if the duty in fact arises independently of that contract. Breach of contract occurs where that which is complained of is a breach of duty arising out of the obligations undertaken by the contract.\"\n\nIf the suit claims are for compensation for breach of the terms of the contracts, this article has no application and the appropriate article is Art. 115, which pwvides a period of 3 years for compenst1tion. for the breach of any contract, express or implied, from the <late when the contract is broken. If the suit claims are based on a wrong committed by the Bank or its agent dehors the contract.\n\nArt. 36 will be attracted .\n\n• Let us now apply this legal position to the claims in question.\n\nOne of the contracts that was entered into between the plaintiffs and the Bank is dated February 5, J 951. It is not disputed that the other two contracts, with which we arc concerned, also are of the same p:Htern. Under that contract the Bank, the appellant herein, and Sohanlal Sehgal, one of the respondents herein, agreeC: \"to hire. subject to the conditions endorsed, the company's safe No. 1651 I\n\n---··~---------- (I) [1036] l K. H. 3{)(l, 40.J.\n\nNATIONAL BANK OF LAHORE t'. SORANLAL (Subba Rao, J.) 297\n\n2203 Class lower for one year from this day at a rent of Rs. 40\".\n\nThe relevant conditions read as follows:\n\nl 4. It is agreed that the connection of the renter of the safe and the Bank (and it has no connection) is that of a lessor and Jessee for the within mentioned safe and not that of a banker and customer.\n\n15. The liability of the company in respect of property deposited in the said safe is limited to ordinary care in the performance by employees and officers of company of their duties and shall consist only of (a) keeping the safe in vault where located when this rental contract is entered into or in one of equal specifications, the door to which safe shall be locked at all time except when an officer or an employee is present, (b) allowing no person access to said safe, except hirer or authorised deputy, or attorney in fact having special power to act identificatio'n by signature being sufficient or Iiis/her legal representative in the case of death, insolvency or other disability of Hirer, except as herein expressly stipulated. An unauthorised opening shall be presumed or inferred from proof of partial or total loss of contents.\n\n16. The company shall not be liable for any delay caused by the failure of the vault doors or locks to operate.\n\n17. The company shall not be liable for any loss etc.\n\nThe only purpose of the contract was to ensure the safety of the :1rticlcs deposited in the safe deposit vault. It was implicit in the contract that the Jockers supplied must necessarily be in a good condition to achieve that purpose and, therefore, that they should be in a reasonably perfect condition. It was an implied term of such a contract. Condition 15 imposed another obligation on the Bank to achieve the same purpose, namely, that the Bank should not allow access to any person to the safe except the hirer or his authorised agent or attorney. If the articles deposited were lost because cne or other of these two conditions was broken by the Bank, the renter would eertainly be entitled to recover damages for the said breach. Such a claim would be ex contractu and not ex delicto and for such a claim Art. II 5 of the First Schedule to the Limitation Act applied and not Art. 36 thereof.\n\nLearned counsel for the appellant contended that the suits were not based upon the breach of a contract committed by the Banki but only the theft committed by its agent dehors the terms of the contract. This leads us to the consideration of the scope of the plaints presented by the respondents. It would be enough if we take one of the plaints as an example, for others also run on the same lines. Let us take the plaint in Civil Suit No. 141 of 1954, i.e., the 'uit filed by Sohanlal Sehgal and others against the Bank for the recovery of a sum of Rs. 26,500. We have carefully gone through\n\n298 SUPREri.IE\n\nCOURT\n\nREPORTS [1965] 3 s.c.R.\n\nthe plaint, particularly paragraphs 8, 9 and 10 thereof. It will be seen from the 'plaint that though it was not artistically drafted the relief was claimed mainly on two grounds, namely, (i) th.1t it was an implied term of the contract that the locker rented was in a good condition, and (ii) the valuables were lost because the Manager, on account of the negligence of the Bank in not taking all the necessary precautions, committed theft of the articles in the course of his employment. In the written-statement the defendant denied its liability both under the terms of the contract and also on the basis that it was not liable for the agent's fraud. The High Court found that at the time when the lockers were rented out they were in a defective condition and that the Bank, in actual practice, made the Manager the sole custodian with full control over the keys of the strong, room and permitted a great deal of laxity in not having any check whatsoever on him. In this state of the pleadings and the findings it is not possible to accept the contention of the learned counsel for the appellant that the plaintiffs did not base their claims on the branch of the conditions of the contracts. This argument is in the teeth of the allegations made in the plaint, evidence adduced and the arguments advanced in the Courts below and the findings arrived at by them. While ..ye concede that the plaint could have been better drafted and couched in a clearer language, we cannot accede to the contention that the plaints were solely based upon the fraud of the Manager in the course of his employment. We, therefore, hold that there were clear allegations in the plaints that the defendant committed breach of the contracts in not complying with some ot the conditions thereof and that the defendant understood those allegations in that light and traversed them. The suit claims, being <'x contractu, were clearly governed by Art. 115 of the First Schedule to the Limitation Act and not by Art. 36 thereof.\n\nIf Art. 115 applied, it is not disputed that the suits were within time.\n\nEven if the claim was .solely based on the fraud committed by the Manager during the course of his employment. we do not see how such a claim fell under Art. 36 of the First Schedule to the Limitation Act. To attract Art. 36, the misfeasance shall be independent of contract. The fraud of the Manager committed in the course of his employment is deemed to be a fraud of the principal, that is to say the Bank must be deemed to have permitted its manager to commit theft in violation of the terms of the contracts. While under the contracts the Bank was under an obligation to give to the respondents good lockers. ensuring safety and protection against theft, it gave defective ories facilitating theft; while under the contracts it should not permit access to the safe to persons other than those mentioned in the contracts, in violation of the terms thereof it gave access to its Manager and enabled him to ccmmit theft. In either case the wrong committed was not independent of the contract. but it dirctly aros~ out of the breach of the contract.\n\n:SAT!ONAL BAXK OF LAHORE v. SOHA:SLAL (.S11bbo Rao, J.) ~'99\n\nln such circumstances Art. 36 is out of place. The competition between Arts. 115 and 120 to take its place need not be considered. for neither of those Articles hits the claim, as the suits are within 3 years, which is the shorter of the two periods of limitation prescribed under the said two Articles.\n\nIn this view it is not necessary to express our view on the question whether the contracts in question were of bailment.\n\nIn the result, the appeals fail and are dismissed with costs one hearing fee.\n\nAppeals dismissed.", "total_entities": 76, "entities": [{"text": "LTD\n\nSOHANLAL SEHGAL AND OTHERS", "label": "RESPONDENT", "start_char": 24, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "SOHANLAL SEHGAL AND OTHERS", "offset_not_found": false}}, {"text": "March 5, 1965", "label": "DATE", "start_char": 57, "end_char": 70, "source": "ner", "metadata": {"in_sentence": "NATIONAL BANK OF LAHORE LTD\n\nSOHANLAL SEHGAL AND OTHERS\n\nMarch 5, 1965\n\n[K. SuBBA RA:o, J. c. SHAH AND R. s. 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C. Misra, for the appellant (in all B the appeals). ·"}}, {"text": "B. C. Misra", "label": "LAWYER", "start_char": 3365, "end_char": 3376, "source": "ner", "metadata": {"in_sentence": "Hans Raj Sawhney and B. C. Misra, for the appellant (in all B the appeals). ·"}}, {"text": "B. R. L. Iyengar", "label": "LAWYER", "start_char": 3423, "end_char": 3439, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for the respondents (In C.A. No."}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 3441, "end_char": 3452, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for the respondents (In C.A. No."}}, {"text": "K. L. Mehta", "label": "LAWYER", "start_char": 3457, "end_char": 3468, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for the respondents (In C.A. No."}}, {"text": "V. D. Mahajan", "label": "LAWYER", "start_char": 3518, "end_char": 3531, "source": "ner", "metadata": {"in_sentence": "V. D. Mahajan, for the respondent. ("}}, {"text": "Kanwar Rajendra Singh", "label": "LAWYER", "start_char": 3582, "end_char": 3603, "source": "ner", "metadata": {"in_sentence": "Kanwar Rajendra Singh and Vidya Sagar Nayyar, for the respondent (In C.A. No."}}, {"text": "Vidya Sagar Nayyar", "label": "LAWYER", "start_char": 3608, "end_char": 3626, "source": "ner", "metadata": {"in_sentence": "Kanwar Rajendra Singh and Vidya Sagar Nayyar, for the respondent (In C.A. No."}}, {"text": "Sobba Rao", "label": "JUDGE", "start_char": 3719, "end_char": 3728, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSobba Rao, J. These appeals by special leave raise a question of limitation. .", "canonical_name": "Sobba Rao"}}, {"text": "National Bank of Lahore Limited", "label": "PETITIONER", "start_char": 3802, "end_char": 3833, "source": "ner", "metadata": {"in_sentence": "The National Bank of Lahore Limited, hereinafter called the Bank, is a banking concern registered under the Indian Ccmpanies\n\nAct and having its registered office in Delhi and branches at different places in India.", "canonical_name": "National Bank of Lahore Limited"}}, {"text": "Delhi", "label": "GPE", "start_char": 3964, "end_char": 3969, "source": "ner", "metadata": {"in_sentence": "The National Bank of Lahore Limited, hereinafter called the Bank, is a banking concern registered under the Indian Ccmpanies\n\nAct and having its registered office in Delhi and branches at different places in India."}}, {"text": "India", "label": "GPE", "start_char": 4006, "end_char": 4011, "source": "ner", "metadata": {"in_sentence": "The National Bank of Lahore Limited, hereinafter called the Bank, is a banking concern registered under the Indian Ccmpanies\n\nAct and having its registered office in Delhi and branches at different places in India."}}, {"text": "Jullundur", "label": "GPE", "start_char": 4275, "end_char": 4284, "source": "ner", "metadata": {"in_sentence": "It has one such safe deposit vault at its branch in Jullundur."}}, {"text": "J ullundur", "label": "GPE", "start_char": 4356, "end_char": 4366, "source": "ner", "metadata": {"in_sentence": "The respondents herein hired lockers on rental basis from the Bank at J ullundur through its Manager under different agreements on different dates during the year 1950."}}, {"text": "Additional District Magistraite, Jullundur", "label": "COURT", "start_char": 4679, "end_char": 4721, "source": "ner", "metadata": {"in_sentence": "In due course the said Manager was prosecuted before the Additional District Magistraite, Jullundur, and was convicted under ss."}}, {"text": "ss. 380 and 409", "label": "PROVISION", "start_char": 4747, "end_char": 4762, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 4770, "end_char": 4787, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Court of the Subordinate Judge, Jullundur", "label": "COURT", "start_char": 4826, "end_char": 4867, "source": "ner", "metadata": {"in_sentence": "The respondents filed 3 suits in the Court of the Subordinate Judge, Jullundur, against the Bank for the recovery of different sums on account of the Joss of the valuable contents of the lockers hired by them."}}, {"text": "High Court of Punjab", "label": "COURT", "start_char": 5284, "end_char": 5304, "source": "ner", "metadata": {"in_sentence": "On appeal, the High Court of Punjab accepted the findings of the learned Subordinate Judge on both the questions and dismissed the appeals."}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 5651, "end_char": 5660, "source": "ner", "metadata": {"in_sentence": ".Before considering the question of , limitation it is necessary to\n\nNATIONAL BANK OF LAHORE V. SOHANLAL (Subba Rao, J.) 295\n\nnotice briefly the findings of fact arrived at by the High Court.", "canonical_name": "Sobba Rao"}}, {"text": "Baldev Chaud", "label": "OTHER_PERSON", "start_char": 6315, "end_char": 6327, "source": "ner", "metadata": {"in_sentence": "(2) The lockers had been rented out to the plaintiffs by the Manager Baldev Chaud, who was entrusted with the: duty of doing so.", "canonical_name": "Baldev Chaud"}}, {"text": "Baldev Chand", "label": "OTHER_PERSON", "start_char": 6692, "end_char": 6704, "source": "ner", "metadata": {"in_sentence": "(3) Although the Bank authorities were not aware of what Baldev Chand was doing, but the fraud, which he perpetrated, was facilitated and was the result of the gross laxity and negligence on !", "canonical_name": "Baldev Chaud"}}, {"text": "Art. 36", "label": "PROVISION", "start_char": 7833, "end_char": 7840, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 7848, "end_char": 7862, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 7870, "end_char": 7884, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 95", "label": "PROVISION", "start_char": 7963, "end_char": 7970, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 8000, "end_char": 8014, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 36", "label": "PROVISION", "start_char": 8377, "end_char": 8384, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 8392, "end_char": 8406, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 36", "label": "PROVISION", "start_char": 8547, "end_char": 8554, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 8562, "end_char": 8576, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 8584, "end_char": 8598, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 36", "label": "PROVISION", "start_char": 9058, "end_char": 9068, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 36", "label": "PROVISION", "start_char": 9184, "end_char": 9194, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 115", "label": "PROVISION", "start_char": 9235, "end_char": 9243, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 36", "label": "PROVISION", "start_char": 9574, "end_char": 9581, "source": "regex", "metadata": {"statute": null}}, {"text": "Greer", "label": "JUDGE", "start_char": 9719, "end_char": 9724, "source": "ner", "metadata": {"in_sentence": "The meaning of the words \"independent of contract\" has been felicitously brought out by Greer, L.J., in Jarvis v. Moy, Davies, Smith, Vandervei/ and Co.(') thus:\n\n\"The distinction in the modern view, for this purpose, between contract and tort may be put thus."}}, {"text": "Art. 115", "label": "PROVISION", "start_char": 10457, "end_char": 10465, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 36", "label": "PROVISION", "start_char": 10713, "end_char": 10720, "source": "regex", "metadata": {"statute": null}}, {"text": "February 5, J 951", "label": "DATE", "start_char": 10897, "end_char": 10914, "source": "ner", "metadata": {"in_sentence": "One of the contracts that was entered into between the plaintiffs and the Bank is dated February 5, J 951."}}, {"text": "Sohanlal Sehgal", "label": "RESPONDENT", "start_char": 11080, "end_char": 11095, "source": "ner", "metadata": {"in_sentence": "Under that contract the Bank, the appellant herein, and Sohanlal Sehgal, one of the respondents herein, agreeC: \"to hire.", "canonical_name": "SOHANLAL SEHGAL"}}, {"text": "NATIONAL BANK OF LAHORE", "label": "RESPONDENT", "start_char": 11263, "end_char": 11286, "source": "ner", "metadata": {"in_sentence": "1651 I\n··~---------- (I) [1036] l K. H. 3{)(l, 40.J.\n\nNATIONAL BANK OF LAHORE t'.", "canonical_name": "National Bank of Lahore Limited"}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 13477, "end_char": 13491, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 13499, "end_char": 13513, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 36", "label": "PROVISION", "start_char": 13530, "end_char": 13537, "source": "regex", "metadata": {"statute": null}}, {"text": "Sohanlal Sehgal", "label": "RESPONDENT", "start_char": 14025, "end_char": 14040, "source": "ner", "metadata": {"in_sentence": "141 of 1954, i.e., the 'uit filed by Sohanlal Sehgal and others against the Bank for the recovery of a sum of Rs.", "canonical_name": "SOHANLAL SEHGAL"}}, {"text": "Art. 115", "label": "PROVISION", "start_char": 16115, "end_char": 16123, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 16131, "end_char": 16145, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 16153, "end_char": 16167, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 36", "label": "PROVISION", "start_char": 16179, "end_char": 16186, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 115", "label": "PROVISION", "start_char": 16200, "end_char": 16208, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 36", "label": "PROVISION", "start_char": 16424, "end_char": 16431, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 16439, "end_char": 16453, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 16461, "end_char": 16475, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 36", "label": "PROVISION", "start_char": 16488, "end_char": 16495, "source": "regex", "metadata": {"statute": null}}, {"text": "S11", "label": "PROVISION", "start_char": 17363, "end_char": 17366, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 36", "label": "PROVISION", "start_char": 17407, "end_char": 17414, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 115 and 120", "label": "PROVISION", "start_char": 17456, "end_char": 17473, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_300_306_EN", "year": 1965, "text": "ABDUL KARIM KHAN AND ORS. v.\n\nMUNICIPAL COMMITTI:E, RAIPUR March 8, 1965\n\n[P. B. GAJENDRAGADKAR, C. J. RAGHUBAR DAYAL\n\nAND V. RAMASWAMI, JJ.] Madhya Prad.esh Public Trusts Act (30 of 1951}-Entry by Registrar that property be]ongs to Public trust-If conclusive against real owner.\n\nThe first appellant, who was the Mufawalli of a putlic trust, filed a representative suit for an injunction restraining the respondent from committing acts of encroachment on the suit property, on the ground that the property was that of the trust and had been so registered by the Registrar of Public Trusts, under the Madhya Pradesh Public Trusts Act, 1951. The suit was dismissed by the trial court and also on appeal.\n\nIn their appeal to the Supreme Court the appellants contended that, since the respondent did not avail itself of the right to file a suit within the specified time, the order passed by the Registrar must be held to be final and conclusive against the respondent.\n\nHELD: The fact that the property in suit was added to the list of the properties belonging to the trust, could not affect the respondent's title. to it. [306 A-BJ The enquiry which the Act contemplates is an enquiry into the question as to whether a trust is public or private and does not take within its sweep questions as to whether a property belongs to a private individual and is not the subject matter of any trust at all. The only persons who are required to file their objections in proceedings before the Registrar are persons interested in the public trust-not petsons who dispute the existence of the trust or who challenge the allegation that any property belongs to the said trust. Inasmuch as the respondent was not a party to the proceedings and could not have filed any otjections in the proceedings the respondent was not bound to file an appeal under s. 4(5) of !ht Act or a suit under s. 8(1). challenging order of the Registrar.\n\nTherefore, the finality given to the finding of the Registrar could not be availed of by the appellant as against the respondent.\n\n[304 G; 305 A-B, D-E] CrvIL APPELLATE JURISDICTION : Civil Appeal No. 871 of 1962.\n\nAppeal by special leave from the judgment and decree dated August 13, 1959, of the Madhya Pradesh High Court in Second Appeal No. 294 of 1959.\n\nS. P. Sinha and M. I. Khowa; a, for the appellant.\n\nS. T. Desai and A. G. Ratnaparkhi, for the respopdent.\n\nThe Judgment of the Court was delivered by Gajendragadkar, C . .J; This appeal arises from a suit filed by the appellants who are the representatives of. residents. of Nayapara Ward in particular and of the Muslill1 community of Raipur in general, in whichthey claimed an injunction restraining the respondent, 1\\iunicipal Committee of Raipur, from committing acts of encroachmel\\t on their rights and the rights of\n\nABDUi. K.\\RDI KHAN v. >!UXICIPAL COM~IITTEE RAIPUR (Gajendragadkar, c. J.) 301\n\nA the Muslim community in holding U rs and other ceremonies on the plot in suit. It appears that at Raipur, there is a piece of land called \"Fazle Karim's Bada\" Khasra No. 649 measuring 4.62 acres. Inside this Bada, there are three or four Municipal Schools.\n\nThe office of the Electric Power House is also located in one corner of the land. Behind the School, there is a Pakka platform B known as \"Syed Baba's Mazar\". Near the Electric Power House, there is a raised earth platform on which there is a flag.\n\nThis flag is called \"Madar Sahib's .Thanda\".\n\nSurrounding this land, there is a brick wall which was made by the respondent several years past.\n\nAccording to the plaint, U rs function is held every year in front of Syed Baba's .Mazar for the last several years.\n\nC On or a.bout the 22nd October, 1956, the employees of the respondent started digging foundation at the places A. B, C and D shown on the map attacbed to the plaint. These digging operations were commenced under the Qirections of the respondent, because the respondent intended to construct another school building on the plot. The appellants then served a notice on the D respondent to desist from carrying on the digging operations on the ground that the property on which the said operations were being carried out, was a part of the wakf property.\n\nWhen the respondent did not comply with the requisition oontained in the said notice. the present suit was filed by the appellants on October 29, 1956. This suit has been filed under 0.1 r. 8 of the Code of E Civil Procedure.\n\nThe case of the appellants is that the plot of land in suit was old Kabrasthan known as \"Chuchu's Takia'', and is a permanent inalienable wakf property. On this plot are tombs of renowned saints like Syed Baba, and Madar Sahib's Jha .. da. On a part of the plot, every year Urs and other religious functions are performed. In fact, the land has been registered under the Madhya Pradesh Public Trusts Act (No. 30 of 1951) (hereinafter called the Act) as trust property; as suah, the respondent can claim no right or title tb the said land. That is the basis on which the appellants claimed injunction against the respondent.\n\nThe respondent disputed this claim. It was urged in the written statement filed by he respondent that the land was never and could never be wakf property. There was no tomb on the land. There are only two so-called tombs, but they have no significance. The Urs is of very recent origin and it is allowed to be held with te licence of the respondent. The plot originally. belonged to private persons and had been: acquired by the Government in land acquisition proceedings in 1910-11.\n\nThe respondent got the said land from the Government in 1922.\n\nIn 1932-33, the Deputy Commissioner fixed rent of the land which is being paid by the respondent eversince. On this land, the respondent has constructed some schools, and a part of the land which is lying vacant is allowed to be used by the people of the neighbJurhood for traffic. The respondent thus has full right to\n\nconstruct on its own plot of land. The representative character A of the appellants was disputed by the respondent and their right to file the present suit was challenged.\n\nOn these pleadings, several issues were framed by the learned trial Judge. They covered the title of appellants, the title of the respondent, and the right of the appellants to file the suit. The issue with which we are cor.cerned in the present appeal related to the registration of the plot in the register kept under the relevant provisions of the Act and its effect. The appellants' contention was that the said registration was conclusive against the respondent and in favour of the appellants' claim. This contention was rejected by the trial Judge, with the result that the appellants' suit was dismissed.\n\nWith the findings recorded by the learned trial Judge on the other issues we are not concerned in the present appeal.\n\nThe matter then went in appeal, and the appellate Court confirmed the conclusions recorded by the trial Court and dismissed the appeal. The appellants challenged the correctness of D the said appellate decree by preferring a seoond appeal in the High Court of Madhya Pradesh, but the second appeal also failed, and that has brought the appellants . to this Court by special leave. Thus, it would be noticed that the appellants have failed on the merits of their claim in all the courts below, and the technical point raised by them that the registration of the B plot under the relevant provisions of the Act concluded the matter, has also been rejeced. It is this last point which has been urged before us by Mr. Sinha on behalf of the appe!lants.\n\nBefore we deal with, this point, however, it would be relevant to mention how the property came to be entered in the F recister kept under the relevant provisions of the Act. The record shows that the Masiid Nayapara, Raipur, had been entered in the register as a public trust on June 25, 1954 in Case No. 23- XXXiii /7 of 1952-53. rertain properties were entered in the said register in respect of this trust. In 1956. Abdul Karim.\n\nMutawalr Masjid Nayapara. Raipur applied to the Sub- G Divisional Officer. Raipur alleging that the property now in suit also belonged to the public trust and should be included amongst its properties. On this application, public notice was issued\n\ncallin~ upon persons interested in the property to show cause why it should not be added to the properties of the wakf. No obiection was. however. received; and on October 23, 1956, the H Sub-Divisional Officer reported that the poperty be shown against the trust. The said report was sanctioned by the Registrar. Public Trusts on April 22, 1957. That is how the property came to be registered as belonging to the public trust. and it is on this entry that the whole argument of the appellants is based.\n\nIn considering the validity of the contention raised by Mr.\n\nSinha before us, it is necessary to examine broadlv the scheme\n\nAllDU/, KARIM KHAN v. MUNICIPAL COMMiiTEE RA!l'UR (Uajeiuirag •• dfor C.J.) 303\n\nA of the Act and the material provisions on which Mr. Sinha relies.\n\nI he Act was passed in 1951 to regulate and to make better pro vision for the administration of public religious and charitable trusts in the State of Madhya Pradesh. Section 2(4) of the Act defines a \"public trust\", and s. 2(8) defines a \"wakf\". 'Working trustee' is defined by s. 2(9). Section 3(1) provides that the Deputy B Commissioner shall be the Registrar of public trusts in respect of every public trust; and s. 3 (2) imposes on the Registrar the obligation to maintain a register of public trusts, and such other bOoks and registers and in such form as may be prescribed.\n\nSection 4(1) deals with the registration of public trusts and it requires that within three months from the date on which the C said section comes into force in any area or from the date on which a public trust is created, whichever is later, the working trustee of every public trust shall apply to the Registrar having jurisdiction for the registration of the public trust. Section 4(3) lays down the particulars which have to be stated by the application which is required to be made under s. 4(1).\n\nAll these D particulars are in relation to the nature of the trust, its properties, the mode of succession to the office of the trustees, and other allied matters. Section 4(4) empowers the Registrar to decide the merits of the application, while s. 4(5) provides for an appeal against his decision which is required to be filed within 30 days of the order. Mr. Sinha relies .on a specific provision contained E in s. 4(5) which says that subject to the decision in such appeal, the order of the Registrar under sub-section (4) shall be final, Section 4(6) requires the signing and verification of the application in the manner laid down in the code of Civil Procedure for signing and verifying plaints.\n\nF That takes us to s. 5 which deals with the enquiry to be held by the Registrar on the application made before him under s. 4(1).\n\nEight points are set down under s. 5(1) which the Registrar has to consider. Section 5(2) lays down that the Registrar shall give in the prescribed manner public notice of the inquiry proposed to be made under sub-section (!) and invite all persons interested in the G public trust under inquiry to prefer objections, if any, in respect of such trust. Under s. 6, the Registrar has to make his findings on the point specified by s. 5(1); and under s. 7, the Registrar causes entries to be made in the Register in accordance with his findings. Section 7(2) naturally lays down that the entriei: made under s. 7(1) shall be final and conclusive. Section 8(1) allows a H civil suit to be filed against the findings of the' Registrar within six months from the date of the publication of the notice under s. 7(1); such a suit can be filed by a working trustee or a person _having interest in a public trust or any property found to be trust property. Section 9 permits applications to be made for change in the entries recorded in the register. It will be recalled that the application which was made in 1'156 by Abdul Karim was under the provisions of s. 9(1). If an application is made for change in\n\nthe entries as, far instance, for adding to the list of properties belonging to the trust, a proceeding has to be taken for making the\n\nsaid change and this is prescribed by s. 9(2). Section 9(3) makes the provisions of s. 8 applicable to any finding under s. 9 as they would apply to a finding under s. 6. These provisions are contained in Chapter II of the Act. Chapter III deals with the management of trust property; Ch. IV with the problem of audit; Ch. V with control; and Ch. VI contains miscellanemis provisions, including s. 35 which confers the rule-making power on the State Government. That, broadly stated, is the nature of the scheme of the Act and the' material provisions which fall to be considered in the present appeal.\n\nMr. Sinha relies on the fact that under s. 4(5) of the Act, the decision of the Registrar is made final, subject to the appellate decision, if any; and he also refers to the right of instituting a suit reserved by s. 8. His argument is that if any person who claims interest in the property which is alleged to be trust property fails to satisfy the Registrar about his claim, he can file a suit under s. 8(1). Section 8(1) allows a suit to be filed, subject to the conditions prescribed by it, and the right to file sudh a suit is given to a working trustee, or a person having interest in a public trust or\n\nany property found to be trust property. The respondent is interested in the property in suit which is found to be trust property, and since it did not avail itself of the right to file a suit E within the specified time, the order passed by the Registrar must\n\nbe held to be final and conclusive against its claim. If finality does not attach to such an order even after six months have expired within the meaning of s. 8(1), then the , provision contained in s. 4(5) will serve no purpose whatever. That is the manner in which Mr. Sinha has presented his case before us.\n\nWe are not impressed by this argument. In testing the validity of this argument, we must bear in mind the important fact that the Act is concerned with the registration of public, religious and charitable trusts in the State of Madhya Pradesh, and the enquiry which its relevant provisions contemplate is an enquiry into the question as to whether the trust in question is public or private.\n\nThe enquiry permitted by the said provisions does not take within its sweep questions as to whether the property belongs to a private individual and is not the subject matter of any trust at all. It cannot be ignored that the Registrar who, no doubt, is given the powers of a civil aourt under s. 28 of the Act, holds a kind of summary enquiry and the points which can fall within his jurisdiction are indicated by clauses (i) to (x) of s. 4(3). Therefore; prima facie, it appears unreasonable to suggest that contested queStions of title, such as those which have arisen in the present case, can be said to fall within the enquiry which the Registrar is authorised to hold under s. 5 of the Act.\n\nBesides, it is significant that the only persons who are required to file their objections in response to a notice issued by the\n\nABDUL KAR DI KHAN v. i\\IUNICIPAI, cmIMl'YrEE llAIPlTR ( Gajendragadkar, C.J .) 305\n\nRegistrar ort receiving an application made under s. 4(1), are\n\npesons interested in the public lrust-not persons who dispute the existence of the trust or who challenge the allegation that any property belongs to the said trust. It is only persons interested in the public trust, such as beneficiaries or others who claim a right to manage the trust, who can file objections, and it is objeetions of this character proceeding from persons belonging to this limited class that fall to be considered by the Registrar. It cannot be said that the respondent falls within this olass; and so, it would be idle to contend that it was the duty of the respondent to have filed objections under s. 3(2).\n\nIt is true, s. 8(1) permits a suit to be filed by a person having interest in the public trust or any preperty found to be trust property. The interest to which this section refers must be read in the light '6f s. 5(2) to be the interest of a beneficiary or the interest of a person who claims the right to maintain the trust or any other interest of a similar character. It is not the interest which is adverse to the tr.us! set up by a party who does not claim any relation with the trust at all. That is why we think the finality on which Mr. Sinha's argument is based cannot avail him against the respondent inasmuch the respondent was not a party to the proceedings and could not have filed any objections in the said proceedings.\n\nThen again, the right to file a suit to which s. 8(1) refers is given to persons who are aggrieved by any finding of the Registrar.\n\nHaving regard to the fact that the proceedings before the Registrar are in the nature of proceedings l:.efore a civil court, it would be illogical to hoi.i that the respondent who was not a party to the F proceedings can be said to be aggrieved by the findings of the Registrar. The normal judicial concept -0f a person aggrieved by any order necessarily postulates that 'the said person must be a party . to the proceedings in which the order was passed and by which he feels aggrieved. It is unnecessary to emphasise that it would be plainly unreasonallle to •assume that thouth a person is G not a party to the proceedings and cannot participate in them by way of filing objections, he would still be bound to file a suit within the period prescribed by s. 8(1) if the property in which he claims an exclusive title is held by the Registrar to belong to a public trust.\n\nH Similarly, the right to prefer an appeal against the Registrar's order prescribed by s. 4(5) necessarily implies that the person must be a party to the proceedings before the Registrar; otherwise how would he know about the order? Like s. 8(1), s. 4(5) also seems to be confined in its operation to persons who are before the Registrar. or who could have appeard before the Registrar under s. 5(2). The whole scheme is clear, the Registrar enquires into the question as to whether a trust is private or public,\n\nand deals with the points specifically enumerated by s. 4(3).\n\nA Therefore; we have no hesitation in holding that the courts below were right in coming to the conclusion that the fact that the property now in suit was added to the list of properties belonging to the wakf, cannot affect the respondent's title to it.\n\nOn the merits, all the courts below have rejected the appellants' case B and have upheld the pleas raised by the respondent in defence.\n\nThe result is, the appeal fails and is dismissed with _costs.\n\nAppeal dismissed.", "total_entities": 84, "entities": [{"text": "ABDUL KARIM KHAN AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "ABDUL KARIM KHAN AND ORS", "offset_not_found": false}}, {"text": "MUNICIPAL COMMITTI:E, RAIPUR", "label": "RESPONDENT", "start_char": 30, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "MUNICIPAL COMMITTI:E, RAIPUR", "offset_not_found": false}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 75, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "P. B. GAJENDRAGADKAR", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL", "label": "JUDGE", "start_char": 103, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 123, "end_char": 140, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Public Trusts Act", "label": "STATUTE", "start_char": 158, "end_char": 175, "source": "regex", "metadata": {}}, {"text": "Madhya Pradesh Public Trusts Act, 1951", "label": "STATUTE", "start_char": 601, "end_char": 639, "source": "regex", "metadata": {}}, {"text": "Supreme Court", "label": "COURT", "start_char": 727, "end_char": 740, "source": "ner", "metadata": {"in_sentence": "In their appeal to the Supreme Court the appellants contended that, since the respondent did not avail itself of the right to file a suit within the specified time, the order passed by the Registrar must be held to be final and conclusive against the respondent."}}, {"text": "BJ The enquiry which the Act", "label": "STATUTE", "start_char": 1128, "end_char": 1156, "source": "regex", "metadata": {}}, {"text": "s. 4(5)", "label": "PROVISION", "start_char": 1838, "end_char": 1845, "source": "regex", "metadata": {"linked_statute_text": "BJ The enquiry which the Act", "statute": "BJ The enquiry which the Act"}}, {"text": "s. 8(1)", "label": "PROVISION", "start_char": 1873, "end_char": 1880, "source": "regex", "metadata": {"linked_statute_text": "BJ The enquiry which the Act", "statute": "BJ The enquiry which the Act"}}, {"text": "S. P. Sinha", "label": "OTHER_PERSON", "start_char": 2278, "end_char": 2289, "source": "ner", "metadata": {"in_sentence": "S. P. Sinha and M. I. Khowa; a, for the appellant."}}, {"text": "M. I. Khowa", "label": "LAWYER", "start_char": 2294, "end_char": 2305, "source": "ner", "metadata": {"in_sentence": "S. P. Sinha and M. I. Khowa; a, for the appellant."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 2330, "end_char": 2341, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and A. G. Ratnaparkhi, for the respopdent."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 2346, "end_char": 2363, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and A. G. Ratnaparkhi, for the respopdent."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 2429, "end_char": 2443, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Gajendragadkar, C .", "canonical_name": "P. B. GAJENDRAGADKAR"}}, {"text": "Raipur", "label": "GPE", "start_char": 2615, "end_char": 2621, "source": "ner", "metadata": {"in_sentence": "of Nayapara Ward in particular and of the Muslill1 community of Raipur in general, in whichthey claimed an injunction restraining the respondent, 1\\iunicipal Committee of Raipur, from committing acts of encroachmel\\t on their rights and the rights of\n\nABDUi."}}, {"text": "Syed Baba", "label": "OTHER_PERSON", "start_char": 3608, "end_char": 3617, "source": "ner", "metadata": {"in_sentence": "According to the plaint, U rs function is held every year in front of Syed Baba's .Mazar for the last several years."}}, {"text": "22nd October, 1956", "label": "DATE", "start_char": 3675, "end_char": 3693, "source": "ner", "metadata": {"in_sentence": "C On or a.bout the 22nd October, 1956, the employees of the respondent started digging foundation at the places A. B, C and D shown on the map attacbed to the plaint."}}, {"text": "October 29, 1956", "label": "DATE", "start_char": 4344, "end_char": 4360, "source": "ner", "metadata": {"in_sentence": "the present suit was filed by the appellants on October 29, 1956."}}, {"text": "Madar Sahib", "label": "OTHER_PERSON", "start_char": 4652, "end_char": 4663, "source": "ner", "metadata": {"in_sentence": "On this plot are tombs of renowned saints like Syed Baba, and Madar Sahib's Jha .. da."}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 7083, "end_char": 7111, "source": "ner", "metadata": {"in_sentence": "The appellants challenged the correctness of D the said appellate decree by preferring a seoond appeal in the High Court of Madhya Pradesh, but the second appeal also failed, and that has brought the appellants ."}}, {"text": "Sinha", "label": "LAWYER", "start_char": 7551, "end_char": 7556, "source": "ner", "metadata": {"in_sentence": "It is this last point which has been urged before us by Mr. Sinha on behalf of the appe!lants.", "canonical_name": "Sinha"}}, {"text": "Masiid Nayapara", "label": "ORG", "start_char": 7788, "end_char": 7803, "source": "ner", "metadata": {"in_sentence": "The record shows that the Masiid Nayapara, Raipur, had been entered in the register as a public trust on June 25, 1954 in Case No."}}, {"text": "June 25, 1954", "label": "DATE", "start_char": 7867, "end_char": 7880, "source": "ner", "metadata": {"in_sentence": "The record shows that the Masiid Nayapara, Raipur, had been entered in the register as a public trust on June 25, 1954 in Case No."}}, {"text": "1956. Abdul Karim", "label": "OTHER_PERSON", "start_char": 8001, "end_char": 8018, "source": "ner", "metadata": {"in_sentence": "In 1956."}}, {"text": "October 23, 1956", "label": "DATE", "start_char": 8434, "end_char": 8450, "source": "ner", "metadata": {"in_sentence": "received; and on October 23, 1956, the H Sub-Divisional Officer reported that the poperty be shown against the trust."}}, {"text": "April 22, 1957", "label": "DATE", "start_char": 8601, "end_char": 8615, "source": "ner", "metadata": {"in_sentence": "Public Trusts on April 22, 1957."}}, {"text": "Sinha", "label": "LAWYER", "start_char": 8836, "end_char": 8841, "source": "ner", "metadata": {"in_sentence": "In considering the validity of the contention raised by Mr.\n\nSinha before us, it is necessary to examine broadlv the scheme\n\nAllDU/, KARIM KHAN v. MUNICIPAL COMMiiTEE RA!l'UR (Uajeiuirag •• dfor C.J.) 303\n\nA of the Act and the material provisions on which Mr. Sinha relies.", "canonical_name": "Sinha"}}, {"text": "Section 2(4)", "label": "PROVISION", "start_char": 9217, "end_char": 9229, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(8)", "label": "PROVISION", "start_char": 9271, "end_char": 9278, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(9)", "label": "PROVISION", "start_char": 9329, "end_char": 9336, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3(1)", "label": "PROVISION", "start_char": 9338, "end_char": 9350, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 9469, "end_char": 9473, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4(1)", "label": "PROVISION", "start_char": 9634, "end_char": 9646, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4(3)", "label": "PROVISION", "start_char": 10010, "end_char": 10022, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 10127, "end_char": 10134, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4(4)", "label": "PROVISION", "start_char": 10301, "end_char": 10313, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(5)", "label": "PROVISION", "start_char": 10384, "end_char": 10391, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(5)", "label": "PROVISION", "start_char": 10552, "end_char": 10559, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4(6)", "label": "PROVISION", "start_char": 10681, "end_char": 10693, "source": "regex", "metadata": {"statute": null}}, {"text": "the code of Civil Procedure", "label": "STATUTE", "start_char": 10778, "end_char": 10805, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5", "label": "PROVISION", "start_char": 10861, "end_char": 10865, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 10964, "end_char": 10971, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(1)", "label": "PROVISION", "start_char": 11006, "end_char": 11013, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5(2)", "label": "PROVISION", "start_char": 11051, "end_char": 11063, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 11332, "end_char": 11336, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(1)", "label": "PROVISION", "start_char": 11403, "end_char": 11410, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 11422, "end_char": 11426, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7(2)", "label": "PROVISION", "start_char": 11517, "end_char": 11529, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7(1)", "label": "PROVISION", "start_char": 11579, "end_char": 11586, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8(1)", "label": "PROVISION", "start_char": 11618, "end_char": 11630, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7(1)", "label": "PROVISION", "start_char": 11775, "end_char": 11782, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9", "label": "PROVISION", "start_char": 11921, "end_char": 11930, "source": "regex", "metadata": {"statute": null}}, {"text": "Abdul Karim", "label": "OTHER_PERSON", "start_char": 12083, "end_char": 12094, "source": "ner", "metadata": {"in_sentence": "It will be recalled that the application which was made in 1'156 by Abdul Karim was under the provisions of s. 9(1)."}}, {"text": "s. 9(1)", "label": "PROVISION", "start_char": 12123, "end_char": 12130, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 12347, "end_char": 12354, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9(3)", "label": "PROVISION", "start_char": 12356, "end_char": 12368, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 12393, "end_char": 12397, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 12430, "end_char": 12434, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 12474, "end_char": 12478, "source": "regex", "metadata": {"statute": null}}, {"text": "These provisions are contained in Chapter II of the Act", "label": "STATUTE", "start_char": 12480, "end_char": 12535, "source": "regex", "metadata": {}}, {"text": "s. 35", "label": "PROVISION", "start_char": 12704, "end_char": 12709, "source": "regex", "metadata": {"linked_statute_text": "These provisions are contained in Chapter II of the Act", "statute": "These provisions are contained in Chapter II of the Act"}}, {"text": "s. 4(5)", "label": "PROVISION", "start_char": 12953, "end_char": 12960, "source": "regex", "metadata": {"linked_statute_text": "These provisions are contained in Chapter II of the Act", "statute": "These provisions are contained in Chapter II of the Act"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 13127, "end_char": 13131, "source": "regex", "metadata": {"linked_statute_text": "These provisions are contained in Chapter II of the Act", "statute": "These provisions are contained in Chapter II of the Act"}}, {"text": "s. 8(1)", "label": "PROVISION", "start_char": 13315, "end_char": 13322, "source": "regex", "metadata": {"linked_statute_text": "These provisions are contained in Chapter II of the Act", "statute": "These provisions are contained in Chapter II of the Act"}}, {"text": "Section 8(1)", "label": "PROVISION", "start_char": 13324, "end_char": 13336, "source": "regex", "metadata": {"linked_statute_text": "These provisions are contained in Chapter II of the Act", "statute": "These provisions are contained in Chapter II of the Act"}}, {"text": "s. 8(1)", "label": "PROVISION", "start_char": 13941, "end_char": 13948, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(5)", "label": "PROVISION", "start_char": 13984, "end_char": 13991, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh", "label": "GPE", "start_char": 14325, "end_char": 14339, "source": "ner", "metadata": {"in_sentence": "In testing the validity of this argument, we must bear in mind the important fact that the Act is concerned with the registration of public, religious and charitable trusts in the State of Madhya Pradesh, and the enquiry which its relevant provisions contemplate is an enquiry into the question as to whether the trust in question is public or private."}}, {"text": "s. 28", "label": "PROVISION", "start_char": 14784, "end_char": 14789, "source": 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"PROVISION", "start_char": 17725, "end_char": 17732, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(5)", "label": "PROVISION", "start_char": 17929, "end_char": 17936, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8(1)", "label": "PROVISION", "start_char": 18080, "end_char": 18087, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(5)", "label": "PROVISION", "start_char": 18089, "end_char": 18096, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 18234, "end_char": 18241, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(3)", "label": "PROVISION", "start_char": 18409, "end_char": 18416, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_307_317_EN", "year": 1965, "text": "FAZLUL RABBI PRADHAN\n\nSTATE OF WEST BENGAL March 8, 1965\n\nSQ7\n\n[P. B. GAJENDRAGADKAR, CJ., M. H!DAYA, TULLAH, J. c. SHAH AND B\n\nS. M. SIKRI, JJ.] West Bengal Estates Acquisition Act (Act 1 of 1954), s. 6(l)(i)- \"Cliaritab!e purpose\", meaning of.\n\nThe appellants were the respective mutawallis of two wakfs, in which either the ultimate benefit to the charity was postponed till after the exhaustion of the wakif's family and descenden ts, or the C income from the wakf estate was applied for the maintenance of the family side by side with expenditure for charitable or religious purposes. Notices were issued by the Collector under the West Bengal . Estates Acquisition Act, 1953, to the appellants, calling upon them to hand over possession of the wakf estates, on the ground that under s. 4 of the Act, there was an extinction and cesser of the estate and the rights of the appellants, and that their divested estates and rights vested in the State. The appellants claimed that they were protected D by s. 6(l)(i) of the Act, because, they were holding the properties exclusively for purposes which were charitable or religious or both.\n\nThe claim was rejected by the Collector, by the Commissioner on appeal, and by the High Court under Art. 226 of the Constitution.\n\nIii the appeal to the Supreme Court, HELD: The purposes described in the deeds were not covered by E the expression \"religious purpose'', and they were not exclusively for charitable purposes. Mingled with those purposes were some which were secular and some, which were family endowments, of a very substantial character. As the provisions about the family had not become inoperative by the exhaustion of the beneficiaries, the deeds, as they stood, could not be said to come within exemption claimed.\n\n[317 F-H]. • F The provisions of the Act apply notwithstanding anything to the contrary contained in any other law or in any instrument and notwithstanding any usage or custom to the contrary. The Act must, therefore, be construed on its actual words and the exemption cannot be enlarged beyond what is granted there. No doubt, the definition of \"Charitable purpose\" is not exhaustive like that of \"religious purpose\" but the expression \"public utility\" in the definition of \"charitable purpose\" gives a guidance to the meaning and purpose of the G exemption. It leaves scope for addition but it does not make for enlargement in directions which cannot be described as \"charitable\". Al provision for the family of the wakif or for himself cannot be regarde~ as \"relief of poor\", \"medical relief\" or \"the advancement of education\" under the definition. It cannot also be regarded as an expendi ture on an object of general public utility. It is true that after the H passing of the Mussalman Wakf Validating Act, 1913 and the Shariat Act, 1937, wakfs, in which the object was the aggrandisement of th!! families of wakifs without any pretence of charity in the ordinary sense, became valid and operative. But, the intention was not to give a new meaning to the word \"Charity\" which in common parlance is a word denoting a giving to someone in necessitous circumstances and in law, a giving for public good. A private gift to one's own self or kith and kin may be meritorious and pious, but is not a charity in the legal sense and Courts in India have never regarded such gifts as for religious or charitable purposes, even under the Mahomedan Law.\n\n(313 B, H; 314 A; 316 F-H; 317 D].\n\n1,1 B(N; SSOI-7\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 392 and A 393 of 1964.\n\nAppeals by special leave from the judgment and order dated March 26, 1962, of the Calcutta High Court in Civil Revision Nos. 3176 of 1958.\n\nG. S. Chatterjee and S. C. Mazumdar, for the appellant (in B C.A. No .. 392/64).\n\nN. C. Chatterjee and S. C. Mazumdar, for the appellant (in C.A. No. 393/64).\n\nC. K. Daphtary, Attorney-General, B. Sen, S. C. Bose and P. K. Bose, for the respondents (in C.A. 392/ 64).\n\nB: Sen, S. C. Bose and P. K. Bose, for the respondent (in C.A.\n\nNo. 393/64). .\n\nThe Judgment of the Court was delivered by\n\nHidayatullah, J.\n\nIn these two appeals the appellants seek to displace a common judgment and order of the High Court of Calcutta dated March 26, 1962 by which a Full Bench of the Court, specially constituted to hear and determine certain petitions under Art. 226 of the Constitution involving a common point of law, discharged the Rule issued earlier in them. These cases were concerned with Muslim wakfs in which either the ultimate benefit to charity is postponec'. till after the exhaustion of the wakif's family and descendants or the income from the wakf estate is applied for the maintenance of the family side by sid~ with expenditure for charitable or religious purposes. The common question which arose and still arises is whether these wakfs are affected by the passing of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954). That Act, in common with similar Acts of other States in India abolished from a date notlfied by the State Government all intermediaries such as proprietors, tenure-holders etc. between the raiyat and the State and vested the estates and the rights of the intermediaries in the State free from all incumberances. Section 3 of the Act provided that the Act was to have effect notwithstanding anything to the contrary contained in any other law or in any contract express or implied or in any instrument and notwithstanding any usage or custom to the contrary. There were, however, some exceptions and one such exception was that an intermediary was entitled to retain, with effect from the date of vesting, land held in\n\nkhas under a trust or endowment or other legal obligation exclusively for a purpose which was charitable or religious or both.\n\nNotices under s. 10(2) of the Act were issued by the Collectors in charge, Estate Acquisitions, to the respective Mutwallis informing them that after the notification issued on November 11, 1954 under s. 4 of the Act there was extinction and cesser of the estate\n\n''AZLUL RABBI PRADHAN v. STATE OF WEST BENGAL (Hich.yaiullah, J.) 309\n\nand rights of these intermediaries and !heir .divested estates and rights vested in. the State. The Mutawalhs were called upon by the said notice or order to give up possession of these estates and interests within 60 days of the service of the order, to the officer empowered by the Collector in this behalf. The orders also specified in schedules appended thereto, the details of such properties, interests and rights. Notices of this kind were issued to Fazlul Rabbi Pradhan, Mutawalli of Abdul Karim Wakf Estate, who is appellant in Civil Appeal No. 392 of 1964 and to Kawsar Alam, Mutawalli of Penda Mohammad Wakf Estate, appellant in Civil Appeal No. 393 of 1964. Similar notices were issued to other mutawa!lis in respect of other wakfs. The mutawallis appeared _in answer to the notices and objected to them. They claimed that they were protect• ed by s. 6(l)(i) of the Act (to which detailed reference will be made presently) as they were holding the properties exclusively for purposes which were charitable or religious or both. This claim was not accepted by the Collector, Estate Acquisitions, and appeals to the Commissioner also failed. The orders of the Collector and tlie Commissioner are dated February 24, 1956 and January 18, 1958 respectively.\n\nThe appellants after serving notices of demand for justice filed petitions in the High .Court under Art. 226 of the Constitution. The petitions came up for hearing before D. N. Sinha J. and were referred, on his recommendation, to a Full Bench consisting of Bacha wat, D. N. Sinha and P. N. Mookerjee JJ. These learned Judges by separate but concurring judgments held that the wakfs in question were not protected by s. 6(1)(i) as they were not exclusively for purposes which were charitable or religious or both and discharged che Rule. The cases were, however, certified under Art. l-33(1)(a) and (c) of the Constitution and these two appeals were filed.\n\nIt is not necess~1ry to state how the Act is constructed for the only question is whether the wakfs can be said to be exclusively for purposes which are religious or charitable or both and thus exempted from the operation of the Act by virtue of s. 6(1)(i) which reads:\n\n\"6. Rights cf intermediary to retain certain lands.\n\n(1) Notwithstanding anything contained in section 4 and 5, au intermediary shall, except in the cases mentioned in the proviso to sub-section (2) but subject to the other provisions of that sub-section, be entitled to ret1in with effect from the date of vesting- * • * * • * * • (i) where the intermediary is a corporation or an institution established exclusively for a religious or a charitable purpose or both, or\n\n310 SUPREME COURT REPOR'rS [J 96o] 3 S.C.R.\n\nls a person holding under a trust or an endowment or other legal obligation exclusivey for a purpose which is charitable or religious or both land held in khas by such corporation or institution, or person, for such purposes.\"\n\nSection 2(c) defines \"charitable purpose\" and s. 2(n) \"religious purpose\". These definitions are:\n\n\"2(c) \"charitable purpose\" includes the relief of poor, medical relief or the advancement of education or of any other object of general public utility;\"\n\n~2(n) \"religious purpose\" means a purpose connected with religious worship, teaching or service or any performance of religious rites;\" lf this concession is not available then the estate must vest in the State Government under ss. 4 and 5 of the Act. The former section invests power in the State Government to notify the date from which the estates and rights of every intermediary are to vest in the State free of all incumberances and the latter says that upon due publication of the notification the vesting takes place from the date notified. This has been done.\n\nThe wakfs in these two appeals are dissimilar in their terms but both provide for application or income for the support of the wakifs and their families. In the Abdul Karim Wakf (Civil Appeal 392 of 1964) the value of the property is shown as Rs. 1,00,000 and a ceiling of Rs. 4,500 is placed by the wakif on expenditure per year (cl. 12). The mutawalliship and the Na.ib mutawalliship run in the family 'from generation to generation first in the male line and after exhaustion of the male line in the female line. The charities mentioned specifically or generally require a stated expenditure of Rs. 904 per year. The wakif has, in addition, provided for an expenditure of Rs. 2,000 at a time, for the solace of his own soul and for his burial ceremonies etc. Rs. 25 have been ordered to be spent on Mi/ad every year.\n\nAs regards secular expenses the deed directs that 10 per cent of the income is to be kept as a reserve fund and from savings from the income other properties are to be purchased (cl. 19). The mutawalli and the Naib mutawalli are to receive 8 per cent of the income in proportion of 5: 3. Then follow numerous dispositions for the benefit of the family. They are:\n\n\"15. My wife Bibi Jainulnessa will get as long as she is alive, Rs. 1,200 annually at the rate of Rs. 100 per month and Bibi Taherankhatun, the widow of my eldest son, will get as long as she is alive, Rs. 480 annually (Rupees four hundred eighty only) at the rate of Rs. 40 per month. Such monthly allowances\n\nl'AZLUL RABBI PRADHAJ! v. STATE OF WEST BENG.O.L (Hidayatullah, J.) 311\n\nwill be stopped after their death. After their death their heirs will not get any portion of the aforesaid monthly allowances.\n\n\"16. Each of my three sons Shriman Tojammal Hossain Prodhan, Shriman Ahmad Yasin Prodhan and Shriman Azizul Huq Prodhan, will get Rs. 24 per .cent out of the net income of the wakf estates (after payment of revenue, cess etc. which are current at present or will be levied in future and afteT meeting the costs of administration). Shriman Abu Alam Prodhan, the only son born of the loins of my deceased second son will similarly get at the rate of Rs. 7 per cent out of the net income.\n\n\"18. A fund will be created with a deposit at the rate of Rs. 3 (Rupees three only) per cent, out of the annual net income for the purpose of educatio.n of the sons of my sons, sons of my daughters, sons of the daughters of my sons and my great-grandsons (in the male line). The Mutawalli and the Naib Mutawalli in consultation with each other will render help as far as possible to the boy amongst them who will be meritorious and has zeal for education according to his standard of education.\n\nIf there be any surplus the same will be kept in deposit in the wakf estate for meeting the expenses of education of the future heirs. If after graduation he goes to Englan'cl, France, Germany, America, Japan, Australia and other progressive cou11tries for higher education, then the Mutawalli and the Naib Mutawalli will, in consultation with each other, help him as far as possible. '20. The provision made for allowances for my aforesaid three sons and my grandson Shriman Abu Alam Pradhan in Schedule (Kha) will vest, after their death in the respecti; e sons and grandsons in the male line equally. If any of them has no son or grandson, in that case after his death if his wife lives and continues to follow her own religion, she will get one-eighth share of the aforesaid allowance as long as she is alive. The remaining seveneighth share and in the absence of his wife, sixteen annas share will vest in the wakf estate. Daughters born of them will not get the said allowance (in the female line).\" '\n\nIn lhc Pcnda Mohammad Wakf Estate (Civil Appeal 393 of 1964) the value of the property is shown as Rs. 40.000. The expenditure on charities and religious purposes is about Rs. 3,700 per year.\n\nThese are specified in Schedule Kha. The pay of the Naib Muta- A walli is fixed at Rs. 300 per year. The Mutawalliship and the Naib Mutawalliship 'run in the family and Mutawalli holding office can appoint his successor. The other important clauses of the wakfnamah dealing with the application of the funds are:\n\n\"(9) The Mutawalli shall from the income of the wakf B property pay at first revenue and other legitimate government and zamindary dues. \"(10) The Mutawalli shal! pay all expenses required for the maintenance of the wakf property and the Mutawalli shal! get ten per cent of such expenses.\n\nThe Mutawalli shall pay Rs. 25 (Rupees twenty C five only) per month to the Naib Mutawalli as his remuneration. \"(12) The Mutawalli will be entitled to take as his own remuneration the balance remaining after deducting expenses under items Nos. (9) and (I 0) as well.\n\nD expenses under Schedule (ka) and (kha) below from the income of the Wakf property and he will be entitled to spend the sum for his own work.\n\n• • * * In Schedule Ka dispositions are made for the family and the various clauses run as follows:\n\n\"(1) My grandson Jaman Ajimuddin Ahmed shall get a sum of Rs. 200 (Rupees two hundred) per month as his tankha (allowance) that is the cost of his maintenance and on his demise his heirs shall get the\n\nsaid tankha generation after generation and by way F of succession for ever.\n\n(2) My daughter Sreemati Hiramannessa Bibi shall et\n\n, Rs. 25 (Rupees twenty five) per month for her maintenance and on her demise her heirs shall continue to get the said tankha generation after generation for ever by way of succession.\n\n(3) My second wife Srlmati Bibijannessa Bibi shall get\n\nRs. 30 (Runees thirty) ner month during her life time as tankha that is as costs of her maintenance .and on her demise none of her heirs shall grt the same and it will be included in the Wakf Estate\".\n\nIt was not claimed before us in these cases that the nrovisions about the family-have become inonerative by the exhaustion of the beneficiaries and we proceed on the assumption th~.t the families ofl\n\nthe wakifs do stiU en joy the benefits. In these circumstances, the question is whether these truts can be describd as those exclusively for religious or charitab)e purposes or both. Tf they can he\n\nFAZLUL RABBI PRADHAN v. STATE OF WEST BENGAL (Hidaymullah, J.) 313\n\nso described s. 6(i)(i) would exempt them from the operation of the Act; otherwise, in view of the provisions of ss. 3, 4 and 5 the estates of the inte1mediaries vested in the State on the appointed date.\n\nAs already stated the provisions of the Act apply notwithstanding anything to the contrary contained in any other law or in any instrument and notwithstanding any usage or custom to the contrary. The Act must, therefore, be construed on its actual words and the exemption cannot be enlarged beyond what is granted there. The exemption is given to Corporations and institutions established exclusively for a religious or a charitable purpose or both but to this kind of eleemosynary foundations no mutawalli in either deed can lay claim. The matter can thus only come in, if at all, within the words of the exempting clause which read:\n\n\" ...... a person holding under a trust or endowment or other legal obligation exclusively for a purpose which is charitable er religious or both.\" The word \"exclusivelf' limits the exemption to trusts, endowments. or other legal obligations which come solely within charitable or religious purposes. These purposes are defined by s. 2(c) and (n) and the definitions have already been reproduced. It is quite clear (and indeed the contrary was not suggested at the Bar) that the expression \"religious purpose\" cannot cover these two cases. The definition is an exhat1stive one and to satisfy the requirement the purpose must be connected with religious worship, teaching or service or performance of rligious rites. No religious worship, teaching or service or performance of religious rites is involved when the wakif provides for his family or himself even though a person giving maintenance to his family or himself is regarded in Mahomedan Law as giving a sadaqah. But even if regarded as a pious act a sadaqah of thig kind is not a religious worship or rite. In our opinion, neither of the deed makes a disposition coming within the description \"exclusively for religion> purposes\". This leaves over for consideration whether they come within the expression \"charitable purposes\".\n\nThe definition of \"charitable purposes\" in the Act follows. though not quite, the well-known definition of charity given by Lord Macnaghten in Com111issioncrs for Special Purposes of Income Tax\n\nv. Pe111se/('). where four principal divisions were said to be comprised-trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community not falling under any of the preceding heads. The definition in this Act makes one significant change when it speaks of \"public utility\"\n\nand this gives a guidance to the whole meaning and purpose of the exemption. No doubt the definition is not an exhaustive one like the definition of 'religious purposes'. It only speaks of what may be included in it besides the natural meaning of the words. It\n\n(') [1891) A.C. 531 at nS3.\n\nSUPREME COURT REPORTS (1965] 3 S.C.lf,\n\nis quite clear that the provision for the family of the wakif or for himself cannot be regarded as 'relief of poor', 'medical relief' or the\n\n'advancement of education'. It cannot also be regarded as an ex\n\npenditure on an object of general public utility. The definition as it stands cannot obviously comprehend such dispositions.\n\nBut it is contended by Mr. N. C. Chatterjee that in giving a meaning to the expression \"charitable purposes\" we must be guided by the notions of Mahomedan Law and he relies upon the observa. tion of Sir George Rankin in Tribune Press Trustees, Lahore v. l.T.\n\nCommissioner('). Mr. Chatterjee claims that provision for the wakif and the wakif's family is a charitable purpose according to Mahomedan Law. In the Tribune case the Judicial Committee was required to interpret s. 4(3)(i) of the Indian Income-tax Act 1922 (XI ofi\n\n1922). That section provided:\n\n\"(3) This Act shall not apply to the following classes of income:-\n\n(i) Any income derived from property held under trust or other legal obligation wholly for religious or charitable purposes, and in case of property so held in part only for such purpose, the income applied, or finally set apart for application, thereto ..\n\nIn this sub-section 'charitable purpose' includes relief of the poor, education, medical relief, and the advancement of any other object of general public utility.\"\n\nF In dealing with the will of Sardar Dayal Singh who had constituted a trust to maintain the Press and the Newspaper, \"keeping up the liberal policy of the said newspaper and devoting the surplus income ...... in improving the said newspaper ...... \", the question had arisen whether the running of a newspaper was an object of general public utility or whether it was to be treated as a business G concern. The High Court at LJhore was divided in its opinion.\n\nLearned Judges in favour of granting the prayer for exemption were of the opinion that the true test was not what the Court considered to be an object of public utility, but what the testator thought t<? be. The Judicial Committee pointed out that in reaching this view those learned Judges were following what Chitty J. said in H In re Foveaux, etc.(') and further that that case was dissented from in !a!er cases. In these latter. cases it was held that though the private op1mon of the Judge was immaterial, nevertheless for a charitable gift to be valid, it must be shown (!) that the gift was for public benefit, and (2) that the trust was one of which the Court could, ifi\n\n(') L. R. ~~ J. A. 2ll at P. 2.5!.\n\n{1) [J\"J5] :1 d1 • . j!)J.,\n\n\" FAzLUL RABBI PRADHAN v. STATE OF WEST BENGAL (Hi<foyarulfoh, J.) 315\n\nA necessary undertake and control othei:wise-trusts to promote all ..._ kinds of \"fantastic\" 9bjects in perpetuity would be establ\\sheil. The Judicial Committee acceded to this view but pointed out further: --\n\n\"It is to be observed, moreover, that under the Incometax Act the test of general public utility.is applicable not only to trusts in the English sense, but is to be applied to property held under trust \"or other legal obligation\"-a phrase wh'ich would include Moslem wakfs and Hindu endowments. The true approach to such questions, in \"Cases which arise in countries to which English ideas-let alone English t(\\Chnicalitiesmay be inapplicable, was consider- ' ed by the Board in Yeap Chealz Neo v. Ong Cheng Neo('), and it was well said by Sir Raymond W.est in Fµtima Bibi\n\nv. Advocate General of Bombay('); \"But useful and beneficial iti what sense? The Courts have to pronounce whether any particular object of a bounty falls within the definition; but they must, in general, apply the standard of customary lpw and common opinion amongst the comunity to which the parties interested belong.\"\n\n.Relying on this passage Mr. Chatterjee contends that if th!l Mahomedari La:w regards gifts for the benefit of the wakif and his family as \"charity\" it is not for the Courts to say that 'they are not and he claims exemption foNhe wakfs. He relies upon the precept of the Prophet-'!A pious offering to one's family, to.provide against their getting into want, is more pious than giving alms to.beggars.\n\nThe i11ost excellent of sadkah is lhafwhich a man liestows upon his family'.\n\nNow it is a matter of legal history that wakfs in which the benefits to charity or religioP were either illuwry or postponed indefinitely, while the property so ddi(ated was being enjoyed from generation to generation by !lie family of the waif, were regard.ed as opposed to the rule against perpctuitks as contained in the Indian Succession arid the Transfrr of Prcperty Acts. This was so declared in a succession of cases by the Judici;!l Co!1nlittee and 'the opinion of Amir Ali expressed Jn his Tagore Lectures as well as in Meer\n\nMahoml!d lsr'aeli Khan v. Shfl.1fi Chum Chore(') and Bikani Mia v.\n\nShi1k11/ Poddar\"(') 1ya!• not accepted. These cases are referred to in\n\nthe ihree ol'inions in the High Court ancl most importa11t of them is Aqul Fata Mahfm1e1! Ishak and Others v. Bussomoy Dlmr Chowdry, and others<'1. In that case Lord Hob house, while emphasising that\n\n(I) [18i;'i1 J •. n. r. I' C. 381.\n\n( 2).{13811 T.J..H.\"\"'{i'lo1n, -:12, !i(I\n\nril !! ('al. -ti:!.\n\n1•1 :!O f'11.I. 116. (') !?2 I.:\\. 'j(i.\n\nMahomed1n Law ought to govern a purely Mahomedan disposition, declined to hold that disposition in which the benefit was really intended to go to the wakif and his family could be described as charity even under that law. Speaking of the precept above quoted by us Lord Hobhouse observed:\n\n\" ...... it would be doing wrong .to the great lawgiver to suppose that he is thereby commenjing gifts for which the donor exercises no self-denial; in which he takes back with one hand what he appears to put away with the other; which are to form the centre of attraction for accumulations of income and further accessions of family property; which carefully protected so-called managers from being called to a-cccunt; which seek to give to the donors and their family the enjoyment of property free from all liability to creditors; and which do not seek the benefit of others beyond the use of empty words.\"\n\nSimilar observations were made by Lord Hobhouse in L.R. 17 I.A. 25 and by Lord Natson in L.R. 19 I.A. 170 in earlier cases.\n\nThese cases led to agitation in India and the Mussalman Wakf Validating Act, 1913 (VI of 1913) was passed. It declared the rights of Mussalmans to make settlements of property by way of wakf in\n\nfavour of their families, children and descendants. For the purposes of the Validating Act the term 'wakf' was defined to mem \"the rermanent dedication by a person professing the Mussalman faith of any property for ny purpose recognized by the Mussalman law as religious, pious or charitable\". This gave a wider meaning to the word wakf but only for the purpose of taking them out of the invalidity which would have otherwise existed and which was already authoritatively stated to have so existed.\n\nAfter the pJssage of these two Acts wakfs in which the object was the aggrandisement of families of wakifs without a pretence of charity in the ordinary sense bcame valid and operative. But the intention of the Validating Act was not to give a new meaning to the word \"charity\" which in common parlance is a word denotingj a giving to some one in necessitous circumstances and in law a giving for public good. A private gift to one's own self or kith and kin may be meritorious an'.! pious but is not a charity in the legal sense and the Courts in Indi1 have never regarded such gifts as for religious or charitable purposes even under the Mahomedan Law. It was ruled in Syed Mohiuddin Ahmed and Anr. v. Sofia Khatun(') that neither the Wakf Validating Act 1913 nor the Shariat Act 1937 had the effect of aborgating the Privy Council decisions on tho meaning of \"charitable purpose\" as such.\n\nWe do not say that the English authorities should be taken as, the guide as was suggested in soms of these c8ses at one time. For\n\n(1) 44 c.w.x. '974.\n\nFAZLUL RABBI PRADHAN 1.'. c:TArn OF WERT BEJrn.u. (Hida.ya.tullrth, J.) 317\n\none thing, the law was denlope1 in the Chancery Qiurts without the assistance of any statutory definition. The earliest statµte on the subject is one of 1601 in the forty-third year of the reign of Queen Elizabeth I and in its preamble it gave a list of charitable objects which came within the purview of that Act, and for another, Courts in England extended these insl2nces to others by analogy and the subject is often rendered vague an'.! difficult to comprehend. A clear guide is available to us in India in the interpretation of the almost similar provisions of the Indi<1n Incomet\\X Act 1922 already quoted. The observations of Sir George Rank; n in the Tribune CQ1e, on which much reliance is place:i by the appellants were intend2d to convey the same caution about Englis.h c::ses which we have sounded here. The Judicial Committee did nGt intend to lay down that the words of a statute so precise in its definition should be rendered nugatory by leaving room for inclusion in \"charitable purposes\", objects which by no mecins could be charity in the generally accepted legal sense. No doubt the definition whicb is common is not exhaustive and leaves scop~ for addition but it does not make for enlargement in directions which cannot be described as \"charitable\".\n\nThis view of the definit:on was taken in respect of the amlogous provision Gf the Jn:lian Income-tax Act. In D. V. Arur v. Commissioner of !ncometax(') and in re Merccntile Bank of India (Agency) Ltd.(') it was laid down that for satisfying/ the test of charitable purpose there must always be some clemerJt of p'..lblic benefit. Indeed it must be so, if family endowments which are in effect private trusts are not to pass as charities which, as was observed in Mujibunnissa and Ors. -v. Ahdul Rahim and A/Jd11! Aziz.('), it is superfluous in the present day to say, is net the law.\n\nWhen the two deeds are examined and their provisions considered in the light of these principles, it is easily seen that they are not exclusively for charitable purposes. They do provide in part for objects which are religious or charitable or both but miQgled with those purposes are some which are secular and some which are family endowments very substantial in character. If the latter bene\n\nfits had ceased or the families had become extinct leaving only the\n\ncharitie~ or if the provisions were for poor and needy though belonging to the wakif's family, other considerations might conceivably have arisen, as was stated by Bachawat J. in his opinion. The deeds as they stand cannot, however, be said to come within the exemption claimed.\n\nThe appesls must, therefore, fail. They are dismissed but in the circumstanct>s we direct parties to bear their own costs.\n\n\n(1) J,;\\.H.. (l!llfi} ['01\". 4t.\n\n(~) [1!112~ 1·111'.1; .. ~Jl'.!\n\nC'l 2l I..\\ 1;. ''.1 P 2r;.\n\nAppeals dismissed.\n\n--~ ----~----", "total_entities": 101, "entities": [{"text": "FAZLUL RABBI PRADHAN", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "FAZLUL RABBI PRADHAN", "offset_not_found": false}}, {"text": "STATE OF WEST BENGAL", "label": "RESPONDENT", "start_char": 22, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "STATE OF WEST BENGAL", "offset_not_found": false}}, {"text": "March 8, 1965", "label": "DATE", "start_char": 43, "end_char": 56, "source": "ner", "metadata": {"in_sentence": "FAZLUL RABBI PRADHAN\n\nSTATE OF WEST BENGAL March 8, 1965\n\nSQ7\n\n[P. B. GAJENDRAGADKAR, CJ.,"}}, {"text": "P. B. GAJENDRAGADKAR, CJ.", "label": "JUDGE", "start_char": 64, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "c. SHAH", "label": "JUDGE", "start_char": 113, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. M. SIKRI, JJ.", "label": "JUDGE", "start_char": 128, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "West Bengal Estates Acquisition Act", "label": "STATUTE", "start_char": 146, "end_char": 181, "source": "regex", "metadata": {}}, {"text": "s. 6(l)(i)", "label": "PROVISION", "start_char": 199, "end_char": 209, "source": "regex", "metadata": {"linked_statute_text": "West Bengal Estates Acquisition Act", "statute": "West Bengal Estates Acquisition Act"}}, {"text": "Estates Acquisition Act, 1953", "label": "STATUTE", "start_char": 651, "end_char": 680, "source": "regex", "metadata": {}}, {"text": "s. 4", "label": "PROVISION", "start_char": 789, "end_char": 793, "source": "regex", "metadata": {"linked_statute_text": "Estates Acquisition Act, 1953", "statute": "Estates Acquisition Act, 1953"}}, {"text": "s. 6(l)(i)", "label": "PROVISION", "start_char": 1006, "end_char": 1016, "source": "regex", "metadata": {"linked_statute_text": "Estates Acquisition Act, 1953", "statute": "Estates Acquisition Act, 1953"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1241, "end_char": 1249, "source": "regex", "metadata": {"linked_statute_text": "Estates Acquisition Act, 1953", "statute": "Estates Acquisition Act, 1953"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 1294, "end_char": 1307, "source": "ner", "metadata": {"in_sentence": "Iii the appeal to the Supreme Court, HELD: The purposes described in the deeds were not covered by E the expression \"religious purpose'', and they were not exclusively for charitable purposes."}}, {"text": "is true that after the H passing of the Mussalman Wakf Validating Act, 1913", "label": "STATUTE", "start_char": 2717, "end_char": 2792, "source": "regex", "metadata": {}}, {"text": "Shariat Act, 1937", "label": "STATUTE", "start_char": 2801, "end_char": 2818, "source": "regex", "metadata": {}}, {"text": "India", "label": "GPE", "start_char": 3315, "end_char": 3320, "source": "ner", "metadata": {"in_sentence": "A private gift to one's own self or kith and kin may be meritorious and pious, but is not a charity in the legal sense and Courts in India have never regarded such gifts as for religious or charitable purposes, even under the Mahomedan Law."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 3632, "end_char": 3651, "source": "ner", "metadata": {"in_sentence": "Appeals by special leave from the judgment and order dated March 26, 1962, of the Calcutta High Court in Civil Revision Nos."}}, {"text": "G. S. Chatterjee", "label": "OTHER_PERSON", "start_char": 3690, "end_char": 3706, "source": "ner", "metadata": {"in_sentence": "G. S. Chatterjee and S. C. Mazumdar, for the appellant (in B C.A. No .. 392/64)."}}, {"text": "S. C. Mazumdar", "label": "LAWYER", "start_char": 3711, "end_char": 3725, "source": "ner", "metadata": {"in_sentence": "G. S. Chatterjee and S. C. Mazumdar, for the appellant (in B C.A. No .. 392/64)."}}, {"text": "N. C. Chatterjee", "label": "LAWYER", "start_char": 3772, "end_char": 3788, "source": "ner", "metadata": {"in_sentence": "N. C. Chatterjee and S. C. Mazumdar, for the appellant (in C.A. No.", "canonical_name": "N. C. Chatterjee"}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 3850, "end_char": 3864, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, B. Sen, S. C. Bose and P. K. Bose, for the respondents (in C.A. 392/ 64)."}}, {"text": "S. C. Bose", "label": "LAWYER", "start_char": 3892, "end_char": 3902, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, B. Sen, S. C. Bose and P. K. Bose, for the respondents (in C.A. 392/ 64)."}}, {"text": "P. K. Bose", "label": "LAWYER", "start_char": 3907, "end_char": 3917, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, B. Sen, S. C. Bose and P. K. Bose, for the respondents (in C.A. 392/ 64)."}}, {"text": "Sen", "label": "LAWYER", "start_char": 3962, "end_char": 3965, "source": "ner", "metadata": {"in_sentence": "B: Sen, S. C. Bose and P. K. Bose, for the respondent (in C.A.\n\nNo."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 4083, "end_char": 4095, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayatullah, J.\n\nIn these two appeals the appellants seek to displace a common judgment and order of the High Court of Calcutta dated March 26, 1962 by which a Full Bench of the Court, specially constituted to hear and determine certain petitions under Art.", "canonical_name": "M. HIDAYATULLAH"}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 4189, "end_char": 4211, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayatullah, J.\n\nIn these two appeals the appellants seek to displace a common judgment and order of the High Court of Calcutta dated March 26, 1962 by which a Full Bench of the Court, specially constituted to hear and determine certain petitions under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 4337, "end_char": 4345, "source": "regex", "metadata": {"statute": null}}, {"text": "West Bengal Act", "label": "STATUTE", "start_char": 4913, "end_char": 4928, "source": "regex", "metadata": {}}, {"text": "Section 3", "label": "PROVISION", "start_char": 5254, "end_char": 5263, "source": "regex", "metadata": {"linked_statute_text": "West Bengal Act", "statute": "West Bengal Act"}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 5803, "end_char": 5811, "source": "regex", "metadata": {"linked_statute_text": "West Bengal Act", "statute": "West Bengal Act"}}, {"text": "November 11, 1954", "label": "DATE", "start_char": 5966, "end_char": 5983, "source": "ner", "metadata": {"in_sentence": "Notices under s. 10(2) of the Act were issued by the Collectors in charge, Estate Acquisitions, to the respective Mutwallis informing them that after the notification issued on November 11, 1954 under s. 4 of the Act there was extinction and cesser of the estate\n\n''AZLUL RABBI PRADHAN v. STATE OF WEST BENGAL (Hich.yaiullah, J.) 309\n\nand rights of these intermediaries and !"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 5990, "end_char": 5994, "source": "regex", "metadata": {"statute": null}}, {"text": "Fazlul Rabbi Pradhan", "label": "PETITIONER", "start_char": 6581, "end_char": 6601, "source": "ner", "metadata": {"in_sentence": "Notices of this kind were issued to Fazlul Rabbi Pradhan, Mutawalli of Abdul Karim Wakf Estate, who is appellant in Civil Appeal No.", "canonical_name": "FAZLUL RABBI PRADHAN"}}, {"text": "Kawsar Alam", "label": "OTHER_PERSON", "start_char": 6697, "end_char": 6708, "source": "ner", "metadata": {"in_sentence": "392 of 1964 and to Kawsar Alam, Mutawalli of Penda Mohammad Wakf Estate, appellant in Civil Appeal No."}}, {"text": "s. 6(l)(i)", "label": "PROVISION", "start_char": 6984, "end_char": 6994, "source": "regex", "metadata": {"statute": null}}, {"text": "February 24, 1956", "label": "DATE", "start_char": 7336, "end_char": 7353, "source": "ner", "metadata": {"in_sentence": "The orders of the Collector and tlie Commissioner are dated February 24, 1956 and January 18, 1958 respectively."}}, {"text": "January 18, 1958", "label": "DATE", "start_char": 7358, "end_char": 7374, "source": "ner", "metadata": {"in_sentence": "The orders of the Collector and tlie Commissioner are dated February 24, 1956 and January 18, 1958 respectively."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 7490, "end_char": 7498, "source": "regex", "metadata": {"statute": null}}, {"text": "D. N. Sinha", "label": "JUDGE", "start_char": 7561, "end_char": 7572, "source": "ner", "metadata": {"in_sentence": "The petitions came up for hearing before D. N. Sinha J. and were referred, on his recommendation, to a Full Bench consisting of Bacha wat, D. N. Sinha and P. N. Mookerjee JJ."}}, {"text": "Bacha wat", "label": "JUDGE", "start_char": 7648, "end_char": 7657, "source": "ner", "metadata": {"in_sentence": "The petitions came up for hearing before D. N. Sinha J. and were referred, on his recommendation, to a Full Bench consisting of Bacha wat, D. N. Sinha and P. N. Mookerjee JJ.", "canonical_name": "Bacha wat"}}, {"text": "P. N. Mookerjee", "label": "JUDGE", "start_char": 7675, "end_char": 7690, "source": "ner", "metadata": {"in_sentence": "The petitions came up for hearing before D. N. Sinha J. and were referred, on his recommendation, to a Full Bench consisting of Bacha wat, D. N. Sinha and P. N. Mookerjee JJ."}}, {"text": "s. 6(1)(i)", "label": "PROVISION", "start_char": 7807, "end_char": 7817, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6(1)(i)", "label": "PROVISION", "start_char": 8294, "end_char": 8304, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4 and 5", "label": "PROVISION", "start_char": 8414, "end_char": 8429, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPREME COURT REPOR'rS [J 96o] 3 S.C.R.", "label": "COURT", "start_char": 8794, "end_char": 8833, "source": "ner", "metadata": {"in_sentence": "(1) Notwithstanding anything contained in section 4 and 5, au intermediary shall, except in the cases mentioned in the proviso to sub-section (2) but subject to the other provisions of that sub-section, be entitled to ret1in with effect from the date of vesting-  •   •  * • (i) where the intermediary is a corporation or an institution established exclusively for a religious or a charitable purpose or both, or\n\n310 SUPREME COURT REPOR'rS [J 96o] 3 S.C.R.\n\nls a person holding under a trust or an endowment or other legal obligation exclusivey for a purpose which is charitable or religious or both land held in khas by such corporation or institution, or person, for such purposes.\""}}, {"text": "Section 2(c)", "label": "PROVISION", "start_char": 9063, "end_char": 9075, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(n)", "label": "PROVISION", "start_char": 9109, "end_char": 9116, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 4 and 5", "label": "PROVISION", "start_char": 9545, "end_char": 9556, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 10218, "end_char": 10224, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 19", "label": "PROVISION", "start_char": 10887, "end_char": 10893, "source": "regex", "metadata": {"statute": null}}, {"text": "Bibi Jainulnessa", "label": "OTHER_PERSON", "start_char": 11085, "end_char": 11101, "source": "ner", "metadata": {"in_sentence": "My wife Bibi Jainulnessa will get as long as she is alive, Rs."}}, {"text": "Bibi Taherankhatun", "label": "OTHER_PERSON", "start_char": 11192, "end_char": 11210, "source": "ner", "metadata": {"in_sentence": "100 per month and Bibi Taherankhatun, the widow of my eldest son, will get as long as she is alive, Rs."}}, {"text": "Shriman Tojammal Hossain Prodhan", "label": "OTHER_PERSON", "start_char": 11611, "end_char": 11643, "source": "ner", "metadata": {"in_sentence": "Each of my three sons Shriman Tojammal Hossain Prodhan, Shriman Ahmad Yasin Prodhan and Shriman Azizul Huq Prodhan, will get Rs.", "canonical_name": "Shriman Tojammal Hossain Prodhan"}}, {"text": "Shriman Ahmad Yasin Prodhan", "label": "OTHER_PERSON", "start_char": 11645, "end_char": 11672, "source": "ner", "metadata": {"in_sentence": "Each of my three sons Shriman Tojammal Hossain Prodhan, Shriman Ahmad Yasin Prodhan and Shriman Azizul Huq Prodhan, will get Rs.", "canonical_name": "Shriman Tojammal Hossain Prodhan"}}, {"text": "Shriman Azizul Huq Prodhan", "label": "OTHER_PERSON", "start_char": 11677, "end_char": 11703, "source": "ner", "metadata": {"in_sentence": "Each of my three sons Shriman Tojammal Hossain Prodhan, Shriman Ahmad Yasin Prodhan and Shriman Azizul Huq Prodhan, will get Rs.", "canonical_name": "Shriman Azizul Huq Prodhan"}}, {"text": "Shriman Abu Alam Prodhan", "label": "OTHER_PERSON", "start_char": 11915, "end_char": 11939, "source": "ner", "metadata": {"in_sentence": "Shriman Abu Alam Prodhan, the only son born of the loins of my deceased second son will similarly get at the rate of Rs.", "canonical_name": "Shriman Azizul Huq Prodhan"}}, {"text": "Naib Mutawalli", "label": "OTHER_PERSON", "start_char": 12368, "end_char": 12382, "source": "ner", "metadata": {"in_sentence": "The Mutawalli and the Naib Mutawalli in consultation with each other will render help as far as possible to the boy amongst them who will be meritorious and has zeal for education according to his standard of education.", "canonical_name": "Naib Muta- A walli"}}, {"text": "France", "label": "GPE", "start_char": 12744, "end_char": 12750, "source": "ner", "metadata": {"in_sentence": "If after graduation he goes to Englan'cl, France, Germany, America, Japan, Australia and other progressive cou11tries for higher education, then the Mutawalli and the Naib Mutawalli will, in consultation with each other, help him as far as possible. '"}}, {"text": "Germany", "label": "GPE", "start_char": 12752, "end_char": 12759, "source": "ner", "metadata": {"in_sentence": "If after graduation he goes to Englan'cl, France, Germany, America, Japan, Australia and other progressive cou11tries for higher education, then the Mutawalli and the Naib Mutawalli will, in consultation with each other, help him as far as possible. '"}}, {"text": "America", "label": "GPE", "start_char": 12761, "end_char": 12768, "source": "ner", "metadata": {"in_sentence": "If after graduation he goes to Englan'cl, France, Germany, America, Japan, Australia and other progressive cou11tries for higher education, then the Mutawalli and the Naib Mutawalli will, in consultation with each other, help him as far as possible. '"}}, {"text": "Japan", "label": "GPE", "start_char": 12770, "end_char": 12775, "source": "ner", "metadata": {"in_sentence": "If after graduation he goes to Englan'cl, France, Germany, America, Japan, Australia and other progressive cou11tries for higher education, then the Mutawalli and the Naib Mutawalli will, in consultation with each other, help him as far as possible. '"}}, {"text": "Australia", "label": "GPE", "start_char": 12777, "end_char": 12786, "source": "ner", "metadata": {"in_sentence": "If after graduation he goes to Englan'cl, France, Germany, America, Japan, Australia and other progressive cou11tries for higher education, then the Mutawalli and the Naib Mutawalli will, in consultation with each other, help him as far as possible. '"}}, {"text": "Mutawalli", "label": "RESPONDENT", "start_char": 12851, "end_char": 12860, "source": "ner", "metadata": {"in_sentence": "If after graduation he goes to Englan'cl, France, Germany, America, Japan, Australia and other progressive cou11tries for higher education, then the Mutawalli and the Naib Mutawalli will, in consultation with each other, help him as far as possible. '", "canonical_name": "Mutawalliship"}}, {"text": "Shriman Abu Alam Pradhan", "label": "OTHER_PERSON", "start_char": 13035, "end_char": 13059, "source": "ner", "metadata": {"in_sentence": "The provision made for allowances for my aforesaid three sons and my grandson Shriman Abu Alam Pradhan in Schedule (Kha) will vest, after their death in the respecti; e sons and grandsons in the male line equally.", "canonical_name": "Shriman Azizul Huq Prodhan"}}, {"text": "Naib Muta- A walli", "label": "OTHER_PERSON", "start_char": 13821, "end_char": 13839, "source": "ner", "metadata": {"in_sentence": "The pay of the Naib Muta- A walli is fixed at Rs.", "canonical_name": "Naib Muta- A walli"}}, {"text": "Mutawalliship", "label": "RESPONDENT", "start_char": 13874, "end_char": 13887, "source": "ner", "metadata": {"in_sentence": "The Mutawalliship and the Naib Mutawalliship 'run in the family and Mutawalli holding office can appoint his successor.", "canonical_name": "Mutawalliship"}}, {"text": "Naib Mutawalliship", "label": "OTHER_PERSON", "start_char": 13896, "end_char": 13914, "source": "ner", "metadata": {"in_sentence": "The Mutawalliship and the Naib Mutawalliship 'run in the family and Mutawalli holding office can appoint his successor.", "canonical_name": "Naib Muta- A walli"}}, {"text": "Mutawalli", "label": "RESPONDENT", "start_char": 14230, "end_char": 14239, "source": "ner", "metadata": {"in_sentence": "10) The Mutawalli shal!", "canonical_name": "Mutawalliship"}}, {"text": "Jaman Ajimuddin Ahmed", "label": "OTHER_PERSON", "start_char": 14904, "end_char": 14925, "source": "ner", "metadata": {"in_sentence": "• •   In Schedule Ka dispositions are made for the family and the various clauses run as follows:\n\n\"(1) My grandson Jaman Ajimuddin Ahmed shall get a sum of Rs."}}, {"text": "Sreemati Hiramannessa Bibi", "label": "OTHER_PERSON", "start_char": 15183, "end_char": 15209, "source": "ner", "metadata": {"in_sentence": "(2) My daughter Sreemati Hiramannessa Bibi shall et\n\n, Rs."}}, {"text": "Srlmati Bibijannessa Bibi", "label": "OTHER_PERSON", "start_char": 15425, "end_char": 15450, "source": "ner", "metadata": {"in_sentence": "(3) My second wife Srlmati Bibijannessa Bibi shall get\n\nRs."}}, {"text": "s. 6(i)(i)", "label": "PROVISION", "start_char": 16145, "end_char": 16155, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 3, 4 and 5", "label": "PROVISION", "start_char": 16245, "end_char": 16259, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 17305, "end_char": 17312, "source": "regex", "metadata": {"statute": null}}, {"text": "Macnaghten", "label": "OTHER_PERSON", "start_char": 18390, "end_char": 18400, "source": "ner", "metadata": {"in_sentence": "though not quite, the well-known definition of charity given by Lord Macnaghten in Com111issioncrs for Special Purposes of Income Tax\n\nv. Pe111se/(')."}}, {"text": "SUPREME COURT REPORTS (1965] 3 S.C.lf", "label": "COURT", "start_char": 19131, "end_char": 19168, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS (1965] 3 S.C.lf,\n\nis quite clear that the provision for the family of the wakif or for himself cannot be regarded as 'relief of poor', 'medical relief' or the\n\n'advancement of education'."}}, {"text": "N. C. Chatterjee", "label": "LAWYER", "start_char": 19531, "end_char": 19547, "source": "ner", "metadata": {"in_sentence": "But it is contended by Mr. N. C. Chatterjee that in giving a meaning to the expression \"charitable purposes\" we must be guided by the notions of Mahomedan Law and he relies upon the observa.", "canonical_name": "N. C. Chatterjee"}}, {"text": "George Rankin", "label": "OTHER_PERSON", "start_char": 19707, "end_char": 19720, "source": "ner", "metadata": {"in_sentence": "tion of Sir George Rankin in Tribune Press Trustees, Lahore v. l.T.\n\nCommissioner(').", "canonical_name": "George Rankin"}}, {"text": "Chatterjee", "label": "OTHER_PERSON", "start_char": 19785, "end_char": 19795, "source": "ner", "metadata": {"in_sentence": "Mr. Chatterjee claims that provision for the wakif and the wakif's family is a charitable purpose according to Mahomedan Law."}}, {"text": "s. 4(3)(i)", "label": "PROVISION", "start_char": 19976, "end_char": 19986, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act 1922", "label": "STATUTE", "start_char": 19994, "end_char": 20020, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sardar Dayal Singh", "label": "OTHER_PERSON", "start_char": 20583, "end_char": 20601, "source": "ner", "metadata": {"in_sentence": "F In dealing with the will of Sardar Dayal Singh who had constituted a trust to maintain the Press and the Newspaper, \"keeping up the liberal policy of the said newspaper and devoting the surplus income ...... in improving the said newspaper ...... \", the question had arisen whether the running of a newspaper was an object of general public utility or whether it was to be treated as a business G concern."}}, {"text": "High Court at LJhore", "label": "COURT", "start_char": 20965, "end_char": 20985, "source": "ner", "metadata": {"in_sentence": "The High Court at LJhore was divided in its opinion."}}, {"text": "Chitty", "label": "JUDGE", "start_char": 21326, "end_char": 21332, "source": "ner", "metadata": {"in_sentence": "The Judicial Committee pointed out that in reaching this view those learned Judges were following what Chitty J. said in H In re Foveaux, etc.(')"}}, {"text": "foyarulfoh", "label": "JUDGE", "start_char": 21811, "end_char": 21821, "source": "ner", "metadata": {"in_sentence": "j!)J.,\n\n\" FAzLUL RABBI PRADHAN v. STATE OF WEST BENGAL (Hi<foyarulfoh, J.) 315\n\nA necessary undertake and control othei:wise-trusts to promote all ..._ kinds of \"fantastic\" 9bjects in perpetuity would be establ\\sheil."}}, {"text": "Raymond W.est", "label": "OTHER_PERSON", "start_char": 22587, "end_char": 22600, "source": "ner", "metadata": {"in_sentence": "The true approach to such questions, in \"Cases which arise in countries to which English ideas-let alone English t(\\Chnicalitiesmay be inapplicable, was consider- ' ed by the Board in Yeap Chealz Neo v. Ong Cheng Neo('), and it was well said by Sir Raymond W.est in Fµtima Bibi\n\nv. Advocate General of Bombay('); \"But useful and beneficial iti what sense?"}}, {"text": "Amir Ali", "label": "OTHER_PERSON", "start_char": 23893, "end_char": 23901, "source": "ner", "metadata": {"in_sentence": "This was so declared in a succession of cases by the Judici;!l Co!1nlittee and 'the opinion of Amir Ali expressed Jn his Tagore Lectures as well as in Meer\n\nMahoml!d lsr'aeli Khan v. Shfl.1fi Chum Chore(') and Bikani Mia v.\n\nShi1k11/ Poddar\"(') 1ya!• not accepted."}}, {"text": "Hobhouse", "label": "OTHER_PERSON", "start_char": 24708, "end_char": 24716, "source": "ner", "metadata": {"in_sentence": "Speaking of the precept above quoted by us Lord Hobhouse observed:\n\n\" ...... it would be doing wrong .to the great lawgiver to suppose that he is thereby commenjing gifts for which the donor exercises no self-denial; in which he takes back with one hand what he appears to put away with the other; which are to form the centre of attraction for accumulations of income and further accessions of family property; which carefully protected so-called managers from being called to a-cccunt; which seek to give to the donors and their family the enjoyment of property free from all liability to creditors; and which do not seek the benefit of others beyond the use of empty words.\""}}, {"text": "L.R. 17 I.A. 25", "label": "CASE_CITATION", "start_char": 25390, "end_char": 25405, "source": "regex", "metadata": {}}, {"text": "Natson", "label": "OTHER_PERSON", "start_char": 25418, "end_char": 25424, "source": "ner", "metadata": {"in_sentence": "Similar observations were made by Lord Hobhouse in L.R. 17 I.A. 25 and by Lord Natson in L.R. 19 I.A. 170 in earlier cases."}}, {"text": "L.R. 19 I.A. 170", "label": "CASE_CITATION", "start_char": 25428, "end_char": 25444, "source": "regex", "metadata": {}}, {"text": "These cases led to agitation in India and the Mussalman Wakf Validating Act, 1913", "label": "STATUTE", "start_char": 25464, "end_char": 25545, "source": "regex", "metadata": {}}, {"text": "intention of the Validating Act", "label": "STATUTE", "start_char": 26353, "end_char": 26384, "source": "regex", "metadata": {}}, {"text": "Indi1", "label": "GPE", "start_char": 26707, "end_char": 26712, "source": "ner", "metadata": {"in_sentence": "pious but is not a charity in the legal sense and the Courts in Indi1 have never regarded such gifts as for religious or charitable purposes even under the Mahomedan Law."}}, {"text": "Wakf Validating Act 1913", "label": "STATUTE", "start_char": 26896, "end_char": 26920, "source": "regex", "metadata": {}}, {"text": "Shariat Act 1937", "label": "STATUTE", "start_char": 26929, "end_char": 26945, "source": "regex", "metadata": {}}, {"text": "FAZLUL RABBI PRADHAN", "label": "JUDGE", "start_char": 27204, "end_char": 27224, "source": "ner", "metadata": {"in_sentence": "FAZLUL RABBI PRADHAN 1.'.", "canonical_name": "FAZLUL RABBI PRADHAN"}}, {"text": "England", "label": "GPE", "start_char": 27624, "end_char": 27631, "source": "ner", "metadata": {"in_sentence": "The earliest statµte on the subject is one of 1601 in the forty-third year of the reign of Queen Elizabeth I and in its preamble it gave a list of charitable objects which came within the purview of that Act, and for another, Courts in England extended these insl2nces to others by analogy and the subject is often rendered vague an'.!"}}, {"text": "George Rank", "label": "OTHER_PERSON", "start_char": 27920, "end_char": 27931, "source": "ner", "metadata": {"in_sentence": "The observations of Sir George Rank; n in the Tribune CQ1e, on which much reliance is place:i by the appellants were intend2d to convey the same caution about Englis.h c::ses which we have sounded here.", "canonical_name": "George Rankin"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 28646, "end_char": 28660, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 29770, "end_char": 29778, "source": "ner", "metadata": {"in_sentence": "If the latter bene\n\nfits had ceased or the families had become extinct leaving only the\n\ncharitie~ or if the provisions were for poor and needy though belonging to the wakif's family, other considerations might conceivably have arisen, as was stated by Bachawat J. in his opinion.", "canonical_name": "Bacha wat"}}]}
{"document_id": "1965_3_318_328_EN", "year": 1965, "text": "S. CHATTANATHA KARAYALAR A v.\n\nTHE CENTRAL BANK OF INDIA AND OTHERS\n\nMarch 9, 1965\n\n[P. B. GAJENDRAGADKAR, C. J., RAGHUBAR DAYAL AND\n\nV. RAMASWAMI, JJ.] B Promissory Note, Letter of continuity and Hypothecation Agreement-Interpretation of-Liability if as surety of co-obligant.\n\nOn the basis of a promissory note and a letter of continuity executed by the appellant and respondent Nos. 2 and 3 and a hypothecation agreement executed by the respondent No. 2, the respondent No. I-bank opened on overdraft account. in the name of respondent 2. In the promissory note, the appellant and respondent C Nos. 2 and 3 had \"jointly and severally promised to pay\" the bank or order; in the letter of continuity sent along with promissory note to the bank, the appellant, respondent Nos. 2 and 3 stated that \"the said promissory note is to be a surety to you for the repayment of the ultimate balance or sum remaining unpaid on the overdraft\"; and in the hypothecation agreement the bank had agreed to open a cash credit account at the request of respondent No. 2. The D bank filed a suit against the appellant and re;; pondent Nos. 2 and 3 for recovery of the amount due on the overdraft. The appellant and respondent No. 3 pleaded, inter alia, that they had executed the promissory note as a surety for respondent No. 2 and that they are not co-obligants. The Trial Court held the appellant and respondent No. 3. were not merely sureties but were co-obligants and decreed the suit, which was affirmed by the High Court. In appeal by certi- E ficate; HELD: The finding of the High Court was not correct. [324 C-D].\n\nInterpreting the language of the promissory note in the context of the letter and the hypothecation agreement, the status of the apoellant with regard to the overdraft account was that of a surety and not of co-obligant. [324 A].\n\nIf the transaction is contained in more than one document bet- F ween the same parties, they must be read and interpreted together and they have the same legal effect for all purposes as if they are one document. [323 C].\n\nManks v. Whiteley, (1912) I Ch. 735, applied; The pcovisions of Section 92 of the Evidence Act did not app])• in the present case, because the appellant was not attempting to furnish evidence of any oral agreement in derogation of the promissory note but relied on the existence of a collateral agreement in vvritirig the letter and the hypothecation agrment, \\Vhich formed parts of the .:;.ame transaction as the promissory note. r325 Hl Case law referred to.\n\nCrv1L APPELLATE JURISDICTION: Civil Appeal No. 405 of 1964. .\n\nAppeal from the judgment and decree dated July 18. 1962 of the Kerala High Court in A. S. No. 561 of 1961.\n\nS. T. Desai. M. S. K. Sastri and M. S. Narasimhan for the appellant. .\n\nG. S. Pathak. B. Dutta, C. Chopra. J. B. Dadachanji, 0. C. l'vfathur and Ravindcr Narain for Respondent No. 1.\n\ns. c. KABAYALAR v. CENTRAL BANK (Ramaswami, J.) 3l9\n\nThe Judgment of the Court was delivered by Ramaswami, J.\n\nThis appeal by certificate is brought on behalf of the 3rd defendant against the judgment and decree of the High Court of Kerala dated July 18, 1962 in A.S. No. 561 of 1961 which affirmed the. judgment and decree of the Court of the Subord; nate Judge of Alleppey in 0.S. No. 114 of 1957 ..\n\nBy a resolution Ex. BD dated November 25, 1946 the Board of Directors of the !st defendant Company authorised the 2nd defendant to obtain financial aocommodation from the plaintiffbank to the extent of Rs. 15 lakhs under different kinds of loans.\n\nPursuant to this resolution the Company by its Jetter Ex. DE dated November 26, I 946 asked for accommodation for Rs. I Jakh under clean oyrdraft, for Rs. 4 Jakhs under open loan and for Rs. 10 lakhs under out agency and key loans .. On November 26, 1946 all the three defendants executed a prom; ssory note Ex. B in favour of the plaintiff-bank for a sum of Rs. 4 lakhs. The promissory note was sent to the plaintiff-bank along with a letter-Ex .. A styled letter of continuity dated November 26, 1946. Ex. A reads as follows:\n\n\"Alleppey, 26th November, 1946..\n\nThe Agent, The Central Bank of India Limited, Alleppey.\n\nDear Sir,\n\nWe beg to enclose an on demand pro-note p.\n\nRs. 4,00,000 (Rupees Four lacs only) s; gned by us which is given to you as security for the repayment of any overdraft which is at present outstanding in our name and also for the repayment of any overdraft to the extent of Rs. 4,00,000 (Rupees four lacs only) which we may avail of hereafter and the said Pro-Note is to be a security to you for the repayment of the ultimate balance of sum remaining unpaid on the overdraft and we are to remain liable to the Pro-Note notwithstanding the fact that by payments made into the account of the overdraft from time to time the overdraft may from time to time be reduced O( extinguished or even that the balance of the said accounts may be at credit.\n\nYours faithfully, for CASHEW Products Corporation Ltd.\n\nFor General Agencies Ltd. (Respondent 2) Sd/- P. S. George Sd/- P. S. George (Respondent 3) Managing Director,\n\nSd/- S. Cbattanatha Karayalar (Appellant).\n\nExhibit B states: \"Br. Rs. 4,00,000\n\nManaging Agents.\n\nAlleppy, 26th November 1:946.\n\nSUPREME COURT REPORTS [1965] 3 s.c.11.\n\nOn Demand we, the Cashew Products Corporation A Ltd., S. Chattanatha Karayalar and P. S. George jointly and severally proinise to pay The Central Bank of India Limited or order the sum of British Rs. Four Lacs only together with interest on such sum from this date at the rate of Two per cent over the Reserve Bank of India rate with a minimum of Five per cent per annum with quar- B terly rests for value received.\n\nFor Cashew Products Corporation Ltil.\n\nFor General Agencies Ltd.\n\nSd/- P. S. George (Respondent 2) Managing Director, O . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . Managing Agents.\n\nSd/-P. S. George (Respondent No. 3).\n\nSd/- S. Chattanatha Karayalar (Appellant).\n\nOn the same day, defendant No. 1 as \"Borrower\" executed D m favour of the plaintiff-bank Ex. G, a cjeed of hypothecation of its stocks of goods for securing the Demand Cash credit. Ex. G is to the following effect:\n\n\"Hypothecat!on of goods to secure a Demand cash Credit.\n\nNo.\n\nAmount No. 4,00,000.\n\nName. The Cashew Products Corporation, Limited, Quilon.\n\nThe Central Bank of India, Limited (hereinafter called 'the Bank') having at the request of the Cashew Products Corporation Ltd., Quilon, (hereinafter called 'the Borrowers' opened or agreed to open in the Books of the Bank at Alleppey a Cash Credit account to the extent of Rs. Four lacs only with the Borrowers to remain in force until closed by the Bank and to be secured by goods to be hypothecated with the Bank it is hereby agreed between the Bank and the Borrowers (the Borrowers agreeing jointly and severally) as follows:-\n\n• * • • •\n\n14. The Borrowers agree to accept as conclusive proof of the correctness of any sum claimed to be due from them to the Bank under this agreemrnt a statement of account made out from the books of the Banks of the Bank and signed by the Accountant or other duly authorised officer of the Bank without the production of any other voucher, document or paper.\n\ns. c. KARAYAI.AR v. CENTRAL BANK (Rnmaswami, J.) 321\n\n15. That this Agreement is to operate as a security for the balance from time to time due to the Bank and also for the ultimate balance to become due to on the said Cash Credit Account and the said account is not to be considered to be closed for the purpose of this security and tlie security ofhypothecated goods is not to be con- B sidered exhausted by reason of the said Cash Credit Account being brought to credit at any time or from time to time or of its being drawn upon to the full extent of said sum of Rs. 4,00,000 if afterwards reopened by a payment to credit. c\n\n* * • • * In witness whereof the Borrowers have hereto set, thelr hands this Twenty sixth day of November the Christian Year one thousand nine hundred and fortysix.\n\nFor Cashew Products Corporation Ltd., For General Agencies Ltd;\n\nSd/- Managing Director, Managing Agents\n\nE Sd/-\n\nSchedule of goods referred to in the foregoing instrument, Stocks of cashewnuts, cashew kernels, tin plates, Hoop Iron and other packing materials stored and or to be stored in the factories at Kochuplamood, Chathanoor, Ithikara, Kythakuzhi, Paripalli, Palayamkunnu and anyother factories in which we may. be storing from time to time and at Cochin awaiting shipment.\n\nFor Cashew Products Corporation Ltd; For General Agencies Ltd; Sd/- Managing Director, Managing Agents.\"\n\nOn the basis of those documents the plaintiff-bank opened an H overdraft account in the name of defendant No. I. On December 21, 1949, the three documents-Ex. A, B and G were renewed in identical terms by Exs. C, D and F. On January 1, 1950 a sum of Rs. 3,24,645/12/2 became due to the plaintiff-bank and on that date a demand notice-Ex. 'O' was sent by the plaintiff-bank for repayment of the amount. A second notice-Ex. L was sent by the plaintiff-bank on April 26. 1950. On September 8, 1950 the plaintiff. bank brought a suit for the recovery of Rs. 2,86,292/11I11 from\n\nSUPREME COURT REPORTS [1965) 3 s.c.R.\n\nall the three defendants. The suit was contested by all the defend- A ants. The case of defendant No. 1 was that it had sustained Joss on account of sudden termination of credit facilities by the plaintiff-bank and the amount of Joss sustained should be set off against the claim of the plaintiff-bank. Defendants Nos. 2 and 3 pleaded that they had executed the promissory notes only as a surety for the 1st defendant and that they are not co-obligants. It was further alleged that the B plaintiff-bank had granted Joan to the 1st defendant in other forms such as Out Agency loans against goods which were security for the open loan. It was said that the plaintiff-bank had made adjustments in the open loan account and in. the clean over-draft account by debiting and correspondingly crediting in other accounts without the consent of defendants 2 and 3. The plaintiff-hank had also allow- C ed defendant No. 1 to over-draw freely in the clean overdraft and open loan accounts far beyond the limits agreed upon. It was alleged that the plaintiff-bank had converted secured loans into simple loans by releasing goods covered by Bills of Lading against trust .receipts and had thereby deliberately frittered away such securities. They contended that they were discharged from obligation as sureties to D the contract for these reasons. Upon these rival contentions the. learned Subordinate Judge of Alleppey took the view that defendants 2 and 3 were not merely sureties but they were co-obligants, because they had executed the promissory notes-Exs. B & D. In view of this finding the learned Subordinate Judge considered it unnecessary to go into the question whether. defendant No. 3 was E absolved from his liability \"for all or any reasons set forth in para 5 of the Consolidated Written Statement filed by him\". Agaihst the judgment and decree of learned Subordinate Judge, Alleppey defendant No. 3 presented an appeal in the High Court of Kerala under A. S. 561 of 1961. Defendants 1 and 2 did not appeal. The appeal was dismissed by the High Court of Kerala on July 12, 1962.\n\nF It was held by the High Court that defendant No. 3 was a co-obligant and not a surety. On July 16, 1962 defendant No. 3 filed C.M.P. No. 5032 of 1962 praying that the argument of the appellant with regard to his liability as co-obligant may be expressly dealt with in the judgment of the High Court and complaining that the appellant would be seriously prejudiced if the omission was allowed to remain.\n\nG Thereupon the learned Judges of the High Court wrote a supplementary judgment on July 18, 1962 rejecting the further arguments addressed on behalf of the appellant.\n\nThe first question presented for determination in this case is whether the status of the 3rd defendant in regard to the transaction of overdraft account is that of a surety or of a co-obligant. It was H argued by Mr. Desai on behalf of the appellant that the High Court has misconstrued the contents of Exs. A and B in holding that the 3rd defendant has undertaken the liability as a co-obligant. It was submitted that there was an integrated transaction constituted by the various documents-Bxs. A, B and G executed between the parties on the same day and the legal effect of the documents was to confer on the 3rd defendant the status of a surety and not of a\n\ns. c. XAMYALARV. C1'NTltAL BANK (Ramaswami, J.) 323\n\ncoobligant. In our opinion, the argument put forward on behalf of the appellant is well-founded and must be accepted as correct.\n\nIt is true that in the promissory note-Ex. B all the three defen dants have \"jointly and severally promised to pay the Central Bank of India Ltd. or order a sum of Rs. 4 lakhs only together with inter est on such sum from this date\", but the transaction between the parties is contained not merely in the promissory note-Ex. B-but also in the letter of continuity dated November 26, 1946--Ex. A which was seilt by the defendants to the plaintiff-bank along with promissory note-Ex. B on the same date. There is another document executed by defendant No. I on November 26, 1946-Ex. G- Hypothecation agreement. The principle is well-established that if the transaction is contained in more than one document between the same parties they must be read and interpreted together and they have the same legal effect for all purposes as if they are one document. In Manks v. Whiteley,(') Moulton, L. J. stated:\n\n\"Where several qeeds form part of one transaction and are contemporaneously executed they have the same effect for all purposes such as are relevant to this case as if they were one deed. Each is executed on the faith of all the others being executed also and is intended to speak only as part of the one transaction, and if one is seeking to make equities apply to the parties they must be equities arising out of the transaction as a whole.\"\n\nIt should be noted in the present case that the promissory note-Ex. B-was enclosed by the defendants along with the letter of continuity-Ex. A before send; ng it to the plaintiff-bank. In the letter-Ex. A i, is clearly stated that the promissory note Ex. B was given to the plaintiff-bank \"as security for the repayment of any overdraft to the extent of Rs. 4,00,000\". It is further stated in Ex. A that \"the said promissory note is to be a security to you for the repayment of the ultimate balance or sum remaining unpaid on the overdraft\". In the hypothecat; on agreement-Ex. G it is stated that the plaintiff-bank has agreed to open a cash Credit account to the extent of Rs. 4 lakhs at the request of the Cashew Products Corporation Ltd., Quilon. According to para 15 of the hypothecation agreement it operates as a security for the balance due to the plaintiff. bank on the Cash Credit account. Para 12 of the hypothecation agreement states that if the net sum realised be insufficient to cover the balance due to the plaintiff-bank, defendant No. 1 should pay the balance of the ac.count on product; on of a statement of account made out from the books of the bank as provided in the 14th Clause.\n\nUnder this Clause defendant No. 1 agreed to accept as conclusive proof of the correctness of any sum claimed to be due from it to the bank a statement of account made out from the books of the Bank and signed by the Accountant or other duly authorised officer\n\n(') [1912] 1 Ch. 735.\n\nL/B(N)3SCI-8\n\n324 SUPBEKE COURT llEl'ORTS [1965] 3. s.o.n.\n\nof the Bank without the production of any other document. If the language of the promissory note-Ex. B is interpreted in the context of Exs. A & G it is manifest that the status of the 3rd defendant with regard to the transaction was that of a surety and not of a cir obligant. This conclusion is supported by letters-Exs. AF dated November 27, 1947, AM dated December 17, 1947 in which the Chief Agent of the plaintiff-bank has addressed defendant No. 3 as the \"guarantor\". There are similar letters of the plaintiff-bank, namely, Exs. CE dated December 28, 1947, CG dated January 13, 1948, AS dated February 23, 1949, V dated October 21, 1949, III dated December 16, 1949, IV dated January 12, 1950 and 'O' dated March 29, 1950 in which defendant No. 3 is referred to either as a \"guarantor\" or as having furnished a guarantee for the loan. Our concluded opinion, therefore, is that the status of the 3rd defendant with regard to the overdraft account was that of a surety and not of CCK>bligant and the finding of the High Court on this issue is not correct.\n\nOn behalf of respondent No. 1 Mr. Pathak stressed the argument that there is no contract of suretyship in the present case in terms of s. 126 of the Contract Act and the plaintiff-bank is not, legally bound to treat the 3rd defendant merely in the character of a surety. Mr. Pathak relied upon the decision of the Madras High Court in Vyravan Chettiar v. Official Assignee of Madras(') in which it is pointed out that persons who are jointly and severally liable on promissory notes are not sureties under s. 126 of the Contract Aci, nor do such persons occupy a position analogous to that of a surety strictly so called to attract the provisions of s. 141 of the Contract Act. Reference was made, in this connection, to the deciSion of the House of Lords in Duncan Fox & Co. v. North & South Wales Bank(') in which Lord Selbourne, L. C. distinguished between three kinds of cases; ( l) those in which there is an agreement to constitute, for a particular purpose, the relation of principal and surety, to which agreement the creditor thereby secured is a party; (2) those in which there is a similar agreement between the principal and surety only, to which the creditor, is a stranger, and (3) those in which, without any such contract of suretyship, there is a primary and a secondary liability of two persons for one and the same debt, the debt being as between the two that of one of those persons only, and not equally of both, so that the other if he should be compelled to pay it, would be entitled to reimbursement from the persons by whom (as between the two) it ought to have been pa!d. It is pointed out by the learned Lord Ch, ancellor that in all these kinds of cases the person who discharged the liability due to the creditor, would be entitled to the benefit of the security held by the creditor though a case of surety ship strictly speaking would. fall only under cl<iss 1, as a contract of guarantee is confined to agreemellts where the surety agrees with the creditor that he would discharge the liability of the principal\n\n(') A.l.R. 1933 Ma<l, 39.\n\n(1) (1881] 6 A.C.I.\n\ns. c. KARAYALARV. CENTl.<AL BANk (Rama.sWami, J.) 325\n\ndebtor in case of his default. It is manifest that classes 2 and 3 are not cases of suretyship strictly so called. Lord Selbourne observed that the case before him did not fall within the first or the second class but it fell within the 3rd class in which strictly speaking there was no contract of suretyship. But the Lord Chancellor held in that case that even in the second and third class of cases the surety has some right to be placed in the shoes of the creditor where he paid the amount. The argument of Mr. Pathak was that the position in Indian Law is different and the principles relied upon by Lord Selbourne, L. C. in Duncan Fox & Co. v. North &South Wales Bank(') did not apply to the present case. Mr. Pathak referred, in this connection, to the illustration to s. 132 of the Contract Act in support of his argument. We consider that the legal proposition for which Mr. Pathak is contending is correct, but the argument has not much relevance in the present case. It is true that s. 126 of the Contract Act requires that the creditor must be a party to the con tract of guarantee. It is also true that under s. 132 of the Contract Act the creditor is not bound by any contract between the co, • debtors that one of them shall be liable only on the default .of he other even though the .creditor may have been aware of the existence of the contract between the two co-debtors. In the present ase, however, the legal position is different, because the plaintiff-bank was a party to the contract of guarantee-Ex. A which is contemporaneous with the promissory note-Ex. B. The plaintiff-bank was also a party to the contract of hypothecation executed by defendant No. 1 in which it is stated that the plaintiff-bank had agreed\n\nr.o open a Cash Credit Account to the extent of Rs. 4 lakhs in favour of defendant No. I. It is manifest, therefore, in the present case that the requirements of s. 126 of the Contract Act are satisfied and defendant No. 3 has the status of a surety and not .of a coobligant in the transaction of overdraft account opened in the mme of defendant No. I by the plaintiff-bank. On behalf of respondent No. I Mr. Pathak also referred to the decision in Venkata Krishnayya\n\nv. Karnedan Kothari(') and submitted that defendant No. 3 cannot be permitted to give evidence in regard to a collateral transaction in view of the bar imposed by s. 92 of the Evidence Act and his position is as a co-obligant and that the terms of the promissory note cannot be altered by any other transaction. We are unable to accept this argument as correct. The provisions of s. 92 of the Evidence Act do not apply in the present case, because defendant No. 3 is not attempting to flrnish evidence of any oral agreement in derogation of the promissory note but relying on the existence of a collateral agreement in writing-Exs. A & G which form parts of the same transaction as the promissory note-Ex. B. The decision of the Madras High Court in Venkata Krishnayya v. Karnedan Kothari(') is, therefore, not applicable and Mr. Pathak is not able to make good his submission on this aspect of the case.\n\n(') [1881) 6 A.C.I.\n\n(1) A.J.R. 1935 Had. 643.\n\nSUPREME COURT REPO~TS tl965J 3 s.c.1\\,\n\nIt was also contended by Mr. Pathak on behalf of respondent A No. 1 that the suit is based on the promissory note-Ex. B against all the three defendants and not on the overdraft account. We <io not think there is any substance in this argument. In this connection Mr. Pathak took us through the various clauses of the plaint but there is no mention about the promissory note. dated December 21, 1949 except in para 6 of the plaint which recites that the defendant executed a promissory note \"as security for the repayment of the balance outstanding under the overdraft\". We are satisfied, on exam; nation of the language of the plaint, that the suit is based not upon the promissory note but upon the balance of the overdraft account in the books of the plaintiff-bank. In para 11 of the plaint the plaintiff-bank asked for a decree against the defendants jointly and severally \"for the recovery of Rs. 2,86,292 / ll / II as per accounts annexed\". In the plaint it is stated that the plaintiff had given two notices to the defendants-Ex. 'O' dated January 1, 1950 and Ex. L dated April 26, 1950 but in neither of these not\\ces has the plaintiff referred to the promissory' note executed by the defendants or that the suit was based upon the promissory note. On the contrary, the plaintiff-bank referred in Ex. 'O' to the open loan accounts and asked the defendants to pay the amounts due to the bank under these accounts. It is, therefore, not possible for us to accept the contention of Mr. Pathak that the suit is based upon the promissory note and not upon the amount due on the overdraft account. In this connection, we may incidentally refer to the fact that in its statement of the case before this Court, respondent No. 1 has clearly stated that the claim on the overdraft account against the appellant was valid \"because the overdraft was treated as in favour of all the tlefendants (appellant and respondents 2 and 3 herein) and that respondent No. 2 was only authorised to operate independently on that account and that the limit under the overdraft was placed at the disposal of respondent No. 2 by an express authority given by all the defendants (the appellant and respondents 2 and 3)\". This shows thatTespondent No. l's case is that the suit is based on an overdraft, and since the overdraft was treated\n\nas in favour of all the defendants, the appellant is liable for the balance due on it.\n\nWe shall then consider the quest; on whether defendant No. 3\n\nis discharged of his liability as a surety by reason of the alleged conduct of the plaintiff-bank in violating the terms of the agreement-Ex. G or by the alleged fraudulent or negligent conduct of H the plaintiff-bank in other ways. It was submitted on behalf of the appellant that the plaintiff-bank had made adjustments in the open loan account and in the clean overdraft account with the 1st defendant by debiting and correspondingly crediting in other accounts without the consent of the appellant. It was further alleged that the plaintiff-bank had granted loans to the 1st defendant against goods covered by open loan agreement and that it had converted\n\nS, o. KARAYALAR i. CENTRAL l3AN!t (Ilamaswmn.i, J.) 32 7\n\nsecured Joans into simple loans by releasing goods covered by the Bills of Lading against trust receipts and had thereby deliberately frittered away such securit'es. The question at issue is a mixed question of law and fact and it is unfortunate that the High Court has not properly dealt with this question or given a finding whether the appellant would be discharged from the liability as a surety for the overdraft account because of the alleged conduct of the plain tiff-bank. We consider it necessary that this case should go back on remand to the High Court of Kerala for deciding the issue and to give proper relief to the parties. In this connection, it is necessary to point out that after the High Court delivered its judgment on July 12, 1962, an application was made by the learned Advocate appearing for the appellant that some grounds which had been urged by him before the High Court had not been considered by it The High Court, threfore, adopted the somewhat unusual course of del'vering a supplemental judgment. Mr. Desai contends that even the supplemental judgment has failed to consider the ap pellant's contention that he had been discharged by reason of the fact that adjustments were made by respondent No. 1 indiscrimi nately in respect of its dealings in three or four different accounts with respondent No. 2 to the prejudice of the appellant. We have broadly indicated the nature of the contention raised by Mr. Desai.\n\nOrdinarily, we do not permit parties to urge that points raised on their behalf in the High Court had not been considered, unless it is estabfohed to our satisfaction that t~ points in question had in fact been urged before the High Court and the High Court, through inadvertence, has failed to consider them. In the present case, we are not prepared to take the view that the grievance made by Mr. Des:1 i is not well-founded. It does appear that after the first judgment was delivered. an application was made by the learned Advocate who argued the appeal himself before the High Court in which he set out his complaint that some of the points which he had argued before the High Court had not been considered by it.\n\nThat is why the High Court delivered a supplemental judgment.\n\nAggrieved by the said judgment. the appellant filed an application for cer\\ificate before the High Court, and in this application again he has taken specific grounds, e.g., under paragraph 6(k) and para graph 8 that even the supplemental judgment has failed to consider some of the points urged by him. While granting the certificate, the High Court has made no comment on these grounds. It is to be regretted that when these grounds appear to have been urged before the High Court, the High Court should have failed to deal with them even in its supplemental judgment. That is the reason why we think it is necessary that the matter must go back to the Higl!\n\nCourt for disposal of the appeal in the light of this judgment.\n\nMr. Pathak. no doubt, seriously contested the validity of Mr.\n\nDesai's argument. He urged that the adjustments on which Mr.\n\nDesai has founded his claim for discharge do not really support\n\n328 SUPREME COURT l\\EPORTB\n\n[1965] 3 B.C.R,\n\nhis case. We. proposed to express no opinion on this point. As we A have just observed, the contention thus raised amounts to a mixed question of fact and law and we do not think it would be expedient for us to deal with it ourselves when the High Court has omitted to conslder it. ·\n\nFor these reasons we allow this appeal, set aside the judgment B and decree of the High Court of Kerala dated July 18, 1962 in A.S. 561 of J 961 and order that the case should go back for being reheard and redetermined by the High Court in accordance with the observations made in our judgment. The parties will bear their own costs upto this stage.\n\nAppeal Allowed.", "total_entities": 74, "entities": [{"text": "S. CHATTANATHA KARAYALAR", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "S. CHATTANATHA KARAYALAR", "offset_not_found": false}}, {"text": "THE CENTRAL BANK OF INDIA AND OTHERS", "label": "RESPONDENT", "start_char": 31, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "THE CENTRAL BANK OF INDIA AND OTHERS", "offset_not_found": false}}, {"text": "March 9, 1965", "label": "DATE", "start_char": 69, "end_char": 82, "source": "ner", "metadata": {"in_sentence": "S. CHATTANATHA KARAYALAR A v.\n\nTHE CENTRAL BANK OF INDIA AND OTHERS\n\nMarch 9, 1965\n\n[P. B. GAJENDRAGADKAR, C. J., RAGHUBAR DAYAL AND\n\nV. RAMASWAMI, JJ.]"}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 85, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL", "label": "JUDGE", "start_char": 114, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 134, "end_char": 151, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Section 92", "label": "PROVISION", "start_char": 2124, "end_char": 2134, "source": "regex", "metadata": {"statute": null}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 2648, "end_char": 2665, "source": "ner", "metadata": {"in_sentence": "1962 of the Kerala High Court in A. S. No."}}, {"text": "M. S. K. Sastri", "label": "LAWYER", "start_char": 2706, "end_char": 2721, "source": "ner", "metadata": {"in_sentence": "M. S. K. Sastri and M. S. Narasimhan for the appellant. ."}}, {"text": "M. S. Narasimhan", "label": "LAWYER", "start_char": 2726, "end_char": 2742, "source": "ner", "metadata": {"in_sentence": "M. S. K. Sastri and M. S. Narasimhan for the appellant. ."}}, {"text": "G. S. Pathak. B. Dutta", "label": "LAWYER", "start_char": 2765, "end_char": 2787, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak."}}, {"text": "C. Chopra", "label": "LAWYER", "start_char": 2789, "end_char": 2798, "source": "ner", "metadata": {"in_sentence": "B. Dutta, C. Chopra."}}, {"text": "J. B. Dadachanji", "label": "LAWYER", "start_char": 2800, "end_char": 2816, "source": "ner", "metadata": {"in_sentence": "J. B. Dadachanji, 0."}}, {"text": "Ravindcr Narain", "label": "LAWYER", "start_char": 2838, "end_char": 2853, "source": "ner", "metadata": {"in_sentence": "C. l'vfathur and Ravindcr Narain for Respondent No."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 2973, "end_char": 2982, "source": "ner", "metadata": {"in_sentence": "s. c. KABAYALAR v. CENTRAL BANK (Ramaswami, J.) 3l9\n\nThe Judgment of the Court was delivered by Ramaswami, J.\n\nThis appeal by certificate is brought on behalf of the 3rd defendant against the judgment and decree of the High Court of Kerala dated July 18, 1962 in A.S. No."}}, {"text": "November 26, 1946", "label": "DATE", "start_char": 3765, "end_char": 3782, "source": "ner", "metadata": {"in_sentence": "10 lakhs under out agency and key loans .. On November 26, 1946 all the three defendants executed a prom; ssory note Ex."}}, {"text": "CASHEW Products Corporation Ltd.", "label": "ORG", "start_char": 4922, "end_char": 4954, "source": "ner", "metadata": {"in_sentence": "Yours faithfully, for CASHEW Products Corporation Ltd.\n\nFor General Agencies Ltd. (Respondent 2) Sd/- P. S. George Sd/- P. S. George (Respondent 3) Managing Director,\n\nSd/- S. Cbattanatha Karayalar (Appellant)."}}, {"text": "P. S. George", "label": "RESPONDENT", "start_char": 5002, "end_char": 5014, "source": "ner", "metadata": {"in_sentence": "Yours faithfully, for CASHEW Products Corporation Ltd.\n\nFor General Agencies Ltd. (Respondent 2) Sd/- P. S. George Sd/- P. S. George (Respondent 3) Managing Director,\n\nSd/- S. Cbattanatha Karayalar (Appellant).", "canonical_name": "P. S. George"}}, {"text": "Managing Director,\n\nSd/- S. Cbattanatha Karayalar", "label": "RESPONDENT", "start_char": 5048, "end_char": 5097, "source": "ner", "metadata": {"in_sentence": "Yours faithfully, for CASHEW Products Corporation Ltd.\n\nFor General Agencies Ltd. (Respondent 2) Sd/- P. S. George Sd/- P. S. George (Respondent 3) Managing Director,\n\nSd/- S. Cbattanatha Karayalar (Appellant)."}}, {"text": "Cashew Products Corporation A Ltd.", "label": "ORG", "start_char": 5256, "end_char": 5290, "source": "ner", "metadata": {"in_sentence": "On Demand we, the Cashew Products Corporation A Ltd., S. Chattanatha Karayalar and P. S. George jointly and severally proinise to pay The Central Bank of India Limited or order the sum of British Rs."}}, {"text": "S. Chattanatha Karayalar", "label": "LAWYER", "start_char": 5292, "end_char": 5316, "source": "ner", "metadata": {"in_sentence": "On Demand we, the Cashew Products Corporation A Ltd., S. Chattanatha Karayalar and P. S. George jointly and severally proinise to pay The Central Bank of India Limited or order the sum of British Rs.", "canonical_name": "S. CHATTANATHA KARAYALAR"}}, {"text": "P. S. George", "label": "LAWYER", "start_char": 5321, "end_char": 5333, "source": "ner", "metadata": {"in_sentence": "On Demand we, the Cashew Products Corporation A Ltd., S. Chattanatha Karayalar and P. S. George jointly and severally proinise to pay The Central Bank of India Limited or order the sum of British Rs.", "canonical_name": "P. S. George"}}, {"text": "Central Bank of India Limited", "label": "RESPONDENT", "start_char": 5376, "end_char": 5405, "source": "ner", "metadata": {"in_sentence": "On Demand we, the Cashew Products Corporation A Ltd., S. Chattanatha Karayalar and P. S. George jointly and severally proinise to pay The Central Bank of India Limited or order the sum of British Rs."}}, {"text": "Reserve Bank of India", "label": "ORG", "start_char": 5540, "end_char": 5561, "source": "ner", "metadata": {"in_sentence": "Four Lacs only together with interest on such sum from this date at the rate of Two per cent over the Reserve Bank of India rate with a minimum of Five per cent per annum with quar- B terly rests for value received."}}, {"text": "Managing Director, O . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . Managing Agents.", "label": "RESPONDENT", "start_char": 5754, "end_char": 5857, "source": "ner", "metadata": {"in_sentence": "For General Agencies Ltd.\n\nSd/- P. S. George (Respondent 2) Managing Director, O . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . ."}}, {"text": "S. Chattanatha Karayalar", "label": "RESPONDENT", "start_char": 5902, "end_char": 5926, "source": "ner", "metadata": {"in_sentence": "Sd/- S. Chattanatha Karayalar (Appellant).", "canonical_name": "S. CHATTANATHA KARAYALAR"}}, {"text": "Bank of India, Limited", "label": "ORG", "start_char": 6310, "end_char": 6332, "source": "ner", "metadata": {"in_sentence": "The Central Bank of India, Limited (hereinafter called 'the Bank') having at the request of the Cashew Products Corporation Ltd., Quilon, (hereinafter called 'the Borrowers' opened or agreed to open in the Books of the Bank at Alleppey a Cash Credit account to the extent of Rs."}}, {"text": "Alleppey", "label": "GPE", "start_char": 6525, "end_char": 6533, "source": "ner", "metadata": {"in_sentence": "The Central Bank of India, Limited (hereinafter called 'the Bank') having at the request of the Cashew Products Corporation Ltd., Quilon, (hereinafter called 'the Borrowers' opened or agreed to open in the Books of the Bank at Alleppey a Cash Credit account to the extent of Rs."}}, {"text": "Cashew Products Corporation Ltd.", "label": "ORG", "start_char": 7998, "end_char": 8030, "source": "ner", "metadata": {"in_sentence": "For Cashew Products Corporation Ltd., For General Agencies Ltd;\n\nSd/- Managing Director, Managing Agents\n\nE Sd/-\n\nSchedule of goods referred to in the foregoing instrument, Stocks of cashewnuts, cashew kernels, tin plates, Hoop Iron and other packing materials stored and or to be stored in the factories at Kochuplamood, Chathanoor, Ithikara, Kythakuzhi, Paripalli, Palayamkunnu and anyother factories in which we may."}}, {"text": "Kochuplamood", "label": "GPE", "start_char": 8302, "end_char": 8314, "source": "ner", "metadata": {"in_sentence": "For Cashew Products Corporation Ltd., For General Agencies Ltd;\n\nSd/- Managing Director, Managing Agents\n\nE Sd/-\n\nSchedule of goods referred to in the foregoing instrument, Stocks of cashewnuts, cashew kernels, tin plates, Hoop Iron and other packing materials stored and or to be stored in the factories at Kochuplamood, Chathanoor, Ithikara, Kythakuzhi, Paripalli, Palayamkunnu and anyother factories in which we may."}}, {"text": "Chathanoor", "label": "GPE", "start_char": 8316, "end_char": 8326, "source": "ner", "metadata": {"in_sentence": "For Cashew Products Corporation Ltd., For General Agencies Ltd;\n\nSd/- Managing Director, Managing Agents\n\nE Sd/-\n\nSchedule of goods referred to in the foregoing instrument, Stocks of cashewnuts, cashew kernels, tin plates, Hoop Iron and other packing materials stored and or to be stored in the factories at Kochuplamood, Chathanoor, Ithikara, Kythakuzhi, Paripalli, Palayamkunnu and anyother factories in which we may."}}, {"text": "Ithikara", "label": "GPE", "start_char": 8328, "end_char": 8336, "source": "ner", "metadata": {"in_sentence": "For Cashew Products Corporation Ltd., For General Agencies Ltd;\n\nSd/- Managing Director, Managing Agents\n\nE Sd/-\n\nSchedule of goods referred to in the foregoing instrument, Stocks of cashewnuts, cashew kernels, tin plates, Hoop Iron and other packing materials stored and or to be stored in the factories at Kochuplamood, Chathanoor, Ithikara, Kythakuzhi, Paripalli, Palayamkunnu and anyother factories in which we may."}}, {"text": "Kythakuzhi", "label": "GPE", "start_char": 8338, "end_char": 8348, "source": "ner", "metadata": {"in_sentence": "For Cashew Products Corporation Ltd., For General Agencies Ltd;\n\nSd/- Managing Director, Managing Agents\n\nE Sd/-\n\nSchedule of goods referred to in the foregoing instrument, Stocks of cashewnuts, cashew kernels, tin plates, Hoop Iron and other packing materials stored and or to be stored in the factories at Kochuplamood, Chathanoor, Ithikara, Kythakuzhi, Paripalli, Palayamkunnu and anyother factories in which we may."}}, {"text": "Paripalli", "label": "GPE", "start_char": 8350, "end_char": 8359, "source": "ner", "metadata": {"in_sentence": "For Cashew Products Corporation Ltd., For General Agencies Ltd;\n\nSd/- Managing Director, Managing Agents\n\nE Sd/-\n\nSchedule of goods referred to in the foregoing instrument, Stocks of cashewnuts, cashew kernels, tin plates, Hoop Iron and other packing materials stored and or to be stored in the factories at Kochuplamood, Chathanoor, Ithikara, Kythakuzhi, Paripalli, Palayamkunnu and anyother factories in which we may."}}, {"text": "Palayamkunnu", "label": "GPE", "start_char": 8361, "end_char": 8373, "source": "ner", "metadata": {"in_sentence": "For Cashew Products Corporation Ltd., For General Agencies Ltd;\n\nSd/- Managing Director, Managing Agents\n\nE Sd/-\n\nSchedule of goods referred to in the foregoing instrument, Stocks of cashewnuts, cashew kernels, tin plates, Hoop Iron and other packing materials stored and or to be stored in the factories at Kochuplamood, Chathanoor, Ithikara, Kythakuzhi, Paripalli, Palayamkunnu and anyother factories in which we may."}}, {"text": "Cochin", "label": "GPE", "start_char": 8450, "end_char": 8456, "source": "ner", "metadata": {"in_sentence": "be storing from time to time and at Cochin awaiting shipment."}}, {"text": "December 21, 1949", "label": "DATE", "start_char": 8699, "end_char": 8716, "source": "ner", "metadata": {"in_sentence": "I. On December 21, 1949, the three documents-Ex."}}, {"text": "January 1, 1950", "label": "DATE", "start_char": 8808, "end_char": 8823, "source": "ner", "metadata": {"in_sentence": "C, D and F. On January 1, 1950 a sum of Rs."}}, {"text": "April 26. 1950", "label": "DATE", "start_char": 9041, "end_char": 9055, "source": "ner", "metadata": {"in_sentence": "L was sent by the plaintiff-bank on April 26."}}, {"text": "September 8, 1950", "label": "DATE", "start_char": 9060, "end_char": 9077, "source": "ner", "metadata": {"in_sentence": "On September 8, 1950 the plaintiff."}}, {"text": "High Court of Kerala", "label": "COURT", "start_char": 11128, "end_char": 11148, "source": "ner", "metadata": {"in_sentence": "3 presented an appeal in the High Court of Kerala under A. S. 561 of 1961."}}, {"text": "S. 561", "label": "PROVISION", "start_char": 11158, "end_char": 11164, "source": "regex", "metadata": {"statute": null}}, {"text": "July 18, 1962", "label": "DATE", "start_char": 11770, "end_char": 11783, "source": "ner", "metadata": {"in_sentence": "G Thereupon the learned Judges of the High Court wrote a supplementary judgment on July 18, 1962 rejecting the further arguments addressed on behalf of the appellant."}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 12072, "end_char": 12077, "source": "ner", "metadata": {"in_sentence": "It was H argued by Mr. Desai on behalf of the appellant that the High Court has misconstrued the contents of Exs."}}, {"text": "XAMYALARV. C1'NTltAL BANK", "label": "ORG", "start_char": 12524, "end_char": 12549, "source": "ner", "metadata": {"in_sentence": "A, B and G executed between the parties on the same day and the legal effect of the documents was to confer on the 3rd defendant the status of a surety and not of a\n\ns. c. XAMYALARV."}}, {"text": "Central Bank of India Ltd.", "label": "ORG", "start_char": 12820, "end_char": 12846, "source": "ner", "metadata": {"in_sentence": "B all the three defen dants have \"jointly and severally promised to pay the Central Bank of India Ltd. or order a sum of Rs."}}, {"text": "Moulton", "label": "JUDGE", "start_char": 13582, "end_char": 13589, "source": "ner", "metadata": {"in_sentence": "In Manks v. Whiteley,(') Moulton, L. J. stated:\n\n\"Where several qeeds form part of one transaction and are contemporaneously executed they have the same effect for all purposes such as are relevant to this case as if they were one deed."}}, {"text": "Quilon", "label": "GPE", "start_char": 14794, "end_char": 14800, "source": "ner", "metadata": {"in_sentence": "4 lakhs at the request of the Cashew Products Corporation Ltd., Quilon."}}, {"text": "December 17, 1947", "label": "DATE", "start_char": 15959, "end_char": 15976, "source": "ner", "metadata": {"in_sentence": "AF dated November 27, 1947, AM dated December 17, 1947 in which the Chief Agent of the plaintiff-bank has addressed defendant No."}}, {"text": "December 28, 1947", "label": "DATE", "start_char": 16145, "end_char": 16162, "source": "ner", "metadata": {"in_sentence": "CE dated December 28, 1947, CG dated January 13, 1948, AS dated February 23, 1949, V dated October 21, 1949, III dated December 16, 1949, IV dated January 12, 1950 and 'O' dated March 29, 1950 in which defendant No."}}, {"text": "January 13, 1948", "label": "DATE", "start_char": 16173, "end_char": 16189, "source": "ner", "metadata": {"in_sentence": "CE dated December 28, 1947, CG dated January 13, 1948, AS dated February 23, 1949, V dated October 21, 1949, III dated December 16, 1949, IV dated January 12, 1950 and 'O' dated March 29, 1950 in which defendant No."}}, {"text": "February 23, 1949", "label": "DATE", "start_char": 16200, "end_char": 16217, "source": "ner", "metadata": {"in_sentence": "CE dated December 28, 1947, CG dated January 13, 1948, AS dated February 23, 1949, V dated October 21, 1949, III dated December 16, 1949, IV dated January 12, 1950 and 'O' dated March 29, 1950 in which defendant No."}}, {"text": "October 21, 1949", "label": "DATE", "start_char": 16227, "end_char": 16243, "source": "ner", "metadata": {"in_sentence": "CE dated December 28, 1947, CG dated January 13, 1948, AS dated February 23, 1949, V dated October 21, 1949, III dated December 16, 1949, IV dated January 12, 1950 and 'O' dated March 29, 1950 in which defendant No."}}, {"text": "December 16, 1949", "label": "DATE", "start_char": 16255, "end_char": 16272, "source": "ner", "metadata": {"in_sentence": "CE dated December 28, 1947, CG dated January 13, 1948, AS dated February 23, 1949, V dated October 21, 1949, III dated December 16, 1949, IV dated January 12, 1950 and 'O' dated March 29, 1950 in which defendant No."}}, {"text": "January 12, 1950", "label": "DATE", "start_char": 16283, "end_char": 16299, "source": "ner", "metadata": {"in_sentence": "CE dated December 28, 1947, CG dated January 13, 1948, AS dated February 23, 1949, V dated October 21, 1949, III dated December 16, 1949, IV dated January 12, 1950 and 'O' dated March 29, 1950 in which defendant No."}}, {"text": "March 29, 1950", "label": "DATE", "start_char": 16314, "end_char": 16328, "source": "ner", "metadata": {"in_sentence": "CE dated December 28, 1947, CG dated January 13, 1948, AS dated February 23, 1949, V dated October 21, 1949, III dated December 16, 1949, IV dated January 12, 1950 and 'O' dated March 29, 1950 in which defendant No."}}, {"text": "Pathak", "label": "RESPONDENT", "start_char": 16696, "end_char": 16702, "source": "ner", "metadata": {"in_sentence": "1 Mr. Pathak stressed the argument that there is no contract of suretyship in the present case in terms of s. 126 of the Contract Act and the plaintiff-bank is not, legally bound to treat the 3rd defendant merely in the character of a surety.", "canonical_name": "Pathak"}}, {"text": "s. 126", "label": "PROVISION", "start_char": 16797, "end_char": 16803, "source": "regex", "metadata": {"statute": null}}, {"text": "Pathak", "label": "RESPONDENT", "start_char": 16937, "end_char": 16943, "source": "ner", "metadata": {"in_sentence": "Mr. Pathak relied upon the decision of the Madras High Court in Vyravan Chettiar v. Official Assignee of Madras(') in which it is pointed out that persons who are jointly and severally liable on promissory notes are not sureties under s. 126 of the Contract Aci, nor do such persons occupy a position analogous to that of a surety strictly so called to attract the provisions of s. 141 of the Contract Act.", "canonical_name": "Pathak"}}, {"text": "Madras High Court", "label": "COURT", "start_char": 16976, "end_char": 16993, "source": "ner", "metadata": {"in_sentence": "Mr. Pathak relied upon the decision of the Madras High Court in Vyravan Chettiar v. Official Assignee of Madras(') in which it is pointed out that persons who are jointly and severally liable on promissory notes are not sureties under s. 126 of the Contract Aci, nor do such persons occupy a position analogous to that of a surety strictly so called to attract the provisions of s. 141 of the Contract Act."}}, {"text": "s. 126", "label": "PROVISION", "start_char": 17168, "end_char": 17174, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 141", "label": "PROVISION", "start_char": 17312, "end_char": 17318, "source": "regex", "metadata": {"statute": null}}, {"text": "Selbourne", "label": "OTHER_PERSON", "start_char": 17483, "end_char": 17492, "source": "ner", "metadata": {"in_sentence": "Reference was made, in this connection, to the deciSion of the House of Lords in Duncan Fox & Co. v. North & South Wales Bank(') in which Lord Selbourne, L. C. distinguished between three kinds of cases; ( l) those in which there is an agreement to constitute, for a particular purpose, the relation of principal and surety, to which agreement the creditor thereby secured is a party; (2) those in which there is a similar agreement between the principal and surety only, to which the creditor, is a stranger, and (3) those in which, without any such contract of suretyship, there is a primary and a secondary liability of two persons for one and the same debt, the debt being as between the two that of one of those persons only, and not equally of both, so that the other if he should be compelled to pay it, would be entitled to reimbursement from the persons by whom (as between the two) it ought to have been pa!d."}}, {"text": "Ch", "label": "OTHER_PERSON", "start_char": 18298, "end_char": 18300, "source": "ner", "metadata": {"in_sentence": "It is pointed out by the learned Lord Ch, ancellor that in all these kinds of cases the person who discharged the liability due to the creditor, would be entitled to the benefit of the security held by the creditor though a case of surety ship strictly speaking would."}}, {"text": "s. 132", "label": "PROVISION", "start_char": 19587, "end_char": 19593, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 126", "label": "PROVISION", "start_char": 19805, "end_char": 19811, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 132", "label": "PROVISION", "start_char": 19933, "end_char": 19939, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 126", "label": "PROVISION", "start_char": 20711, "end_char": 20717, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 92", "label": "PROVISION", "start_char": 21181, "end_char": 21186, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 92", "label": "PROVISION", "start_char": 21398, "end_char": 21403, "source": "regex", "metadata": {"statute": null}}, {"text": "April 26, 1950", "label": "DATE", "start_char": 23092, "end_char": 23106, "source": "ner", "metadata": {"in_sentence": "L dated April 26, 1950 but in neither of these not\\ces has the plaintiff referred to the promissory' note executed by the defendants or that the suit was based upon the promissory note."}}, {"text": "Ilamaswmn.i", "label": "JUDGE", "start_char": 25178, "end_char": 25189, "source": "ner", "metadata": {"in_sentence": "It was further alleged that the plaintiff-bank had granted loans to the 1st defendant against goods covered by open loan agreement and that it had converted\n\nS, o. KARAYALAR i. CENTRAL l3AN!t (Ilamaswmn.i, J.) 32 7\n\nsecured Joans into simple loans by releasing goods covered by the Bills of Lading against trust receipts and had thereby deliberately frittered away such securit'es."}}, {"text": "July 12, 1962", "label": "DATE", "start_char": 25941, "end_char": 25954, "source": "ner", "metadata": {"in_sentence": "In this connection, it is necessary to point out that after the High Court delivered its judgment on July 12, 1962, an application was made by the learned Advocate appearing for the appellant that some grounds which had been urged by him before the High Court had not been considered by it The High Court, threfore, adopted the somewhat unusual course of del'vering a supplemental judgment."}}, {"text": "S. 561", "label": "PROVISION", "start_char": 28807, "end_char": 28813, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_329_334_EN", "year": 1965, "text": "INDRA KUMAR KARNANI\n\nATUL CHANDRA PATITUNDI AND ANR.\n\nMarch 10, 1965\n\n[P. B. GAJENDRAGADKAR, C. J., M. HIDAYATULLAH AND\n\nV. RAMASWAMI, JJ.] West Bengal Premises Rent Control (Temporary Provi.sions) Act, 1950 (West Bengal Act 17 of 1050) ss. 12(1)(c), 13-Sub-letting- Permission, when necessary-Rights of sub-tenants in violation of agreement-If saved.\n\nRe3pondent No. 2 was a monthly tenant of the appellant on a condition that he would not sublet the premises of any portion thereof. Under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 the appellant filed a suit against respondent No. 2 for his eviction on the ground that the tenancy had been determined on account of default in payment of rent. While the suit was pending, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 came into force. The suit was decreed and the appellant took out execution proceedings. The suit was resisted by respondent No. 1 who alleged that he had taken subtenancy from respondent No. 2. Respondent No. 1 also filed a suit impleading the appellant and respondent No. 2 and prayed for a\n\ndeolartion that on the termination of the tenancy of respondent No. 2, respondent No. 1 became a direct tenant of the appellant under s. 13(2) of the 1950 Act and he was not liable to be evicted in the execution case. The suit was decreed by the trial court, which was affirmed by the appellate courts. In appeal by special leave: HELD: The appeal must be dismissed. [334 Fl In the case of sut-letting by a tenant of the first degree no consent of the landlord to sub-letting is required as a condition precedent for acquisition by the sub-lessee of the tenant's rights, but in the case of sub-letting by a tenant inferior to the tenant of the first degree the consent of the landlord and also of the tenant of the superior degree above him to the sub-letting is necessary if the sub-lessee is to acquire the rights of the tenant contemplated by s. 13(2). [332 HJ .\n\nThe clause \"and the sub-lease is binding on the landlord of such last mentioned tenant\" in s. 13(2) does not govern both classes of\n\ntenancis. namelv, sub-tenancies created by \"tenant of first deee\"\n\nand also by \"a tenant inferior to the tenant of the first degree' as defined in s. 13(1). [333 Bl\n\nIt is not correct to say that the rights mentioned in s. 13(2) are conferred upon the sub-lessee only in a case where sutletting is not in violation of the agreement of lease. The right of. sub-ten\":nt even in a case in which the landlord has brought a smt foll ev1e>- tion against the tenant under s. 12(1)(c) are saved and the righ'.s\n\nand obligations of sub-tenants, would be governed by the provisions of s. 13. [334 A]\n\nIn Enacting s. 13 of the Act the legislature has deliberately enlarged the class of sub-tenants to be prot_ected frm evi.ction by the land'ords and the language of the sect10n dealing w•th the. sublesso2s has been deliberatelv changed and nroper effect and mterpretation must be given to the language of the new secion, [334 El\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 125 of A 1963.\n\nAppeal by special leave from the judgment and decree dated June 2, 1959 of the Calcutta High Court in Appeal from Appellate Decree No. 536 of 1964.\n\nS. Murthy and B. P. Maheshwari, for the appellant. M. C.\n\nB Chakraborthy and R. Gopalakrishnan, for respondent No. 1.\n\nThe Judgment of the Court was delivered by Ramaswami, ; r. The sole question for determination in this appeal is whether respondent No. 2-Atul Chandra Patitundi is protected from being evicted by the landlord from the premises c No. 90A, Harish Mukerjee Road situated in Bhawanipur, District 24-Parganas in view of the provisions enacted in s. 13(2) of the West Bengal Premises Rent Control (Temporary Provisions) Act,\n\n1950 (West Bengal Act XVII of 1950), hereinafter called the 1950 Act.\n\nSome time before 1948, respondent No. 2 was inducted as a n monthly tenant under Rai Sahib Chandan Mal Inder Kumar, the predecessor-in-interest of the appellant. One of the conditions of the lease was that the tenant will not sub-let the premises or any portion thereof. As respondent No. 2 defaulted in the payment of rent the appellant made an application under s. 14 of the Calcutta Rent Ordinance. 1946 for permission to sue him for E eviction. The application was granted by the Second Additional Rent Controller on September 10, 1948. On December I, 1948, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 (West Bengal Act XXXVIII of 1948). hereinafter\n\ncalld the 1948 Act, came into force. On September 15, 1949 the appellant filed a Title Suit No. 171 of 1949 in the Court of !' the !st Subordinate Judge, Alipore, 24-Parganas against respondent No. 2 for his eviction on the ground that the tenancy had been determined on account of default in payment of rent. While the suit was pending, the 1950 Act came into force on March 31,\n\n1950. The suit was eventually decreed in favour of the appellant on February 25, 1951. The appellant took out execution proceed- G ings being Title Execution Case No. 39 of 1951 of the Court of the First Sub, Jtldge. Alipore. The suit was resisted by respondent Ne I who alleged that he had taken sub-tenancy from respondent Nci. 2. Respondent No. I also filed Title Suit No. 578 of 1951 in the Court of 4th Munsif at Alipore impleadin~ the appellant and respondent No. I and praying for a declaration that on the H termination of the tenancy of respondent No. 2, respondent No. I became a direct tenant of the appellant under s. 13(2) of the 1950\n\nAct and that he was not liable to be evicted in the execution case.\n\nThe suit was decreed in the Court of the Subordinate Judge and the decree was affirmed by the District Judge of 24-Parganas in Title Appeal No. 157 of 1953. A Second Appeal was also dismissed by the Calcutta High Court on June 2. 1959.\n\niNDRA KUMAR KARNANI v. ATUL CHAXJJRA (Ranu; swarni, J.) 331\n\nOn behalf of the appellant the argument put forward was that the sub-lease granted by respondent No. 1 in favour of respondent No. 2 was contrary to the agreement of lease and not binding upon the appellant. It was, therefore, submitted that the sub-lessee did not acquire the status of a tenant under s. 13(2) of the 1950 Act and the sub-lessee could not be deemed to be holding directly under the appellant within the meaning of that sub-section. The question at issue depends upon the proper interpretation of s. 13(2) of the 1950 Act which states:\n\n\"13. (2) Where any premises or any part thereof have been or has been sub-let by 'a tenant of the first degree' or by 'a tenant inferior to a tenant of the first degree', as defined in explanation to sub-section (!), and the sublease is binding on the landlord of such last mentioned tenant, if the tenancy of such tenant in either case is lawfully determined otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the grounds specified in clause (h) of the proviso to subsection (]) of section 12, the sub-lessee shall be deemed to be a tenant in respect of such premises or part, as the case may be, holding directly under the landlord of the tenant whose tenancy has been determined, on terms and conditions on which the sub-lessee would have held under the tenant if the tenancy of the latter had not been so determined :\n\nProvided that it shall be competent for the landlord, or any person deemed under this section to be a tenant holding directly under the landlord, to make an application to the Controller for fixing rent of the premises or part thereof in respect of which such person is so deemed to be a tenant and until the rent is fixed by the Controller on such application such person shall be liable to pay to the landlord the same rent as was payable by him in respect of the premises or part thereof, as the case may be, to the tenant before the tenancy of the tenant therein had been determined. The Controller in fixing the rent shall not determine such rent at the rate which is beyond the limit fixed by paragraph (4) of Schedule A. The rent so fixed shall be deemed to be the standard rent fixed under section 9\".\n\nSection 13(1) is also relevant in this connection and it states :\n\n\"13. (!) Notwithstanding anything contained in this Act, or in any other law for the time being in force, if a tenant inferior to the tenant of the !st degree sub-lets in whole or in part the premises let to him except with the consent of the landlord and of the tenant of a superior degree above him, such sub-lease hall not be binding\n\non~ such non-consenting landlord, or on .such non-consenting tenant.\n\nExplanation-In this subsection-\n\n(a) 'a t'.)nant of the first degree' means a tenant who does not hold under any other tenant;\n\n(b) 'a tenant inferior to the tenant of the first degree' means a tenant holding immediately or mediately\n\nunder a tenant of the first degree; B\n\n(c) ']andkrd' mears the landlord of a tenant of the first tleg1ee\".\n\nIt is r1ianifest that s. 13(1) makes a distinction between the two classes of sub-tenancies, namely, (1) sub-tenancy created by a tenant of the fast degree, and (2) sub-tenancy created by \"a tenant o inferior to the tenant of the first degree\" by which is meant a tenant holding immediately or mediately under a tenant of the first degree. So far as the second ch:ss of sub-tenancy is concerned, the sub-section ei; acts that the sub-letting will not be binding upon the landlord or on the tenant of the superior degree unless each of them h1s consented to :he transaction of sub-lease. There is D no express provision in s. 13(1) that a sub-lease of the 1st class requires previous consent of the landlord or that in the absence of such consent the sub-lease shall not be binding upon the nonconsenting landlord. Section 13(2) refers to both the classes of sub-leases - and states that if the sub-lease has been made by a tenant of the first degree, the sub-lessee shall be deemed to be a E tenant in respect of the premises demised to him if the tenancy of J such tenant is lawfully determined under the provisions of the Act otherwise than by virtue of a decree in a suit obtained by the landlord by reason of ar, y of the grounds specified in cl. (h) of the proviso to sub-section (1) of section 12. In the case of second class of sub-leases, i.e., sub-leases created by a tenant inferior to p the tenant of the 1st degree also the sub-lessee will acquire the status of a tenant as mentioned in the statute but in this -cl'ass of sub-leases the rights of the tenant are conferred on the sub-lessee only if the sub-lease is binding upon the landlord.\n\nIn enacting s. 13(1) and (2) of the 1950 Act the legislature has deliberately made a distinction between the two classes of sub-tenancies and G provided that in the case of sub-lease of the first class, namely,\n\nsub-Ieaes created by a tenant. of the first degree, the sub-lessee will acquire the status of the tenant in respect of the premises demised, thou.h the sub-lease is not binding upon the landlord according to the agreement of lease. The legislature has further , provided that in the case of sub-lease of the second ~1ass the B sub-lessee will acquire the status of a tenant of the premises only • if the sub-lease. is binding upcm the \"landlord\" as defined in s. 13(1\\. It follows that in the case of sub-letting by a tenant of the fir:t deree no consent of the landlord to sub-Jetting is required as a condition precedent for acquisition by the sub-lessee of tho tenant's right but in the case of sub-letting by a tenant inferior to the tenant of the first degree the consent of the landlord and\n\nINDRA KUMAR KARNAN! v. ATUL CHAJWRA (Ramaswami, J.) 3~3\n\nalso of the tenant of the superior degree above him to the subletting is necessary if the sub-Jessee is to aoquire the rights of the tenant contemplated by s. 13(2). It was argued on behalf of the appellant that the clause \"and the sub-lease is binding on the landlord of such last mentioned tenant\" in s. 13(2) governs both classes of tenancies, namely, sub-tenancies created by \"tenant of the first degree\" and also by \"a tenant inferior to the tenant of the first degree\" as defined in s. 13(1). We do not consider that there is any justification for this argument. Having regard to the grammatical structure and context of the clause it is obvious that it imposes a qualification only upon sub-tenancies of the second class. It was also submitted on behalf of the appellant that if a sub-lease is granted by the tenant of the first degree against the terms of. the contract of lease the landlord is entitled under s. 12(J)(c) of the 1950 Act to bring a suit for eviction of the tenant and that in such a suit the tenant and the sub-lessees are both liable to be evicted from the premises in question. It was submitted, therefore, that the rights mentioned in s. 13 (2) are conferred upon the sub-Jessee only in a case where sub-letting is not in violation of the agreement for lease. In our opinion, there is no substance in this argument. Section 12(1)(c) states:\n\n\"12. (!) Notwithstanding anything to the contrary in any other Act or law. rto order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant, including a tenant whose lease has expired :\n\nProvided that nothing in the sub-section shall apply to any suit for decree for such recovery of possession,- r ........................................................................ ..\n\n(c) against a tenant who has sub-let the whole or a\n\nmajor portion of the premises for more than seven consecutive months:\n\nProvided that if a tenant who has sub-let major portion of the premises agree to possess as a tenant the portion of the premises not sub-let on payment of rent fixed by the Court. the Court shall pass a decree for ejectment from only a portion of the premises sub-let and fix proportionately fa~ rent fo~ the portion kept in possession of such tenant, which portion shall thenceforth constitute premises under clause (8) of section 2 and the rent so fixed shall be deemed standard rent fixed under section 9 and the rights and obligations of the sub-tenants of th~ portion from which the tenant is ejected shall be the same as of sub-tenants under the provision of section 13;\".\n\nIt is manifest thats. 12(l)(c) saves the right of sub-tenants even in n case in which the landlord has brought a suit for eviction against\n\nthe tenant under s. l 2(1)(c) and the rights and obligations of subtenants would be governed by the provisions of s. 13. Counsel on .behalf of the appellant also referred to the provisions of s. 11 (3) of the 1948 Act which states:\n\n\"11.(3) Any person to whom any premises or any part thereof have been or has been lawfully sublet by a tenant shall, where the interest of the tenant in such premises or part is lawfully determined otherwise than by virtue of a decree or order obtained by the landlord on any of the grounds specified in clause (f) of the provLo to sub-section (!), be deemed to be a tenant in respect o.f such premises or part, as the case may be, holding directly under the l; tndlord on the terms and. conditions on which such person would have held under the tenant if the interest of the tenant had not been so determined:\n\n• • * . \"\n\nIt was pointed out that rights are conferred by the statute only upon sub-lessees to whom the premises have .been \"lawfully\" sublet .by a tenant. It was contended that though the 1948 Act was repealed and substituted by the 1950 Act, the provisions of s. 13(2) of the latter Act have to be construed in the context of the language of s. 11 (3) of the 1948 Act. We are unable to accept this argument as correct. It is manifest that in enacting s. 13 of 1950 Act the legislature has deliberately enlarged the class of sub-tenants to be protected from eviction by the landlords and the language of the section dealing with the sub-lessees has been deliberately changed and proper effect and interpretation must be given to the langu-· age of the new section. ·\n\nFor the reasons expressed, we hold that the suit of respondent No. l has been rightly decreed and this appeal must be dismissed with costs ..\n\nAppeal dismissed ..\n\nIi'", "total_entities": 60, "entities": [{"text": "INDRA KUMAR KARNANI", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "INDRA KUMAR KARNANI", "offset_not_found": false}}, {"text": "ATUL CHANDRA PATITUNDI AND ANR", "label": "RESPONDENT", "start_char": 21, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "ATUL CHANDRA PATITUNDI AND ANR", "offset_not_found": false}}, {"text": "March 10, 1965", "label": "DATE", "start_char": 54, "end_char": 68, "source": "ner", "metadata": {"in_sentence": "March 10, 1965\n\n[P. B. GAJENDRAGADKAR, C. J., M. HIDAYATULLAH AND\n\nV. RAMASWAMI, JJ.]"}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 71, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 100, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 121, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "West Bengal Act", "label": "STATUTE", "start_char": 209, "end_char": 224, "source": "regex", "metadata": {}}, {"text": "ss. 12(1)(c), 13", "label": "PROVISION", "start_char": 237, "end_char": 253, "source": "regex", "metadata": {"linked_statute_text": "West Bengal Act", "statute": "West Bengal Act"}}, {"text": "s. 13(2)", "label": "PROVISION", "start_char": 1250, "end_char": 1258, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13(2)", "label": "PROVISION", "start_char": 1962, "end_char": 1970, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13(2)", "label": "PROVISION", "start_char": 2074, "end_char": 2082, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13(1)", "label": "PROVISION", "start_char": 2263, "end_char": 2271, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13(2)", "label": "PROVISION", "start_char": 2336, "end_char": 2344, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12(1)(c)", "label": "PROVISION", "start_char": 2581, "end_char": 2592, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 2691, "end_char": 2696, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 2719, "end_char": 2724, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 3179, "end_char": 3198, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and decree dated June 2, 1959 of the Calcutta High Court in Appeal from Appellate Decree No."}}, {"text": "S. Murthy", "label": "LAWYER", "start_char": 3249, "end_char": 3258, "source": "ner", "metadata": {"in_sentence": "S. Murthy and B. P. Maheshwari, for the appellant."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 3263, "end_char": 3279, "source": "ner", "metadata": {"in_sentence": "S. Murthy and B. P. Maheshwari, for the appellant."}}, {"text": "C.\n\nB Chakraborthy", "label": "LAWYER", "start_char": 3303, "end_char": 3321, "source": "ner", "metadata": {"in_sentence": "M. C.\n\nB Chakraborthy and R. Gopalakrishnan, for respondent No."}}, {"text": "R. Gopalakrishnan", "label": "LAWYER", "start_char": 3326, "end_char": 3343, "source": "ner", "metadata": {"in_sentence": "M. C.\n\nB Chakraborthy and R. Gopalakrishnan, for respondent No."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 3411, "end_char": 3420, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Ramaswami, ; r. The sole question for determination in this appeal is whether respondent No."}}, {"text": "Atul Chandra Patitundi", "label": "RESPONDENT", "start_char": 3506, "end_char": 3528, "source": "ner", "metadata": {"in_sentence": "2-Atul Chandra Patitundi is protected from being evicted by the landlord from the premises c No.", "canonical_name": "ATUL CHANDRA PATITUNDI AND ANR"}}, {"text": "s. 13(2)", "label": "PROVISION", "start_char": 3709, "end_char": 3717, "source": "regex", "metadata": {"statute": null}}, {"text": "West Bengal Act", "label": "STATUTE", "start_char": 3794, "end_char": 3809, "source": "regex", "metadata": {}}, {"text": "Rai Sahib Chandan Mal Inder Kumar", "label": "OTHER_PERSON", "start_char": 3940, "end_char": 3973, "source": "ner", "metadata": {"in_sentence": "2 was inducted as a n monthly tenant under Rai Sahib Chandan Mal Inder Kumar, the predecessor-in-interest of the appellant."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 4223, "end_char": 4228, "source": "regex", "metadata": {"linked_statute_text": "West Bengal Act", "statute": "West Bengal Act"}}, {"text": "September 10, 1948", "label": "DATE", "start_char": 4380, "end_char": 4398, "source": "ner", "metadata": {"in_sentence": "The application was granted by the Second Additional Rent Controller on September 10, 1948."}}, {"text": "December I, 1948", "label": "DATE", "start_char": 4403, "end_char": 4419, "source": "ner", "metadata": {"in_sentence": "On December I, 1948, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 (West Bengal Act XXXVIII of 1948)."}}, {"text": "West Bengal Act", "label": "STATUTE", "start_char": 4493, "end_char": 4508, "source": "regex", "metadata": {}}, {"text": "September 15, 1949", "label": "DATE", "start_char": 4580, "end_char": 4598, "source": "ner", "metadata": {"in_sentence": "On September 15, 1949 the appellant filed a Title Suit No."}}, {"text": "Court of !' the !st Subordinate Judge, Alipore", "label": "COURT", "start_char": 4655, "end_char": 4701, "source": "ner", "metadata": {"in_sentence": "171 of 1949 in the Court of !'"}}, {"text": "March 31,\n\n1950", "label": "DATE", "start_char": 4910, "end_char": 4925, "source": "ner", "metadata": {"in_sentence": "While the suit was pending, the 1950 Act came into force on March 31,\n\n1950."}}, {"text": "February 25, 1951", "label": "DATE", "start_char": 4989, "end_char": 5006, "source": "ner", "metadata": {"in_sentence": "The suit was eventually decreed in favour of the appellant on February 25, 1951."}}, {"text": "s. 13(2)", "label": "PROVISION", "start_char": 5548, "end_char": 5556, "source": "regex", "metadata": {"statute": null}}, {"text": "June 2. 1959", "label": "DATE", "start_char": 5861, "end_char": 5873, "source": "ner", "metadata": {"in_sentence": "A Second Appeal was also dismissed by the Calcutta High Court on June 2."}}, {"text": "s. 13(2)", "label": "PROVISION", "start_char": 6239, "end_char": 6247, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13(2)", "label": "PROVISION", "start_char": 6450, "end_char": 6458, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 7014, "end_char": 7024, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9", "label": "PROVISION", "start_char": 8152, "end_char": 8161, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13(1)", "label": "PROVISION", "start_char": 8165, "end_char": 8178, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13(1)", "label": "PROVISION", "start_char": 9005, "end_char": 9013, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13(1)", "label": "PROVISION", "start_char": 9605, "end_char": 9613, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13(2)", "label": "PROVISION", "start_char": 9797, "end_char": 9810, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 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"metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 14071, "end_char": 14080, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9", "label": "PROVISION", "start_char": 14145, "end_char": 14154, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 14312, "end_char": 14322, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 14581, "end_char": 14586, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 14659, "end_char": 14664, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13(2)", "label": "PROVISION", "start_char": 15575, "end_char": 15583, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 15657, "end_char": 15662, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": 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{"document_id": "1965_3_335_340_EN", "year": 1965, "text": "KARPAGATHACID AND ORS.\n\nNAGARATHINATHACID March 10, 1965\n\n[K. SUBBA RAO, J.C. SHAH AND R. S. BACHAWAT, JJ.] Hindu Law-Partition between co-widows-Whether right of survivorship can be relinquished-If repugnant to Transfer of Pro• perty Act, 1882 (4 of 1882) s. 6(a)-Onus.\n\nTwo co-widows divided their husband's property and each entered into separate possession of her share. On the death of one of the widows her daughter the respondent took possession of her mother's share. The appellant the surviving widow filed a suit against '.he respondent claiming possEssion of that share. The Trial Court decreed the suit, which on appeal was set aside by the High Court. In appeal by certificate:\n\nHELD: (i) Under the Hindu Law the widows were competent to partition the properties and allot separate portions each, and incidental to such allotment each could agree to relinquish her right of survivorship in the portion allotted to the other. Such an arrangement was not repugnant to s. 6(a) of the Transfer of Property Act,\n\n1882. [337 C-D].\n\nCase law referred to.\n\n(ii) Mere partition of the estate between the two widows does not destroy the right of survivorship of each to the properties allotted to the other. The party who asserts that there was an arrangement by which the widows agreed to relinquish the right of survivorship must establish this arrangement by clear and cogent evidence.\n\n[338 B].\n\nThe respondent, in the instant case, had failed to discharge this onus. [338 B-C].\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 998 of F 1963.\n\nAppeal from the judgment and decree dated January 12. 1962 of the Madras High Court in Appeal Suit No. 292 of 1958.\n\nA. V. Viswanatlza Sastri, V. S. Ramaswami Iyengar and R. Thiagarajan, for the appellants.\n\nG S. V. Gupte, Solicitor General, and R. Ganapathy Iyer, for the respondent.\n\nThe Judgment of the Court was delivered by- Bachawat, J. One Sivasubramania Pillai died in the year 1924 leaving him surv; ving his mother, two widows, Thialaiachi H and Karpagathachi, and a daughter. Nagarathinathachi (respondent herein) born of Thialaiachi. The two widows inherited the properties left by Sivasubramania. In July 1927. they divided the bltlk of the properties and each entered into separate pos, ession and enjoyment of the properties allotted to her. The partition is evidenced by two partition lists called parti.tion deeds. Exs A-~ I\n\nand B-45 dated July 14. 1927 and signed by both of them. Under this partition, two ve/is of land were set apart for the maintcnanC'\n\nf Sivasubramania's mother, to be enjoyed by her during her life.\n\nA tune, and on her death, to be taken and enjoyed by the two widows in separate portions as mentioned in the partition lists. On August 26, 1954, Thialaiachi died, and upon her death, the respondent took possession of the properties allotted to Thialaiachi under the partition of July, 1927. On December 8, 1954, Karpagathachi in stituted against the respondent the suit, out of which this appeal B arises, claiming possession of the suit propert'es. The respondent resisted the suit claiming that under the partition each widow gave up her right of survivorship in respect of the properties allotted to the other, and consequently on the death of Th'alaiachi, the respondent as her daughter was entitle\\! to take her share as her heir and to en joy the same during the life of Karpagathachi. By his C judgment dated AJgust 18, 1958, the District Judge, East Thanjavur, rejected the defendant's contention. and held that the division between the two w'dows was for convenience of enjoyment only, and decreed the suit in respect of the properties held by Thialaiachi under the partition of July, 1927.\n\nOn appeal, the Madras High Court by its judgment dated January, 12, 1962 held D that under the partition each widow gave up her life interest in the properties allotted to the other and 'consequently Karpagathachi was not entitled to recover possession of the properties allotted to Thialaiachi, set aside the decree of the District Judge, and dismissed the suit. Karpagathachi and several other persons impleaded as party respondents in the appeal before the High Court now appeal E under a certificate granted by the High Court to .this court under Art. 133 of the Constitution.\n\nMr. Viswanatha Sastry appearing on behalf of the appellants contends that: (!) the right of survivorship of each widow in respect of her husband's estate is the chance of the surviving widow to take the entire estate of her husband on the death of the cowidow, and in view of s.6(a) of the Transfer of Property Act, 1882, the w'dows were not competent to enter into an arrangement transferring or relinquishing their right of survivorship; (2) the partition lists, Exs. A-I and B-45 not being registered, are not admissible in evidence; (3) the partit'on between the widows was for con venience of enjoyment only, and the respondent has failed to establish that each co-widow gwe up her right of survivorship in respect of the properties allotted to the other. The learned Solicitor-General appearing on behalf of the respondent disputed these contentions.\n\nWe are of op'nion that the first contention of Mr. Viswanatha Sastry should be rejected. Under the Hindu law as it stood in 1924, two widows inheriting their husband's properties took together one estate as joint tenants with rights of survivorship and equal benefi cial enjoyment. They were entitled to enforce a partition of those propert'es so that each could sep3rately possess and enjoy the portion allotted to her, see Bhugwan Deen Doobey v. Myna Baee ('),\n\n(') [1867] ll M.I.A. 487\n\nILARPAGATIIACHI v. NAflARATIIINA'l'RACl!I (Bachawat, J.) 337\n\nGawi Nath Kakaji v. Gaya Kuar('). Neither of them could without the consent of the other enforce an absolute partition of the estate so as to destroy the right of , survivorship, see Commissicner\n\nof Income-tax v. Smt. Indira Balakrishna('). But by mutual consent they could enter into any ar; angement regarding their respective rights in the properties during the continuance of the widow's estate, and could absolutely divide the properties, so as lo preclude the right of survivorship of each lo the prn tion ailotted to the\n\nother. See Ramakkal v. Ramasami Nm'ckan('); Sudalai Ammal v.\n\nGomathi Amma/('). Likewise, two dau:<hters suceedirn• to their ,, father's estate as joint tenants with r'.ghts of survivorship could enter into a similar arrangeme; it. See Kailash Chandi'a Chuckerbutty v. Kashi Chandra Chutkerbuffy(') Subbammal v . . Lakshmana Iyer ('), Ammani Am ma/ v. Per; asami U dayan('). Such an arrangement was not repugnant to s.6fa) of the Transfer of Proper'y Act, 1882. 'f.he interest of eac~1 widow in the properties inherited by her was proputy, and this prC1perty together with the incidental right of survivorsliip could )le law!Qlly transferred. Section 6(a) of the Transfer of Property Ad' pl'l>hibits the transfer of the bare chance of the surviving widow 'tPk.ingi'tie entire estate as th~ ne.>.t heir of her husband on the dea, tll of1he co-widow, but it does not prohibit the transfer by the w1dow ofher present interest in the properties inherited 'by her together with the incidental right of survivorship. The widows were competent to partition the properties and allot separnte portionS'i:l> eacb. and incidental to S11ch an allotment, each could a\"ree to inquisli her right of survivorship in the portion allotted to the otlier. The first contention (}f Mr.\n\nViswanatha Sastry must be rejected.\n\nThe secon:i contention of , Mr Vhwanatha Sr\"try mu t also be rejected. A partition may ht effected ora!:y. By an oral partition, the two widows could adjust their diverse rights in the entire estate, and as part uf.tl1is arrangement, each could orally ag:ee to relinquish her right of survivmship to the portion aiiotted :o the other. In the trial Court, the suit wc; S t\"ried on the footing that the partition was oral. and that the two partilion lists wern mere'y pieces of evidence of the oral partition, and no objection was raised with regard to their admissibility in eyidence. In th\\'!_ High Court, the. appellants raised the contention fiJ.f i.he first time that tte two partition lists were required to be registered. The point could not be decided without further inverrigatiot) into questions of fact, ar.d in the circumstances, the High Court r)ghtly ruled that this new contention could not be raised for the 'first -time in appeal. We\n\n(') [1928] L.R. 5.5 I.A. 299.\n\n(') [1960] 3 S.C.R. 513, 517. (') [1899) I.L. ll .. 22 Macl. 522. (') [1912] 23 M.L.J. 3fi5. (') [I 897] I.L.R. 24 Cal. 33~.\n\n(') [1914] 26 M.L.J. 479.\n\n(') [1923] 45 M.L.J. I.\n\n338 'SuPREME COURT REPORTS\n\n(1965] 3 S.C.R,\n\nthink that the appellants ought not to be allowed to raise this new contention.\n\nWe think that the third contention of Mr. Viswanatha Sastry is sound and should be accepted. Mere partition of the estate between the two widows does not destroy the right of survivorsh'p of each to the properties allotted to the other. The party who asserts that there was an arrangement by which the widows agreed to relinquish the right of survivorship must establish this arrangement by clear and cogent evidence. The respondent has failed to discharge this onus. It is common case that the part'iion is evidenced by Exs. A-1 and B--45. Exhibit B-45 is the list showing the properties allotted to Thialaiachi. The relevant portion of Ex.\n\nB-45 reads : -\n\n\"In accordance with the chit cast. Theiyalai Achi, wife of S'vasubramania Pillai, residing at Karuppur, shall take the nanja, punja. house and ground, cattle-shed, cattle, pathway for men, cattle and cart and shed where dried dung cakes are stored mentioned in the list and shall pay the Government kist for the aforesaid properties from the current fasli 1337 and enjoy them.\" Exhibit A-1 showing the properties allotted to Karpagathachi contains similar words. Now the two lists show that each widow is to \"take .and enjoy\" the properties allotted to her. The corresponding Tamil words are \"adainthu anubavithu.\" These words do not either expressly or by necessary intendment exclude the right of survivorship of the other widow. the Tamil words \"Sarva Swantantra Badyamayum\" and \"Sant hat hi pravesamoyurn\" and bther words indicating relinquishment of the right of survivorship are conspicuous by their absence. The words used in the two partition lists are wholly insufficient to show that the two widows relinquished their right of survivorship inter se. The fact that two separate partition lists were drawn up and each was signed by the two widows does not carry the matter any further. The two partition lists show that the two velis of land kept separately for the maintenance of the mother-in-law were to be divided by metes and bounds on her death between the two widows. The division of the two velis on the death of the mother-in-law was agreed upon to avoid future disputes. The fact that Thialaia{; hi had a daughter and was older than Karpagathachi by 20 years does not show that Karpagathachi mush have agreed that Thialaiachi's daughter should enjoy th.e properties allotted to Thialaiachi after her deat_h. After the yartition, the pattas in respect of all the lands contmued to be m th~\n\njoint names of both the widows. If there. was an absolute par!Ition between the two widows, it is not explained why there was no separate mutation in the name of each widow in respect of the lands allotted to her.\n\nThe deeds executed by Thialaiachi, Exs. B-3. B-4. B-6, B-7 and B-8 to B-43 rec'te the partition, but !ey do not use words indicating that there was an absolute part1110n. The sale\n\nIURPAGATIIACHI v. NAGARATHINATHACHI (Bachawat, J.) 339\n\ndeeds, Exs. A-3, A-4, and A---6 executed by both the widows are in respect of undivided properties and throw no light on the question at issue. The evidence on the record does not show clearly whether the sale deed, Ex. B--44, executed by both the widows relates to undivided properties, or whether it relates to properties as separately allotted to Thialaiachi. From time to time, Thialaiachi executed three wills, Exs. B-1, B-2 and A-5 giving to the legatees and particularly the respondent certain properties absolutely with full powers of aEenation. The first two wills, Exs. B-1 and B-2, refer separately to Thialaiachi's separate properties and to the properties obtained by her on partition. The recitals in the two wills do not indicate that Thialaiachi obtained her husband's properties on partition with absolute rights. The third will, Ex. A-5, does not purport to dispose of specifically the properties obtained by her on part; tion. Karpagathachi knew that Thialaiachi had iexecuted the wills, but it is not shown that she knew of the contents of the wills. By Ex. A-2, both Thialaiachi and Karpagathachi made a free gift of some of the properties allotted to Thialaiachi. D.W. 1 is unable to explain why Thiala; achi joined in this deed. By sale deed, Ex. B-5, Thialaiachi sold absolutely some of the properties allotted to her and a notice, Ex. A-22, regarding the proposed transfer of the patta in the name of the vendee was served upon Karpagathachi. It is not clear if the patta was actually transferred in the name of the vendee. The explanaton of Karpagathachi that she protested against the transfer and ultimately received one half of the sale price has not been believed. But assuming that Karpagathachi did not object to the transfer, this single circumstance does not establish that at the time of the partit'on, she had agreed to give up her right of survivorship in respect of the properties allotted to Thialaiachi.\n\nKarpagathachi <P.W. I) denied that there was an absolute partition. She was not shaken in cross-examination. Nataraja Pillai\n\n(P. W. 2) said that there was no talk that each should take the properties absolutely and it was agreed taht each would enjoy separately. We find nothing in the evidence of P.W. 2 to show that the a widows agreed to partition the properties absolutely so as to destroy the right of survivorship. Manickam Pillai (D.W. I) said that at the time of the partition, Thialaiachi said that she had a daughter and if what was allotted for her share was given to her ab, solutely she would agree to the partition and Karpagathachi also wanted to have absolute rights. The District Judge rightly rejected H evidence of D.W. I. The partition lists were drawn up after consulting lawyers. D.W. 1 is unable to explain why words indicating absolute partition were not used in the partition lists. D.W. 1 had been in management of the properties of the respondent, yet he falsely denied this fact. He had intimate dealings with Thialaiachi and the respondent. On a meticulous examination of the oral and documentary evidence, the learned District Judge rejected the respondent's case that the widows had orally agreed to relinqu; sh their\n\nL/B(N)3SCI-9\n\nright of survivorship. We think that this finding is correct, and the High Court was in error in reversing this finding.\n\nIn the result, the appeal is allowed, the decree and judgment passed by the High Court are set as'de and those of the trial Judge restored. In all the circumstances, we direct that the parties will pay and bear their own costs throughout, in this Court and also in the Courts below. ·\n\nAppeal allowed.", "total_entities": 47, "entities": [{"text": "KARPAGATHACID AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "KARPAGATHACID AND ORS", "offset_not_found": false}}, {"text": "NAGARATHINATHACID", "label": "RESPONDENT", "start_char": 24, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "NAGARATHINATHACID", "offset_not_found": false}}, {"text": "March 10, 1965", "label": "DATE", "start_char": 42, "end_char": 56, "source": "ner", "metadata": {"in_sentence": "NAGARATHINATHACID March 10, 1965\n\n[K. SUBBA RAO, J.C. SHAH AND R. S. BACHAWAT, JJ.]"}}, {"text": "K. SUBBA RAO, J", "label": "JUDGE", "start_char": 59, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 75, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ.", "label": "JUDGE", "start_char": 87, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "s. 6(a)", "label": "PROVISION", "start_char": 257, "end_char": 264, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6(a)", "label": "PROVISION", "start_char": 979, "end_char": 986, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 994, "end_char": 1018, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "A. V. Viswanatlza Sastri", "label": "OTHER_PERSON", "start_char": 1667, "end_char": 1691, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatlza Sastri, V. S. Ramaswami Iyengar and R. Thiagarajan, for the appellants."}}, {"text": "V. S. Ramaswami Iyengar", "label": "LAWYER", "start_char": 1693, "end_char": 1716, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatlza Sastri, V. S. Ramaswami Iyengar and R. Thiagarajan, for the appellants."}}, {"text": "R. Thiagarajan", "label": "LAWYER", "start_char": 1721, "end_char": 1735, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatlza Sastri, V. S. Ramaswami Iyengar and R. Thiagarajan, for the appellants."}}, {"text": "G S. V. Gupte", "label": "LAWYER", "start_char": 1758, "end_char": 1771, "source": "ner", "metadata": {"in_sentence": "G S. V. Gupte, Solicitor General, and R. Ganapathy Iyer, for the respondent."}}, {"text": "R. Ganapathy Iyer", "label": "LAWYER", "start_char": 1796, "end_char": 1813, "source": "ner", "metadata": {"in_sentence": "G S. V. Gupte, Solicitor General, and R. Ganapathy Iyer, for the respondent."}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 1880, "end_char": 1888, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by- Bachawat, J. One Sivasubramania Pillai died in the year 1924 leaving him surv; ving his mother, two widows, Thialaiachi H and Karpagathachi, and a daughter."}}, {"text": "Sivasubramania Pillai", "label": "JUDGE", "start_char": 1897, "end_char": 1918, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by- Bachawat, J. One Sivasubramania Pillai died in the year 1924 leaving him surv; ving his mother, two widows, Thialaiachi H and Karpagathachi, and a daughter.", "canonical_name": "Sivasubramania Pillai"}}, {"text": "Karpagathachi", "label": "PETITIONER", "start_char": 2006, "end_char": 2019, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by- Bachawat, J. One Sivasubramania Pillai died in the year 1924 leaving him surv; ving his mother, two widows, Thialaiachi H and Karpagathachi, and a daughter.", "canonical_name": "Karpagathachi"}}, {"text": "Nagarathinathachi", "label": "RESPONDENT", "start_char": 2037, "end_char": 2054, "source": "ner", "metadata": {"in_sentence": "Nagarathinathachi (respondent herein) born of Thialaiachi.", "canonical_name": "NAGARATHINATHACID"}}, {"text": "Sivasubramania", "label": "JUDGE", "start_char": 2144, "end_char": 2158, "source": "ner", "metadata": {"in_sentence": "The two widows inherited the properties left by Sivasubramania.", "canonical_name": "Sivasubramania Pillai"}}, {"text": "July 14. 1927", "label": "DATE", "start_char": 2408, "end_char": 2421, "source": "ner", "metadata": {"in_sentence": "Exs A-~ I\n\nand B-45 dated July 14."}}, {"text": "August 26, 1954", "label": "DATE", "start_char": 2721, "end_char": 2736, "source": "ner", "metadata": {"in_sentence": "On August 26, 1954, Thialaiachi died, and upon her death, the respondent took possession of the properties allotted to Thialaiachi under the partition of July, 1927."}}, {"text": "Thialaiachi", "label": "OTHER_PERSON", "start_char": 2738, "end_char": 2749, "source": "ner", "metadata": {"in_sentence": "On August 26, 1954, Thialaiachi died, and upon her death, the respondent took possession of the properties allotted to Thialaiachi under the partition of July, 1927.", "canonical_name": "Theiyalai Achi"}}, {"text": "December 8, 1954", "label": "DATE", "start_char": 2887, "end_char": 2903, "source": "ner", "metadata": {"in_sentence": "On December 8, 1954, Karpagathachi in stituted against the respondent the suit, out of which this appeal B arises, claiming possession of the suit propert'es."}}, {"text": "Th'alaiachi", "label": "OTHER_PERSON", "start_char": 3240, "end_char": 3251, "source": "ner", "metadata": {"in_sentence": "The respondent resisted the suit claiming that under the partition each widow gave up her right of survivorship in respect of the properties allotted to the other, and consequently on the death of Th'alaiachi, the respondent as her daughter was entitle\\!"}}, {"text": "AJgust 18, 1958", "label": "DATE", "start_char": 3409, "end_char": 3424, "source": "ner", "metadata": {"in_sentence": "By his C judgment dated AJgust 18, 1958, the District Judge, East Thanjavur, rejected the defendant's contention."}}, {"text": "District Judge, East Thanjavur", "label": "COURT", "start_char": 3430, "end_char": 3460, "source": "ner", "metadata": {"in_sentence": "By his C judgment dated AJgust 18, 1958, the District Judge, East Thanjavur, rejected the defendant's contention."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 3709, "end_char": 3726, "source": "ner", "metadata": {"in_sentence": "On appeal, the Madras High Court by its judgment dated January, 12, 1962 held D that under the partition each widow gave up her life interest in the properties allotted to the other and 'consequently Karpagathachi was not entitled to recover possession of the properties allotted to Thialaiachi, set aside the decree of the District Judge, and dismissed the suit."}}, {"text": "January, 12, 1962", "label": "DATE", "start_char": 3749, "end_char": 3766, "source": "ner", "metadata": {"in_sentence": "On appeal, the Madras High Court by its judgment dated January, 12, 1962 held D that under the partition each widow gave up her life interest in the properties allotted to the other and 'consequently Karpagathachi was not entitled to recover possession of the properties allotted to Thialaiachi, set aside the decree of the District Judge, and dismissed the suit."}}, {"text": "Karpagathachi", "label": "PETITIONER", "start_char": 4058, "end_char": 4071, "source": "ner", "metadata": {"in_sentence": "Karpagathachi and several other persons impleaded as party respondents in the appeal before the High Court now appeal E under a certificate granted by the High Court to .this court under Art.", "canonical_name": "Karpagathachi"}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 4245, "end_char": 4253, "source": "regex", "metadata": {"statute": null}}, {"text": "Viswanatha Sastry", "label": "LAWYER", "start_char": 4280, "end_char": 4297, "source": "ner", "metadata": {"in_sentence": "Mr. Viswanatha Sastry appearing on behalf of the appellants contends that: (!)", "canonical_name": "Viswanatha Sastry"}}, {"text": "s.6(a)", "label": "PROVISION", "start_char": 4552, "end_char": 4558, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act, 1882", "label": "STATUTE", "start_char": 4566, "end_char": 4596, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s.6", "label": "PROVISION", "start_char": 6632, "end_char": 6635, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6(a)", "label": "PROVISION", "start_char": 6859, "end_char": 6871, "source": "regex", "metadata": {"statute": null}}, {"text": "S11", "label": "PROVISION", "start_char": 7338, "end_char": 7341, "source": "regex", "metadata": {"statute": null}}, {"text": "Viswanatha Sastry", "label": "LAWYER", "start_char": 7482, "end_char": 7499, "source": "ner", "metadata": {"in_sentence": "The first contention (}f Mr.\n\nViswanatha Sastry must be rejected.", "canonical_name": "Viswanatha Sastry"}}, {"text": "Vhwanatha Sr\"try", "label": "LAWYER", "start_char": 7550, "end_char": 7566, "source": "ner", "metadata": {"in_sentence": "The secon:i contention of , Mr Vhwanatha Sr\"try mu t also be rejected."}}, {"text": "[1960] 3 S.C.R. 513", "label": "CASE_CITATION", "start_char": 8504, "end_char": 8523, "source": "regex", "metadata": {}}, {"text": "Theiyalai Achi", "label": "OTHER_PERSON", "start_char": 9498, "end_char": 9512, "source": "ner", "metadata": {"in_sentence": "Theiyalai Achi, wife of S'vasubramania Pillai, residing at Karuppur, shall take the nanja, punja.", "canonical_name": "Theiyalai Achi"}}, {"text": "S'vasubramania Pillai", "label": "JUDGE", "start_char": 9522, "end_char": 9543, "source": "ner", "metadata": {"in_sentence": "Theiyalai Achi, wife of S'vasubramania Pillai, residing at Karuppur, shall take the nanja, punja.", "canonical_name": "Sivasubramania Pillai"}}, {"text": "Karuppur", "label": "GPE", "start_char": 9557, "end_char": 9565, "source": "ner", "metadata": {"in_sentence": "Theiyalai Achi, wife of S'vasubramania Pillai, residing at Karuppur, shall take the nanja, punja."}}, {"text": "Thialaia", "label": "OTHER_PERSON", "start_char": 10966, "end_char": 10974, "source": "ner", "metadata": {"in_sentence": "The fact that Thialaia{; hi had a daughter and was older than Karpagathachi by 20 years does not show that Karpagathachi mush have agreed that Thialaiachi's daughter should enjoy th.e properties allotted to Thialaiachi after her deat_h.", "canonical_name": "Theiyalai Achi"}}, {"text": "Thiala", "label": "OTHER_PERSON", "start_char": 12941, "end_char": 12947, "source": "ner", "metadata": {"in_sentence": "D.W. 1 is unable to explain why Thiala; achi joined in this deed.", "canonical_name": "Theiyalai Achi"}}, {"text": "Karpagathachi", "label": "WITNESS", "start_char": 13668, "end_char": 13681, "source": "ner", "metadata": {"in_sentence": "Karpagathachi <P.W. I) denied that there was an absolute partition."}}, {"text": "Nataraja Pillai", "label": "WITNESS", "start_char": 13777, "end_char": 13792, "source": "ner", "metadata": {"in_sentence": "Nataraja Pillai\n\n(P. W. 2) said that there was no talk that each should take the properties absolutely and it was agreed taht each would enjoy separately."}}, {"text": "Manickam Pillai", "label": "WITNESS", "start_char": 14090, "end_char": 14105, "source": "ner", "metadata": {"in_sentence": "Manickam Pillai (D.W. I) said that at the time of the partition, Thialaiachi said that she had a daughter and if what was allotted for her share was given to her ab, solutely she would agree to the partition and Karpagathachi also wanted to have absolute rights."}}]}
{"document_id": "1965_3_341_353_EN", "year": 1965, "text": "THE CANTONMENT BOARD, AMBALA v.\n\nPYARELAL March 12, 1965\n\n[K. N. WANCHOO, J. R. MUDHOLKAR, ANDS. M. SIKRI, JJ.)\n\nCantonments Act (2 of 1924), ss. 256, 257 and 259-Scope of.\n\nIn 1954, the words \"rent on land or buildings\" were added to s. 250 of the Cantonments Act, 1924. After the amendment, the appellant (Cantonment Board), applied under the section to the concern ed Magistrate, for realisation of arrears of rent from the respondent, on the basis of a lease in his favour. The Magistrate issued warrants for attachment of the movable property of the respondent. The respondent went in revision to the Sessions Judge. He made a reference to the High Court and the High Court set aside the Magistrate's order. In its appeal to the Supreme Ccurt, the appellant contended that, upon a correct interpretation of the section, the Magistrate had the power to order the recovery of rent due to the appellant.\n\nHELD : (Per Wanchoo and Sikri JJ.): The rent was not claimable by the appellant under the Act or the Rules but only under the lease in favour of the respondent. Therefore, s. 259(1), in so far as it refers to recovery of such rent by application to Magistrate, would not apply.\n\nIn view of the provisions of the Act, Ca!ltonment Property Rules, 1925, and the Cantonment Land Administration Rules, 1937, a Cantonment Board has power, to manage the lands or buildings vested in it or entrusted to its management, to lease them out and to fix rents therefor. But s. 259 can be utilised for realisation of arrears of rent on land and buildings, only if such rent is recoverable by a Board or a Military Estates Officer under the Act or the Rules made thereunder. The word \"recoverable\" means \"claimable\". Section 257 read with s. 256 is an example of the Bo; rd's power to claim rent from the tenant of an owner. There may be other such cases, and it is only in those cases, where the Act or the Rules, in terms, make the rent on land and buildings claimable by the Board, that the section will apply. But where the liability arises purely on the basis of a lease between the Board and the tenant, nothing in the Act or the Rules, particularly after r. 42 which provided for such recovery had been repealed, makes such rent claimable by the Board under the Act or the Rules. Since the repeal was in 1940 before the section was amended, it cannot be argued that the rule was repealed because of the amendment of the section. [344 F-H; 346 F-H] The view taken, however, would not affect the right of the Board to recover by suit, under the general law, rent of its land and buildings given by it on lei'se. [347 B]\n\nPer Mudholkar, J. (dissenting): The High Court was in error in setting aside the order of the Magistrate.\n\nWhat the expression \"recoverable by a Board or a Military Estates Officer under the Act or the Rules made thereunder,\" in s. 259 means is, what the Act or the Rules permit the Board to recover, or what the Act or the Rules permit the Military Estates Officer to recover. The words \"recoverable by\" and \"under this Act of the Rules made thereunder.\" are meant to govern \"a Board\" or \"a Military Estates Officer.\" Thus under the section the power to recover money is exercisable by such of these two authorities as performs the duty or exercises the power by reason of which the liability of another\n\n342 SUPREME COUR'r REPORTS (1965] 3 s.c.R.\n\nto pay the tax, rent or.any other money arises. Powers are conferred upon a Board under the Act read with the Cantonment Land Administration Rules, 1937. to let out property vested in it or which is under its management. Where, in exercise of those powers the Board has let out any land or buildings, it has the right as well as the duty to collect the rent from the tenant. Therefore, where the liability to pay money arises against a person, by reason of something done by the Board or the Military Estates Officer, in exercise of a power or the performance of a duty under the Act, that liability can be enforced by the authority concerned, either by instituting a suit or by making an application to a Magistrate. But if the word \"rent\" is confined to money due under some express provision of the Act or Rules, it will lead to the curious result, that, in respect of land or buildings under the management of the Board, neither remedy would be available-though the claim for rent is ultimately traceable to those provisions of the Act and the Rules which empower the Beard to let out the land or buildings-upon the ground that it cannot be said to be claimable or recoverable under any express provision of the Act. [350 C-E; 351F; 351 G-H]\n\nFurther, if the meaning of the word \"rent\" is so restricted, that word itself would be rendered otiose, because, there is no provision whatsoever in the Act which expressly makes rent claimable or recoverable by e; ther of the two authorities specified therein. What the Board recovers under ss. 256 and 257 cannot be regarded as rent, giving the word its dictionary meaning, for, the Board is not the landlord of the occupier, and what it recovers from him, is not something which was due to the Board as rent .from him., [352 E-G].\n\nCRIMINAL APPELLATE JURlSDICTION: Criminal Appeal 151 of 1963.\n\nAppeal by spec; al leave from the judgment and order dated March 27, 1962 of the Punjab High Court in Criminal Revision No. 1137 or 1961.\n\nGopal Singh, for the appellant.\n\nThe respondent did not appear.\n\nThe Judgment of Wanchoo and Sikri JJ. was delivered by Wanchoo J. Mudholkar J. delivered a dissenting opinion.\n\nWanchoo, J .. This appeal by special leave raises the question 6 of the interpretation of s. 259 of the Cantonments Act, No. 11 of 1924, (hereinafter referred to as the Act). The respondent was a tenant of the appellant. An ai; pl'cation was made by the Cantonment Executive Officer, Ambala, on January 7, 1960, for realisation of a sum of Rs. 649.50 from the respondent under s. 259 of the Act on the ground that the amount was due as arrears of rent H on the basis of a lease in favour of the respondent. The respondent apparently questioned the jurisdiction of the magistrate to realise the amount. The magistrate held that he had jurisdiction and issued warrants for attachment of the movable property of the respondent on June 13, 1961. Thereupon the respondent went in revision to the Sess; ons Judge Ambala contending that the magistrate had no jurisdiction to realise the arrears of rent due under a lease\n\nCANTONMENT llOARD AM BALA v. PY ARELAL ( w anchoo, J.) 343\n\nunder s. 259 of the Act and in any case that could not be done without taking into account the objections of the respondent. The Sessions Judge following certain earlier decisions of the Lahore High Court took the view that rent under a lease could not be recovered under s. 259 of the Act and made a reference to the High Court under s. 439 of the Code of Cr; minal Procedure. The High Court heard the reference and accepted the view of the Sessions Judge and set aside the order of the magistrate dated June 13, 1961.\n\nThe High Court having refused the certificate, the appellant obtained special leave from this Court; and that is how the matter has come up before us.\n\nTwo questions have been raised by learned counsel for the appellant in this appeal. In the first place, he urges that the magistrate when he is acting under s. 259 of the Act is a persona designata and therefore his order is not revisable under ss. 435 i 439 of the Code of the Criminal Procedure. The Sessions Judge and the High Court therefore had no jurisdiction to interfere with that order under ss. 435 I 439 of the Code of Criminal Procedure.\n\nSecondly, it is urged that the v'ew taken by the High Court that arrears of rent due under a lease cannot be recovered under s. 259 of the Act is incorrect.\n\nThe question as to the jurisd'ction of the Sessions Judge and High Court was never raised before the appeal in this Court.\n\nLearned counsel, however, relies on the Dargah Committee, Aimer\n\nv. State of Rajasthan (') in support of his contention that the magistrate acting under s. 259 of the Act acts as a persona designata and therefore his order under that section is not revisable under ss. 435 / 439 of the Code of Criminal Procedure and the Sessions Judge and the High Court had no jurisdiction under those provisions to interfere with -such an order. The case cited on behalf of the appellant certainly supports the contention put forward; but in the circumstances of this case we are not prepared to allow this contention to be raised at this stage. It is true that a question of jurisdiction, not depending upon facts to be investigated, can be allowed to be raised at any stage. Ordinarily if we were satisfied that the High Court had no jurisdict:on at all to interfere we would have allowed this cuestion to be raised even at this late stage. But we are of opinion that though the High Court may not have jurisdiction to interfere under ss. 435 I 439 of the Code of Criminal Procedure it could certainly interfere w'th the order of the magistrate under Art. 227 of the Constitution. Now if this point had been raised before the High Court it may very well be that the High Court might have considered the reference as if it was an application before it under Art. 227 of the Const'tution, in which case the High Court would have jurisdiction to interfere with the order or the magi.strate if it came to the conclusion that the magistrate had\n\n(') [I962J 2 s.c.R. 265.\n\nSuPREME COURT REPORTS\n\n(1965] 3 S.C.R.\n\nno jurisdiction in. such circumstances under s. 259 of the Act. In these circumstances we are not prepared to permit the appellant to raise this point before us at this late stage.\n\nThis brings us to the interpretation of s. 259 of the Act as it stood after ame'!dment by Act II of 1954. The relevant part of the section now reads as follows: -\n\n\"Notwithstanding anything elsewhere contained in this Act, arrears of any tax, rent on land and buildings and :my other money recoverable by a Board or a M; litary Estate Officer under this Act or the rules made thereunder may be recovered together with the cost of recovery either by a suit or. on application to a Magitrate having jurisdiction in the cantonment or in any place where the person from whom such tax, rent or money is recoverable may for the time being be residing, by the distress and sale of any movable property of, or stand'ng timber, or growing crop belonging to such person which is within the limits of such magistrate's jurisdiction, and shall if payable by the owner of any property as such, be a charge on the property until paid; provided.\n\n(2) * * * * \" The first question that arises is whether rent on land and bu'ldings mentioned in the sect'on is governed by the words \"recoverable by a Board or a Militarv Estates Offioer under this Act or\n\nthe rules made thereunder\". There is no doubt that \"any tax\" and \"any other money\" mentioned in the section are governed by the F words \"recoverable by a Board etc.\" It seems to us that the words \"rent on land and buildings\" wh'ch appear between the words \"any tax\" and \"any other money\" must equally be governed by the words \"recoverable by a Board etc.\" Therefore the provisions of s. 259 of the Act can be utilised for realisation of arrears of rent on land and buildings onlv if such rent is recoverable by a G Board or a Militarv Estates Officer under the Act or the rules made thereunder. The word \"recoverable\" in the context obviously means \"claimable\". for s. 259 itself provides for the manner of recovery. Therefore action for recovery can be taken under s. 259 w'th respect to rent on land and buildings provided such rent is claimable by a Board under the Act or the rules framed thereun- H der. This view was taken by the Lahore High Court in Banarsi Das\n\nv. Cantonment Authority Ambala Cantonment(') and is in our opinion correct. It may be added that in 1938. the words \"rent on land and buildings\" and •'Under the rules\" did not appear in s. 259 . . Even so. the Lahore High Court fook the view with respect to the section as 't then stood that the money to be recovered under s. 259 must be claimable by the Board under the Act.\n\n(1) A.LR. 1933 Lah. 517.\n\nCANTONMENT BOARD AMBALA v. PYARELAL (Wanchoo, J.) 345\n\nThe next question that arises is whether \"rent on land and buildings\" on lease can be said to be claimable by the Board \"under the Act or the rules. made thereunder\". It is urged on behalf of the appellant that cl. (p) of s. 116 of the Act provides for \"maintaining and developing the value of property vested in, or entrusted to the management of the Board'', ands. 116-A gives the Board power to manage any property entrusted to its management by the Central Government on such terms as to the sharing of rents and profits accruing from such property as may be determined by rule. Further reliance is placed on the Cantonment Property Rules, 1925. Rule .8 thereof provides that immovable property which vests in and belongs to the Cantonment Authority may be leased by the Cantonment Authority without a premium on the condition that a reasonable rent is reserved and made payable during the whole term of the lease and that the lease or the agreement for the lease is not made without the previous sanction of the Cantonment Authority by resolut'on at a general meeting, or the Officer Commanding in Chief of the Command or the Government of India as the case may be. It is urged that these provisions of the Act and the Rules show that the Board has the power to claim rent .thereunder in respect of the leased property. Reliance is further placed on the Cantonment Land Administration Rules 1937 which provide how rents would be fixed when land is leased out by the Cantonment Authority. Rule 4 of these Rules prov'des for classification of land and r. 8 for standard table of rents; r. 9 (6) vests the management of class 'C' land in the Board; r. 26 provides for disposal of land by private agreement; r. 28 for execution of leases, rr. 29 and 30 for maintenance of grants registers of building sites; r. 31 for leases for special periods and on special terms; r. 32 for agricultural land leases; r. 34 for record of agricultural leases; r. 35 for execution of agr'cultural leases; r. 37 for leases for miscellaneous purposes and r. 41 for special conditions in leases. lt may be mentioned that originally there was a rule (r.42) in these terms:-\n\n\"Recovery of arrears-All arrears of rent and other G payment under these rules together with interest on such arreas at the rate of seven and a half per cent per annum from the date when they become due to the date of their realisation, shall, on the application of the person spec'fied in sub-section (2) of section 259 of the Act, or of the Military Estates Officers, as the case may be, recoverable H in the manner provided in that section.\"\n\nThat rule however no longer exists as it was repealed in 1940.\n\nThere is no doubt that in view of the provisions of the Act, the Property Rules and the Land Administration Rules to which we have referred above, the Board has the power to manage lands\n\nl'J A r R. 19~~ tali . .517,\n\n\n(1965) 3 B.C.R,\n\nand Buildings vested in ; t or entrusted to its management, lease A them out and fix rents therefor. But the right of the. Board to claim the rent on land and buildings does not arise from these provisions under the Act ljnd the Rules referred to above. The right of the Board to claim rent only arises after the execution of the lease.\n\nTherefore rent on land and buildings is not claimable by the Board under the provisions of the Act or the Property Rules or the Land B Adm'nistration Rules but under the lease. It follows therefore that s. 259 (I) cannot be applied to a simple case of money due to the Board on a contract of lease.\n\nIt is however urged on behalf of the appellant that the words \"rent on land and buildings\" which were added by the 1954c Amendment refer to something of that kind which is recoverable under s. 259 as , atherwise the amendment would be meaningless.\n\nThat is undoubtedly so. We find however, that s. 256 provides that in the event of. non-compliance with the terms of any notice, order or requisit'on issued to any person under this Act, or any rule or bye-law made thereunder, requiring such person to execute any D work or to do any act. it shall be lawful for the Cantonment Authority after giving notice in writing to such person, to take such action or such steps as may he necessary for the completion of the act or work required to be done or executed by him, and all the expenrcs incurred on such account shall be recoverable by the Cantonment Authority. Section 257 then provides that if any such notice as is E .referred to in s. 256 has been given to any person in respect of property of which he is the owner. the Cantonment Authority may require any occupier of such property or of any part thereof to pay to it, instead of to the owner, any rent payable by him in respect of such property, as it falls due, upto the amount recoverable from the owner under s. 256 and it further provides that any F amount recovered from any occupier ; nstead of from an owner under sub-s. (I) shall. in the absence of any contract between the owner and the occupier to the contrary, be deemed to have been paid to the owner. Here at any rate we have an example of the Board's power to claim rent from a tenant of an owner under s. 257 of the Act read with s. 256. So it cannot be said that there is no G case where the Act does not provide for claim of rent by the Board.\n\nWe may add that there may be other cases like this either under the Act or under the Rules. In our view it is in such cases where the Act or the Rules in terms make the rent on land and build'ngs claimable by the Board. that s. 259 will apply. But where the liability to pay rent arises purely on the basis of a lease between the H Board and the tenant. nothing in the Act or the Rules has been brought to our notice, particularly after r. 42 referred to above has been repealed, which makes such rent claimable by the Board under the Act.or the Rules. We may add r. 42 was repealed long before 1954 when the words \"rent on land and buildings\" came ins. 259.\n\nSo it cannot be argued that the omiss'on of r. 42 was due to the amendment of 1954.\n\nCANtONMENT BOARD AMBALAV. PYARELAL (Muahclbr, J.) 3'17\n\nIt is urged that the section provides for recovery by suit also and as such it will not be possible for the Board to recover rent of land and buildings let out by it even by suit if the rent in the section refers only to rent directly claimable under the Act or the Rules. This jg clearly 'ncorrect. The section does not bar the right of the Board as an owner or holder of land and buildings to take action for recovery of rent thereof by suit under the general law of the land. Further by providing for recovery of rent of the kind we have indicated above by suit or by application rent of the kind we have indicated above by suit or by application . to a magistrate the section does not affect the right of the Board to recver rent of its land and buildings by suit for such rents are entirely outs'de the section and the right of the Board under the general law of the lc; nd is not taken away by the section. It may be that the sction provided for recovery by suit as an alternat:ve as a matter of ab1ndant caution to avoid an argument that the application to a magistrHe ws the only means open to the Board for recovery of sums covered by the section. In any case the view we are taking will not affect the right of the Board to recover by suit under the general law rent of its land and build'ngs given on lease.\n\nIn the circumstances we agree with the High Court that the rent in this case was not claimable by the Board under the Act or the Rules but only under the lease in favour of the respondent.\n\nTherefore s. 259 (!) insofar as it refers to recovery of such rent by application to a magistrate will not apply.\n\nIn the circumstances the appeal fails and is hereby dismissed.\n\nMudholkar, J. The question which falls for a determination in this appeal is whether under s. 259 of the Cantonment Act. No. II of 1924 '1 ent' on land or buildings under the management of the Cantonment Board can be recovered thereunder by a Magistrate.\n\nThis question was raised by the respondent in a revision application made by him before the Sessions Judge under s. 435 of the Code of Criminal Procedure against the order of the Magistrate, II Class, made under the afoesaid prov'sion upon an application made to him by the Executive Officer, Ambala Cantonment for the recovery of Rs. 649.50 nP being the arrears of rent alleged to be due from the respondent to the Cantonment Board. The learned Sessions Judge made a reference to the High Court under s. 438 of the Code of Crimiml Procedure on the uthority of the decisions in Municipal Committee, Delhi v. Hafiz Abdullah(') and Gurandit1a Ma' v. Em.?eror ('). The High Court. after referring to these cases and to Banarsi Das v. Cantonment Authority, A mba/a Cantonment(') accented the reference and set aside the order of the Magistrate. By special leave the Cantonment Board has come up to this Court in <!ppeal\n\n{t) ,\\.I l\"t u1i Lall G'.10\n\n111.) A.IR. T 8 ~.'th. ~\\l.\n\n(~J A.1.!L (~:t;~ J, nh. ; J.\n\n348 SUPREME COURT REl'ORTS [1965) 3 s.C.R.\n\n. Two points were.urged by Mr. Gopal Singh appearing for the appellant. The first is that the proceeding before the Magistrate was not one under the Code of Criminal Procedure (Ind, therefore, neither could a reference be made by the Sessions Judge to the High Court under s. 438. Cr. P.C. nor could an order be made by the High Court under s. 439. The second point is that upon a correct interpretation of s. 259 of the Act the Magistrate had the power to recover the rent due to the appellant in the manner provided for in the section. We did not .allow the first contention to be raised for two reasons. In the first place the point was not raised in the High Court and in the second place it would not be fair to the respondent who is ex parte to have the appeal decided upon a new ground altogether.\n\nIn so far as the second point is concerned it seems to me that the contention of Mr. Gopal S; ngh is correct and that the High Court was in error in setting aside the order of the Magistrate. The two cases upon which reliance was placed before the High Court arose unaer s. lSI of the Punjab Municipal Act (Ill of 1911) whicll runs thus:\n\n\"Any arrears of any tax, water-rate, rent, fee or any other money claimable by a committee under this Act may be recovered on an application to a Magistrate.\" According to the Lahore High Court the operat; on of this section was controlled by the words \"claimable by a committee under this Act\" and that it was not any sum that could be described as rent or fee which could be recovered under summary provisions of that section. According to that High Court only a sum that was claimable by the Committee under the express provisions of that Act could be recovered by resort to summary procedure provided by that section. In Banarsi Das's case(') it was similarly held that the expression \"recoverable by the Cantonment Authority under the Act\" did not include money due under an ordinary contract between the Cantonment Authority and others and that s. 259 of the Act applied only to such monies as were recoverable by that authority under express provisions of the Act. It is this last decision which was relied upon by the High Court and it pointed out that though the word rent did noJ occur in s. 259 of the Act as it stood when Banarsi Das's case(') was decided the introduction of that word had not altered the position in so far as recovery of rent is concerned.\n\nSection 259 of the Act as it now stands runs thus:\n\n\"Notwithstanding anything elsewhere contained in this Act, arrears of any tax, rent on land and buildings and any other money recoverable by a Board or a Military Estates Officer under this Act or the rules made thereunder may be recovered together with the cost of recovery\n\n(') A.LR. 1938 L, h. 517.\n\nCANrONMENTBOARD AMBALAV. PYARELAL(Mudhdkar, J.) 349\n\neither by a suit or on application to a Magistrate having jurisdiction in the cantonment or ; n any place where the person from whom such tax, rent or money is recoverable may for the time being be residing, by the distress and sale of 11ny movable property of, or standing timber or growing crop belonging to such person which is within the limits of such magistrate's jurisdiction, and shall, if payable by the owner of any property as such, be a charge on the property until paid for.\" Then there is a proviso which need not be guoted. The aforesaid section deals with \"Method of recovery\". It sets out two methods: one is institution of a suit and the other is making of an application to a Magistrate. Therefore, where rent of land or building under the; management of the Cantonment Authority falls to be recovered resort could be had either to a suit or to summary, proceeding as provided in the section. But if the expression \"rent\" is confined to money due under some express provision of the Act it will lead to a curious result. Thus in respect of rent of land or buildings under the management of the Board ne'ther remedy would be available-though the claim for the rent is ultimately traceable to those provisions of the Act and the Rules which empower the Board to let out the land or buildings--upon the ground that it cannot be said to be claimable or recoverable under any express provision of the Act. Surely the Legislature could never have meant that even a suit for recovery of rent would be maintainable at the ; nstance of the Board only if it was for the purpose of recovery of rent from a tenant who was liable under an express provision of the Act or the Rules to pay rent to the Board. Under ss. 116 and l 16A of the Act. read along with Cantonment Land Administration Rules, 1937, the Cantonment Board is entrusted with certain duties and is empowered to do certain acts in relation to the Cantonment property under its management. It is the duty of the Board. among other things, to mainta; n and develop the property vested in or entrusted to its management. Section 116-A provides as follows:\n\n\"A Board may, subject to any conditions imposed by the Central Government, manage any property entrusted to its management by the Central Government on such terms as to the sharing of rents and profits accruing from such propertv as may be determined by rules made under section 280.\" The Cantonment Land Administration Rules, 1937 contain detailed provisions as to the leasing of land, standardisation of rents, disnosal of land bv a private agreement. execution of leases etc.\n\nPowers are thus conferred upon the Board to let out property vested in it or which is under ; ts manageme!\"lt. It would follow from this that where in exercise of these powers the Bord has let out anv land or buildings it has the right as well as the duty to collect the rent from the tenant. Therefore, though, strictly speaking, the\n\n\n[1965] 3 S.C.R.\n\nrent due from the tenant cannot be said to be payable under any A express provision of the Act the tenant's liability to pay and the Board's right to recover it is ultimately traceable to the Act inasmuch as this liability has arisen by reason of tlie exercise of a power exercised or performance of duty by the Board under express provisions of the Act and the Rules. Surely the Board cannot be deprived of the right to recover the rent or be absolved B from the duty to recover it by resort to the normal remedy of suit.\n\nYet upon the interpretation placed upon s. 259 of the Act by the Lahore High Court and by the Court below a suit as well as a proceeiing before a Magistrate have to be placed on the same foot; ng.\n\nThis will lead to an impossible position and it cannot for one moment be thought that this is what the Legislature had intended.\n\nC What the expression \"recoverable by a Board or the Military Estates Officer under this Act or the rules made thereunder\" means is what the Act or the Rules permit the Board to recover or what the Act or the Rules permit the M; litary Estates Officer tci recover.\n\nTo put it in another way the words \"recoverable by\" and \"under this Act or the Rules made thereunder\" are meant to govern \"a D Board\" or \"a Military Estates Officer\". It was necessary to make this provision because certain duties are imposed and powers conferred on the Board and certain other duties imposed and powers conferred upon the Military Estates Officer and the section makes it clear that the power to recover money is exerc;.sable by such of these two authozities as performs the duty or exercises the power E by reason of which the liability of another to pay the tax, rent or any other money arises.\n\nIn support ofthe view which I have expressed I may refer to a decision of the Court of Appeal in Tideway Investment and Property Hddings Ld. v. Wel/wood ('). There one of the questions which had to be considered related to award; ng costs to the successful plaintiffs who were the landlords of the defendants. The suit was brought in the High Court and the plaintiffs contended that since the <lefendants have committed a breach of the provisions of the lease they had forfeited it and, therefore, were entitled to possession on forfeiture as also to damages for breach of the contract contained in the lease. The defendants cla; med protection of the Rent Acts and Harman J., who heard the case held that the lease having already expired there could be no forfeiture and the tenant who was holding over became a statutory tenant entitled to ihe protection of the Rent Acts. Evershed M. R., however, said that the tenant became a trespasser or a statutory tenant and that the breach of the convenant was a continuing one .. Therefore, he said, it was plain that all claims arising out of the breach of the convenant and consisting primar'ly of a claim for possession must be regarded as arising out of or under the Rent Restriction Act,\n\n1920. Harman J., also held that the claim must be regarded as\n\n(') [l 952] l Ch. 971.\n\nCANTO~MEl' BOARD AMDALA v. PYARE'-AL (Mudhelkar, .!.) 351\n\nclaims under the Rent Act and s. 17(2) precluded him from awarding costs to the successful plaintiffs. Section 17 (2) reads th us:\n\n\"A county court shall have jurisdiction to deal with any claim or other proceedings ar'sing out of this Act or any of the provisions thereof, notwithstanding that by reason of the amount of claim or otherwise the case would not but for this provision be within the jurisdiction of a county court, and, if a person takes• proceedings under this Act in the H; gh Court which he could have taken in the county court, he shall not be entitled to recover any costs.\" The Master of the Rolls, with whom the other Lords Justices agreed, took the same view as Harman J. It may be mentioned that the suit was not instituted under any specific provision of the Rent Acts\n\nand the claim for possession was based on the breach of a covenant in the lease which the Court of Appeal treated as a ontinuing one and yet was treated as one under the Rent Restr'ction Act, 1922 because of the defence raised. This case thus illustrates that an expression such as the one found in s. 259 of the Act must be construed liberally and not narrowly. In Stroud's Judicial Dictionary, Vol. I, an Australian case, Winstone v. Wurlitz.er Automatic Phonograph Co. of Australia Pty Ltd. (') on which could not lay my hands is cited. There it was held that 'authorise' should be read in its ordinary sense of sanction, approve or countenance. I do not think that there is any substantial difference between\n\n\"Authorised by the Act\" and \"under the Act\".\n\nIt would, therefore, be not right to construe the section in the way it was construed by the court below. On the other hand it must be held that where the liability to pay money arises against a person by reason of something done by the Board or the Military Estates Officer in exercise of a power or the performance of a duty under the Act that !'ability can be enforced by the authority concerned either by instituting the suit or by making an application to a Mag:strate.\n\nFurther, if the word 'rent' ins. 259 of the Act were to be given a restricted meaning that word itself would be rendered otiose because there is no provision whatsoever in the Act wh'ch expressly makes rent claimable or recoverable by either of the two authorities specified therein. Our attention was drawn to s. 257(1) which with out its proviso reads thus:\n\n\"If any such notice as is referred to in section 256 has been given to any person 'n respect of property of which he is the owner, the Board may require any occupier of such property or of any part thereof to pay to it, instead of to the owner, any rent payable by him in respect of\n\n(') [1946] A.LR. 422.\n\n352 SUl'REME COURT REPORTS (1965] 3 s.c.R.\n\nsuch property, as it falls due, up to the amount recover- A able from the owner under section 256.\"\n\nIt cannot, however, be said that what the .Legislature had in contemplation when it amended s. 259 by adding the word \"rent\" therein was \"rent\" to which reference is made in s. 257(1). Sect'on 257 is complementary to s. 256. What s. 256 provides is as follows: B\n\n\"In the event of non-compliance with the terms of any notice; order or requisition issued to any person under this Act, or any rule or bye-law made thereunder, requiring such person to execute any work or to do any act, it shall be lawful for the Board, whether or not the person C in default is !'able to punishment for such default or has been prosecuted or sentenced to any punishment therefor, after giving notice in writing to such person, to take such action or such steps as may be necessary for the completion of the ; ict or work required to be done or executed by him, and all the expenses incurred on such account shall D be recoverable by the Board.\"\n\nTherefore, what the Board has the power to recover from the person is the expenses which it has incurred. One of the modes is to proceed against the occupier of any property belonging to the owner thereof and require that occupier to pay E to the Board instead of to the owner the rent payable by-him to the owner. What the Board thus recovers from the person cannot obviously be regarded as rent in so far as the Board is concerned.\n\nFor, the Board is not the landlord of the occupier and what it recovers from his is not something which was due to the Board as rent from him. 'Rent' as commonly understood and as defined in F Jowitt's 'Dict'onary of English Law' is a sum of money payable periodically by a tenant to a landlord as compensation for occupa- tion of a building or land belonging to the landlord. It cannot thus include money payable by one person to another when they do not stand in the relationship of tenant and landlord. It is the Dict'onary meaning which has to be given to the word 'rent' in s. 259. G'ving G it this meaning it would be clear that what is referred to in s. 257(!) as rent was not intended to be included in that expression in s. 259.\n\nApart from s. 257 no other provision has come to our notice which can support the view of the H'gh Court as to the interpreta tion of s. 259. It may be mentioned that before the year 1940 there H was r. 42 in the Cantonment Land Administration Rules, 1937 which expressly auihorised the Board to recover all arre 0 rs of rent and \"other payments\" under the Rules by resorting to s. 259 of the Act. But that rule was repealed in 1940. It was represented to us by Mr. Gopal Singh that this was repealed because in view ot the wide language of s. 259 there was no need felt for the retention of the rnle. Whatever that may be. the position 's. if I may repeat,\n\nCANTONMllNTBOARDAMBALA v. PYARELAL(Wanchoo, J.) 353\n\nthat if the word rent is given a restricted meaning as has been done by the High Court, that word would become purposeless. On the other hand if the expression is interpreted in the way suggested here it will serve a purpose for which it was intended.\n\nFor these reasons I am of the view that the appeal should be allowed.\n\nORDER BY COURT\n\nIn accordance with op'nion of the majority the appeal is. dis missed.", "total_entities": 122, "entities": [{"text": "THE CANTONMENT BOARD, AMBALA", "label": "PETITIONER", "start_char": 0, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "THE CANTONMENT BOARD, AMBALA", "offset_not_found": false}}, {"text": "PYARELAL", "label": "RESPONDENT", "start_char": 33, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "PYARELAL", "offset_not_found": false}}, {"text": "March 12, 1965", "label": "DATE", "start_char": 42, "end_char": 56, "source": "ner", "metadata": {"in_sentence": "THE CANTONMENT BOARD, AMBALA v.\n\nPYARELAL March 12, 1965\n\n[K. N. WANCHOO, J. R. MUDHOLKAR, ANDS."}}, {"text": "K. N. WANCHOO, J.", "label": "JUDGE", "start_char": 59, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO*", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 77, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "Per Mudholkar", "offset_not_found": false}}, {"text": "ANDS. M. SIKRI, JJ.", "label": "JUDGE", "start_char": 91, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Cantonments Act", "label": "STATUTE", "start_char": 113, "end_char": 128, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 256, 257 and 259", "label": "PROVISION", "start_char": 142, "end_char": 162, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 250", "label": "PROVISION", "start_char": 235, "end_char": 241, "source": "regex", "metadata": {"statute": null}}, {"text": "Cantonments Act, 1924", "label": "STATUTE", "start_char": 249, "end_char": 270, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Supreme Ccurt", "label": "COURT", "start_char": 734, "end_char": 747, "source": "ner", "metadata": {"in_sentence": "In its appeal to the Supreme Ccurt, the appellant contended that, upon a correct interpretation of the section, the Magistrate had the power to order the recovery of rent due to the appellant."}}, {"text": "s. 259(1)", "label": "PROVISION", "start_char": 1079, "end_char": 1088, "source": "regex", "metadata": {"linked_statute_text": "the Cantonments Act, 1924", "statute": "the Cantonments Act, 1924"}}, {"text": "Property Rules, 1925", "label": "STATUTE", "start_char": 1236, "end_char": 1256, "source": "regex", "metadata": {}}, {"text": "Cantonment Land Administration Rules, 1937", "label": "STATUTE", "start_char": 1266, "end_char": 1308, "source": "regex", "metadata": {}}, {"text": "s. 259", "label": "PROVISION", "start_char": 1467, "end_char": 1473, "source": "regex", "metadata": {"linked_statute_text": "the Cantonment Land Administration Rules, 1937", "statute": "the Cantonment Land Administration Rules, 1937"}}, {"text": "Board or a Military Estates Officer under the Act or the Rules", "label": "STATUTE", "start_char": 1586, "end_char": 1648, "source": "regex", "metadata": {}}, {"text": "Section 257", "label": "PROVISION", "start_char": 1708, "end_char": 1719, "source": "regex", "metadata": {"linked_statute_text": "Board or a Military Estates Officer under the Act or the Rules", "statute": "Board or a Military Estates Officer under the Act or the Rules"}}, {"text": "s. 256", "label": "PROVISION", "start_char": 1730, "end_char": 1736, "source": "regex", "metadata": {"linked_statute_text": "Board or a Military Estates Officer under the Act or the Rules", "statute": "Board or a Military Estates Officer under the Act or the Rules"}}, {"text": "Per Mudholkar", "label": "JUDGE", "start_char": 2617, "end_char": 2630, "source": "ner", "metadata": {"in_sentence": "347 B]\n\nPer Mudholkar, J. (dissenting): The High Court was in error in setting aside the order of the Magistrate.", "canonical_name": "Per Mudholkar"}}, {"text": "Board or a Military Estates Officer under the Act or the Rules", "label": "STATUTE", "start_char": 2762, "end_char": 2824, "source": "regex", "metadata": {}}, {"text": "s. 259", "label": "PROVISION", "start_char": 2846, "end_char": 2852, "source": "regex", "metadata": {"linked_statute_text": "Board or a Military Estates Officer under the Act or the Rules", "statute": "Board or a Military Estates Officer under the Act or the Rules"}}, {"text": "ss. 256 and 257", "label": "PROVISION", "start_char": 4906, "end_char": 4921, "source": "regex", "metadata": {"statute": null}}, {"text": "Gopal Singh", "label": "OTHER_PERSON", "start_char": 5351, "end_char": 5362, "source": "ner", "metadata": {"in_sentence": "Gopal Singh, for the appellant.", "canonical_name": "Gopal Singh"}}, {"text": "and Sikri", "label": "JUDGE", "start_char": 5440, "end_char": 5449, "source": "ner", "metadata": {"in_sentence": "The Judgment of Wanchoo and Sikri JJ."}}, {"text": "Wanchoo J. Mudholkar", "label": "JUDGE", "start_char": 5471, "end_char": 5491, "source": "ner", "metadata": {"in_sentence": "was delivered by Wanchoo J. Mudholkar J. delivered a dissenting opinion."}}, {"text": "s. 259", "label": "PROVISION", "start_char": 5618, "end_char": 5624, "source": "regex", "metadata": {"statute": null}}, {"text": "Cantonments Act", "label": "STATUTE", "start_char": 5632, "end_char": 5647, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ambala", "label": "GPE", "start_char": 5812, "end_char": 5818, "source": "ner", "metadata": {"in_sentence": "An ai; pl'cation was made by the Cantonment Executive Officer, Ambala, on January 7, 1960, for realisation of a sum of Rs."}}, {"text": "s. 259", "label": "PROVISION", "start_char": 5905, "end_char": 5911, "source": "regex", "metadata": {"statute": null}}, {"text": "June 13, 1961", "label": "DATE", "start_char": 6255, "end_char": 6268, "source": "ner", "metadata": {"in_sentence": "The magistrate held that he had jurisdiction and issued warrants for attachment of the movable property of the respondent on June 13, 1961."}}, {"text": "Ambala", "label": "JUDGE", "start_char": 6335, "end_char": 6341, "source": "ner", "metadata": {"in_sentence": "Thereupon the respondent went in revision to the Sess; ons Judge Ambala contending that the magistrate had no jurisdiction to realise the arrears of rent due under a lease\n\nCANTONMENT llOARD AM BALA v. PY ARELAL ( w anchoo, J.) 343\n\nunder s. 259 of the Act and in any case that could not be done without taking into account the objections of the respondent."}}, {"text": "s. 259", "label": "PROVISION", "start_char": 6509, "end_char": 6515, "source": "regex", "metadata": {"statute": null}}, {"text": "Lahore High Court", "label": "COURT", "start_char": 6690, "end_char": 6707, "source": "ner", "metadata": {"in_sentence": "The Sessions Judge following certain earlier decisions of the Lahore High Court took the view that rent under a lease could not be recovered under s. 259 of the Act and made a reference to the High Court under s. 439 of the Code of Cr; minal Procedure."}}, {"text": "s. 259", "label": "PROVISION", "start_char": 6775, "end_char": 6781, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 439", "label": "PROVISION", "start_char": 6838, "end_char": 6844, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 259", "label": "PROVISION", "start_char": 7333, "end_char": 7339, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 435", "label": "PROVISION", "start_char": 7421, "end_char": 7428, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 435", "label": "PROVISION", "start_char": 7577, "end_char": 7584, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 7598, "end_char": 7624, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 259", "label": "PROVISION", "start_char": 7752, "end_char": 7758, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 259", "label": "PROVISION", "start_char": 8062, "end_char": 8068, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 435", "label": "PROVISION", "start_char": 8174, "end_char": 8181, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 8195, "end_char": 8221, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 435", "label": "PROVISION", "start_char": 8932, "end_char": 8939, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 8953, "end_char": 8979, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 227", "label": "PROVISION", "start_char": 9048, "end_char": 9056, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 227", "label": "PROVISION", "start_char": 9254, "end_char": 9262, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 259", "label": "PROVISION", "start_char": 9549, "end_char": 9555, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 259", "label": "PROVISION", "start_char": 9726, "end_char": 9732, "source": "regex", "metadata": {"statute": null}}, {"text": "Estate Officer under this Act", "label": "STATUTE", "start_char": 10014, "end_char": 10043, "source": "regex", "metadata": {}}, {"text": "Board or a Militarv Estates Offioer under this Act", "label": "STATUTE", "start_char": 10769, "end_char": 10819, "source": "regex", "metadata": {}}, {"text": "s. 259", "label": "PROVISION", "start_char": 11208, "end_char": 11214, "source": "regex", "metadata": {"linked_statute_text": "Board or a Militarv Estates Offioer under this Act", "statute": "Board or a Militarv Estates Offioer under this Act"}}, {"text": "s. 259", "label": "PROVISION", "start_char": 11490, "end_char": 11496, "source": "regex", "metadata": {"linked_statute_text": "Board or a Militarv Estates Offioer under this Act", "statute": "Board or a Militarv Estates Offioer under this Act"}}, {"text": "s. 259", "label": "PROVISION", "start_char": 11590, "end_char": 11596, "source": "regex", "metadata": {"linked_statute_text": "Board or a Militarv Estates Offioer under this Act", "statute": "Board or a Militarv Estates Offioer under this Act"}}, {"text": "s. 259", "label": "PROVISION", "start_char": 11980, "end_char": 11986, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 259", "label": "PROVISION", "start_char": 12118, "end_char": 12124, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 116", "label": "PROVISION", "start_char": 12475, "end_char": 12481, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 12706, "end_char": 12724, "source": "ner", "metadata": {"in_sentence": "116-A gives the Board power to manage any property entrusted to its management by the Central Government on such terms as to the sharing of rents and profits accruing from such property as may be determined by rule."}}, {"text": "Further reliance is placed on the Cantonment Property Rules, 1925", "label": "STATUTE", "start_char": 12836, "end_char": 12901, "source": "regex", "metadata": {}}, {"text": "Government of India", "label": "ORG", "start_char": 13384, "end_char": 13403, "source": "ner", "metadata": {"in_sentence": "Rule .8 thereof provides that immovable property which vests in and belongs to the Cantonment Authority may be leased by the Cantonment Authority without a premium on the condition that a reasonable rent is reserved and made payable during the whole term of the lease and that the lease or the agreement for the lease is not made without the previous sanction of the Cantonment Authority by resolut'on at a general meeting, or the Officer Commanding in Chief of the Command or the Government of India as the case may be."}}, {"text": "Reliance is further placed on the Cantonment Land Administration Rules 1937", "label": "STATUTE", "start_char": 13578, "end_char": 13653, "source": "regex", "metadata": {}}, {"text": "section 259", "label": "PROVISION", "start_char": 14717, "end_char": 14728, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 259", "label": "PROVISION", "start_char": 15695, "end_char": 15701, "source": "regex", "metadata": {"linked_statute_text": "Therefore rent on land and buildings is not claimable by the Board under the provisions of the Act or the Property Rules", "statute": "Therefore rent on land and buildings is not claimable by the Board under the provisions of the Act or the Property Rules"}}, {"text": "s. 259", "label": "PROVISION", "start_char": 15982, "end_char": 15988, "source": "regex", "metadata": {"linked_statute_text": "Therefore rent on land and buildings is not claimable by the Board under the provisions of the Act or the Property Rules", "statute": "Therefore rent on land and buildings is not claimable by the Board under the provisions of the Act or the Property Rules"}}, {"text": "s. 256", "label": "PROVISION", "start_char": 16087, "end_char": 16093, "source": "regex", "metadata": {"linked_statute_text": "Therefore rent on land and buildings is not claimable by the Board under the provisions of the Act or the Property Rules", "statute": "Therefore rent on land and buildings is not claimable by the Board under the provisions of the Act or the Property Rules"}}, {"text": "Section 257", "label": "PROVISION", "start_char": 16653, "end_char": 16664, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 256", "label": "PROVISION", "start_char": 16727, "end_char": 16733, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 256", "label": "PROVISION", "start_char": 17060, "end_char": 17066, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 257", "label": "PROVISION", "start_char": 17415, "end_char": 17421, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 256", "label": "PROVISION", "start_char": 17443, "end_char": 17449, "source": "regex", "metadata": {"statute": null}}, {"text": "So it cannot be said that there is no G case where the Act", "label": "STATUTE", "start_char": 17451, "end_char": 17509, "source": "regex", "metadata": {}}, {"text": "s. 259", "label": "PROVISION", "start_char": 17785, "end_char": 17791, "source": "regex", "metadata": {"linked_statute_text": "So it cannot be said that there is no G case where the Act", "statute": "So it cannot be said that there is no G case where the Act"}}, {"text": "AMBALAV. PYARELAL", "label": "JUDGE", "start_char": 18322, "end_char": 18339, "source": "ner", "metadata": {"in_sentence": "CANtONMENT BOARD AMBALAV."}}, {"text": "s. 259", "label": "PROVISION", "start_char": 19881, "end_char": 19887, "source": "regex", "metadata": {"statute": null}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 20050, "end_char": 20059, "source": "ner", "metadata": {"in_sentence": "Mudholkar, J. The question which falls for a determination in this appeal is whether under s. 259 of the Cantonment Act.", "canonical_name": "Per Mudholkar"}}, {"text": "s. 259", "label": "PROVISION", "start_char": 20141, "end_char": 20147, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 435", "label": "PROVISION", "start_char": 20419, "end_char": 20425, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 20433, "end_char": 20459, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ambala Cantonment", "label": "GPE", "start_char": 20599, "end_char": 20616, "source": "ner", "metadata": {"in_sentence": "This question was raised by the respondent in a revision application made by him before the Sessions Judge under s. 435 of the Code of Criminal Procedure against the order of the Magistrate, II Class, made under the afoesaid prov'sion upon an application made to him by the Executive Officer, Ambala Cantonment for the recovery of Rs."}}, {"text": "s. 438", "label": "PROVISION", "start_char": 20808, "end_char": 20814, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 21505, "end_char": 21531, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 438", "label": "PROVISION", "start_char": 21629, "end_char": 21635, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 439", "label": "PROVISION", "start_char": 21697, "end_char": 21703, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 259", "label": "PROVISION", "start_char": 21763, "end_char": 21769, "source": "regex", "metadata": {"statute": null}}, {"text": "Gopal S", "label": "OTHER_PERSON", "start_char": 22247, "end_char": 22254, "source": "ner", "metadata": {"in_sentence": "In so far as the second point is concerned it seems to me that the contention of Mr. Gopal S; ngh is correct and that the High Court was in error in setting aside the order of the Magistrate.", "canonical_name": "Gopal Singh"}}, {"text": "SI of the Punjab Municipal Act", "label": "STATUTE", "start_char": 22437, "end_char": 22467, "source": "regex", "metadata": {}}, {"text": "Banarsi Das", "label": "OTHER_PERSON", "start_char": 23126, "end_char": 23137, "source": "ner", "metadata": {"in_sentence": "In Banarsi Das's case(') it was similarly held that the expression \"recoverable by the Cantonment Authority under the Act\" did not include money due under an ordinary contract between the Cantonment Authority and others and that s. 259 of the Act applied only to such monies as were recoverable by that authority under express provisions of the Act."}}, {"text": "s. 259", "label": "PROVISION", "start_char": 23352, "end_char": 23358, "source": "regex", "metadata": {"linked_statute_text": "According to that High Court only a sum that was claimable by the Committee under the express provisions of that Act", "statute": "According to that High Court only a sum that was claimable by the Committee under the express provisions of that Act"}}, {"text": "s. 259", "label": "PROVISION", "start_char": 23600, "end_char": 23606, "source": "regex", "metadata": {"linked_statute_text": "According to that High Court only a sum that was claimable by the Committee under the express provisions of that Act", "statute": "According to that High Court only a sum that was claimable by the Committee under the express provisions of that Act"}}, {"text": "Section 259", "label": "PROVISION", "start_char": 23773, "end_char": 23784, "source": "regex", "metadata": {"linked_statute_text": "According to that High Court only a sum that was claimable by the Committee under the express provisions of that Act", "statute": "According to that High Court only a sum that was claimable by the Committee under the express provisions of that Act"}}, {"text": "Board or a Military Estates Officer under this Act", "label": "STATUTE", "start_char": 23968, "end_char": 24018, "source": "regex", "metadata": {}}, {"text": "CANrONMENTBOARD AMBALAV. PYARELAL(Mudhdkar", "label": "JUDGE", "start_char": 24128, "end_char": 24170, "source": "ner", "metadata": {"in_sentence": "CANrONMENTBOARD AMBALAV."}}, {"text": "ss. 116", "label": "PROVISION", "start_char": 25900, "end_char": 25907, "source": "regex", "metadata": {"statute": null}}, {"text": "Cantonment Land Administration Rules, 1937", "label": "STATUTE", "start_char": 25946, "end_char": 25988, "source": "regex", "metadata": {}}, {"text": "Section 116", "label": "PROVISION", "start_char": 26270, "end_char": 26281, "source": "regex", "metadata": {"linked_statute_text": "Cantonment Land Administration Rules, 1937", "statute": "Cantonment Land Administration Rules, 1937"}}, {"text": "section 280", "label": "PROVISION", "start_char": 26577, "end_char": 26588, "source": "regex", "metadata": {"linked_statute_text": "Cantonment Land Administration Rules, 1937", "statute": "Cantonment Land Administration Rules, 1937"}}, {"text": "Cantonment Land Administration Rules, 1937", "label": "STATUTE", "start_char": 26595, "end_char": 26637, "source": "regex", "metadata": {}}, {"text": "s. 259", "label": "PROVISION", "start_char": 27704, "end_char": 27710, "source": "regex", "metadata": {"statute": null}}, {"text": "Board or the Military Estates Officer under this Act", "label": "STATUTE", "start_char": 28032, "end_char": 28084, "source": "regex", "metadata": {}}, {"text": "Harman", "label": "JUDGE", "start_char": 29539, "end_char": 29545, "source": "ner", "metadata": {"in_sentence": "The defendants cla; med protection of the Rent Acts and Harman J., who heard the case held that the lease having already expired there could be no forfeiture and the tenant who was holding over became a statutory tenant entitled to ihe protection of the Rent Acts."}}, {"text": "Evershed M. R.", "label": "JUDGE", "start_char": 29748, "end_char": 29762, "source": "ner", "metadata": {"in_sentence": "Evershed M. R., however, said that the tenant became a trespasser or a statutory tenant and that the breach of the convenant was a continuing one .. Therefore, he said, it was plain that all claims arising out of the breach of the convenant and consisting primar'ly of a claim for possession must be regarded as arising out of or under the Rent Restriction Act,\n\n1920."}}, {"text": "Rent Restriction Act", "label": "STATUTE", "start_char": 30088, "end_char": 30108, "source": "regex", "metadata": {}}, {"text": "s. 17(2)", "label": "PROVISION", "start_char": 30287, "end_char": 30295, "source": "regex", "metadata": {"linked_statute_text": "the Rent Restriction Act,\n\n1920", "statute": "the Rent Restriction Act,\n\n1920"}}, {"text": "Section 17", "label": "PROVISION", "start_char": 30360, "end_char": 30370, "source": "regex", "metadata": {"linked_statute_text": "the Rent Restriction Act,\n\n1920", "statute": "the Rent Restriction Act,\n\n1920"}}, {"text": "s. 259", "label": "PROVISION", "start_char": 31350, "end_char": 31356, "source": "regex", "metadata": {"statute": null}}, {"text": "Stroud", "label": "OTHER_PERSON", "start_char": 31417, "end_char": 31423, "source": "ner", "metadata": {"in_sentence": "In Stroud's Judicial Dictionary, Vol."}}, {"text": "s. 257(1)", "label": "PROVISION", "start_char": 32598, "end_char": 32607, "source": "regex", "metadata": {"statute": null}}, {"text": "section 256", "label": "PROVISION", "start_char": 32689, "end_char": 32700, "source": "regex", "metadata": {"statute": null}}, {"text": "section 256", "label": "PROVISION", "start_char": 33085, "end_char": 33096, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 259", "label": "PROVISION", "start_char": 33192, "end_char": 33198, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 257(1)", "label": "PROVISION", "start_char": 33274, "end_char": 33283, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 256", "label": "PROVISION", "start_char": 33317, "end_char": 33323, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 256", "label": "PROVISION", "start_char": 33330, "end_char": 33336, "source": "regex", "metadata": {"statute": null}}, {"text": "F Jowitt", "label": "OTHER_PERSON", "start_char": 34654, "end_char": 34662, "source": "ner", "metadata": {"in_sentence": "Rent' as commonly understood and as defined in F Jowitt's 'Dict'onary of English Law' is a sum of money payable periodically by a tenant to a landlord as compensation for occupa- tion of a building or land belonging to the landlord."}}, {"text": "s. 259", "label": "PROVISION", "start_char": 35042, "end_char": 35048, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 257(!)", "label": "PROVISION", "start_char": 35121, "end_char": 35130, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 259", "label": "PROVISION", "start_char": 35193, "end_char": 35199, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 257", "label": "PROVISION", "start_char": 35213, "end_char": 35219, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 259", "label": "PROVISION", "start_char": 35336, "end_char": 35342, "source": "regex", "metadata": {"statute": null}}, {"text": "Cantonment Land Administration Rules, 1937", "label": "STATUTE", "start_char": 35415, "end_char": 35457, "source": "regex", "metadata": {}}, {"text": "s. 259", "label": "PROVISION", "start_char": 35581, "end_char": 35587, "source": "regex", "metadata": {"linked_statute_text": "the Cantonment Land Administration Rules, 1937", "statute": "the Cantonment Land Administration Rules, 1937"}}, {"text": "s. 259", "label": "PROVISION", "start_char": 35743, "end_char": 35749, "source": "regex", "metadata": {"linked_statute_text": "the Cantonment Land Administration Rules, 1937", "statute": "the Cantonment Land Administration Rules, 1937"}}]}
{"document_id": "1965_3_34_46_EN", "year": 1965, "text": "KALURAM ONKARMAL AND ANOTHER v.\n\nBAIDYANAIB GORAIN February I I. 1965 IP. B. 0AJENDRA.G; JJK:AR, C.J., M. HIDAYATULLAH, J. C. SHm AND\n\n. S. M. SIKIU, JJ.J West Be,, gal Premises Tenancv Act. (12 of 1956), ss. 17, 21 and 22-Suit for eviction-Deposit of rent by tenant with Rent Controller and not im Court during pendencv of imit-If defence could be stn.1ck off under s. l\"/ (3). The appellant and respondent were the tenant and owner respectively of premises to which the West Bengal Premises Tenancy Act, 1956, applied. The respondent filed a suit, under s. 13 of the Act, for the eviction of the appellant on various grounds. The appellant\n\ndeni•'d the allegations and contested the suit. Before the suit was filed, the appeilant was depositing the rent for the premises with the Rent Controller under s. 21 of the Act, becouse, the respondent was not prepared to accept the rent. The appellant continued to deposit the rent with !ht Rent Controller even after the suit wa• filed and the summons was served. Alleging that as soon as the suit was filed and a period of one month from the date of service. of the summons <>n the appellant had expired, it was obligatory on the appellant under s. 17(1), to pay the amount in court and not with tl\\e Hent Controller, the respondent filed an application for striking out the defenre of the .appellant in the suit. The application was allowed by the trial court. The appellant's revision petition to the 'High Court was dismissed, following the decision of a Special Bnrh\n\nof the High Court in Siddheswar Paul v. Prakash Chandra Dutta, A.LR 1964, Cal. 105.\n\nIn the appeal to this Court it was contended that the majority view in Siddheswar Paul's case that s. 22(3) does not apply to cases falling under s. 17(1) was wrong, because, the deposit made by the appellant under s. 21 with the Rent Controller constituted payment of rent by him to the landlord, under s. 22(3); and therefore, there was no scope for invoking s. 17(3) against the appellant inasmuch as the basis of s. 17(3) was that the tenant whose defence was sought to be' strurk out had committed a default in the poyment of rent.\n\nHELD: Section 17(1) is a complete scheme by itself and the legislature1has intended that in suits or proceedings to which the section applies the payment of rent by the tenant to the landlord must l; e made in the manner prescribed by the section. The legislature wanted the section to control the relationsh'p between the landlord and the tenant as prescribed by it, once a suit or proceeding for ejectment was instituted and a period of one month from the date of service of the writ or summons on the defendant had expired.\n\nE\\'en in cases where the tenant might have been depositing the rent with the Controller tinders. 21, he has to comply with s. 17(1) before the period prescribed by the section had elapsed, because, as coon us a suit is filed against the tenant by the landlord for eviction. s. 17 \\Vhich i_s a specal provision, comes into operation, and it is the provisions of that special section that must prevail in cases governed\n\nby it. The object is, when a su;; or proceeding has commenced l'etween the landlord and the tenant for ejectment and the tenant had received notice of it, the payment of rent should be made in court to avoid any disputes in that behalf. The majority view in Siddheswar Paul's case correctly represents the true scope and effect of s. 17 as distinguished from ss. 21 and 22. f42E: 431-F; 45G-Hl\n\nXALU!Wd v. BAIDYAN.A'IH (Gajendragadkar, 0. J .) 36\n\nA Therefore, even the valid deposit made under s. 21 could not be permitted to oe pleaded by the tenant when the application waii made against him under s. 17(3). r43Cl\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 875 of 1964.\n\nAppeal by special leave from the judgment and order dated B April 10, 1964, of the Calcutta High Co111; t in Civil Rule No. 4439 of 1962.\n\nN. C. Chatterjee and D. Goburdhan, for the appellants.\n\nP. K. Chatterjee and D. N. Mukherjee, for the respondent.\n\n0 The Judgment of the Court was delivered by Gajendragadkar, C.J. Appellant No .. 1, Kaluram Onkarmal, was let into possession of the premises described as holding No. 182H, G.T. Road, Asansol as a monthly tenant under Harbhajan Singh Wasal who was the owner 't>f the said premises. The rent agreed to be paid was Rs. 35 per month payable according to the D English Calendar. It appears that in 1953, the Calcutta Nationat\n\nBank Ltd. (now in liquidation) sued the owner Wasal on the original side of the Calcutta High Court on a mortgage. In the said suit, a preliminary decree was passed and in due course, it was followed by a final decree. During the proceedings of the said suit, Mr. K. K. lihose was appointed Receiver of the mortgaged pro-\n\nJ!I perties, including the premises in the present suit. 0n February 18, 1960, the Receiver put the mortgaged properties to sale and the respondent, Baidyanath Gorain, purchased them. The said sale was confirmed by the Calcutta High Court on March 1, 1960. That is how the respondent became the owner of the suit premises amng with other properties under mortgage. After P he acquired title to the suit premises in this manner, the respondent intormed appellant No. 1 about the same by his letter dated the '2nd April, 1960.\n\nOn December 11, 1961, the respondent sued appellant No. l, and appellant No. 2, Kaluram Bajranglal in the First Court of the G .Munsif at Asansol for ejectment. He claimed vacant possession of the premises let out to appellant No. 1 on several grounds. He urged tbat he reasonably required the premises for rebuilding them after demolishing the existing structure. According to him, the existing structure had become very old and was in a dilapidated condit'on. He also a!Jeged that appellant No. 1 had unlawfully H sublet the suit premises to appellant No. 2, and that he had failed to pay or deposit the rents for the last three years in accordance with law.\n\nThe claim for ejectment thus made by the respondent was disputed by appellant No. I on several grounds. Appellant No. l denied that the respondent required the suit premises for rebuilding, and also disputed his allegation that he had sublet the said\n\npremises unlawfully. In regard to the averment made by the res A pondent that appellant No 1 had failed to pay or deposit the rents Gue for the last three years, appellant No. 1 made a detailed denial. He urged that the rents had been regularly paid to the owner in ftme before August, 1960, and he pleaded that since the month of August, 1960 when he found that the owner was not prepared to accept the rents from him, he deposited them with the B House Rent Controller, Asansol, from month to month. It was his case that notice had been served on the owner in respect of these deposits from month to month as provided by section 21(3) of the West Bengal Premises Tenancy Act, 1956, (Act XII of 1956) (heremafter called 'the Act'). The written statement further averred that a the deposit of the monthly rent continued to be made regularly under s. :ll and that the rent for March, 1962 had been duly deposited on April 10, 1962. This written statement was filed on AprH 11, 1962. .\n\nDuring the pendency of this suit, the respondent made an application under s. 17(3) of the Act and claimed that the defence D ot appellant No. l against delivery of possession should be struck out, because he bad failed to deposit or pay the amount in Court as required by s. 17(1) of the Act. This application was strenuously opposed by appellant No l on the ground that s. 17(3) could not be invoked against him in view of the fact that he bad been deposit- B ing the rent from month to month under s. 21. and he urged that the deposit of rent thus made by him amounted to payment of rent by him to the respondent under s. 22(3) and, therefore. no default had been committed by him at all. This dispute raised the question about the true scope and effect of the provisions of s. 17(3) nnd s. 22(3) of the Act. The learned trial Judge held that notwithp\n\ntanding the fact that appellant No. I had been depositing the rent from month to month under s. 22 with tlie Rent Controller, having regard to the provisions contained in s. 17(1) his failure to deposit the relevant amount in Court incurred the liability to have hi~ defence struck out under s. 17(3). In coming to this conclusion, the learned Judge followed a decision of the Division Bench of the G Calcutta High Court in Abdul Majid v. Dr. Samiruddin('). Having held thats. 17(3) applied, the learned Judge directed that the defence raised by appellant No. l against the claim of the respondent for delivery of possession of the suit premises must be struck out.\n\nThis order was challenged by both the appellants by preferring B a revision application before the Calcutta High Court. Before this revision application reached the stage of hearing, the question raised by it had already been concluded by a majonity decision. of the Special Bench of the Calcutta High Court in Siddherivar Paul v.\n\nPrakash Chandra Dutta('). The learned single Judge who heard this\n\n(11 62 C.W.N. 555. \\') A.LR. 196-i Cal. 105.\n\nKAlURAM v. B\"'IDYANATH (Gajendr111Ja.ikar, c. J.) 37\n\nA revision application w.as naturally bound by the said majority decision, and applying the sa'd decisicm, he held that the order passed by the learned trial Judge striking out the defence of appellant No. 1 under s. 17(3) of the Act was justified. It is this order which is challenged by Mr. N. C. Chatterjee on behalf of the appellants in tlie present appeal which has been brought to this Court by B special leave. Mr. Chatterjee contends that the majority decision of the Special Bench in Siddheswar Paul's case(') is erroneous and has proceeded on a misconstruction of the tone, scope and effect of the two relevant section of the Act-ss. 17 & 22. That is how the short question which falls for our decision in the present appeal is: what C is the true scope and effect of the prov'sions prescribed by sections\n\n17 and 22 of the Act? It appears that the Special Bench in Si4dheswm: Paul's case was divide:! on this issue; the three learned Judges \"have taken the view that s. 22(3) does not apply to cases tailing under s. 17(1), whereas two other learned Judges have co.me to the conclusion that if a tenant had made a deposit with the D Rent Controller to which s: 22(3) applies, section 17(3) cannot be invoked against him. The separate judgments delivered by all the learned Judges who constituted the Special Bench have dealt with the point at great length and each one has subjected the said two provisions to a close analysis and examination.\n\nIn the present appeal, we propose to consider the matter in a broad way and will E confine ourselves to some general considerations which flow from the construction of the two relevant prC'Visions and which. in our opinion, support the view taken by the majority of the Judges in the- Special Bench.\n\nBefore addressing ourselves to the main point in dispute betr ween the parties, it is necessary to refer broadly to the scheme of the Act and its main provisions. The Act was passed in 1956 and' it superseded the earlier Act XVII of 1950. The Act consists of seven Chapters. Ch. I deals with definitions; Ch. II contains provisio.1s regarding rent; Ch. III cove.rs suits and proceedings for\n\nev1cllon; Ch. IV has reference ta deposit of rent; Ch. V consideu G the question of appointment of the Controller and other Officers, their powers and functions; Ch. VI provides for appeals, revision and review; and Ch. VII deals with penalties and miscellaneous provisions. Section 2(b) defines a \"Controller\"; s. 2(c) defines \"fair , rent\"; s. 2(d) defines a \"landlord\"; and s. 2(h) define~ a \"tenant\".\n\nA tenant, according to s. 2(h), includes any person by whom <Yr II on whose account or behalf, the rent of any premises is. or but for a special contract would be payable and also any person contlnumg in possession after the termination of hi~ tenancy, but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction. Section\n\n(') A.LR. [106'] C•l. 105.\n\nHD provides that a tenant shall, subject. to the provisions of the A Act, pay to the landlcrd: (a) in cases where fair rent has been fixed for any premises, such rent; (b) in other cases, the rent agreed upon until fair rent is fixed. Section 4(2) lays down tha~ rent shall be paid within the time fixed by contract or in the\n\nabsence of such contract, by the 15th day of the month next fol< Jcwmg the month for which it is payable; and undev s. 4(3), any B sum in excess of the rent referred to in sub-s. (I) shall not be recoverable by the landlord. These provisions. are in cohformity with the pattern which is usually adopted by Rent Restriction Acts.\n\nThe rest of the provisicns of Chapter II deal with the fixation of standard rent; with the said provisions, we are not concerned in ihe C! present appeal.\n\nChapter III which deals with suits and proceedings for eviction contains s. 17 which falls to be considered in the present appeal. Section 13 which affords protection to tenants against eviction, lays down that notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of I> any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the grounds specified by clauses (a) to (k). Amongst these clauses, it is clause (i) which deals with a case where the 'tenant has made default in the payment of rent for two months within a period of twelve months or for two successi'le periods in cases where rent is not pa¥<1ble E monthly. Section 14 imposes a restriction on subletting. Secti6n 15 prohibits a tenant from receiving any sum or consideration foi:\n\nrelmquishment of tenancy; and s. 16 provides that the creation and termination of sub-tenancies shall be notified in the manner prescribed by it. That takes us to s. 17. Section 17(1) reads thus:-- p \"On a suit or proceeding being instituted by the landlord on any of the grounds referred to in s. 13, the tenant shall, subject to the provisions of sub-s (2), within one month ot me service of the writ of summons on him deposit in Court er pay to the landlord an amount calculated at the rate of rent at which it wa.s last paid, for the period for which the tenant may have made default inciuding the period subsequent thereto up to the end of the month previous to that in which the deposit or paynient is made together with interest on such amount calculated at the rate of eight and one-third per cent, per annum from the date when any such amount was payable up to the date of deposit. and shall thereafter continue to depqsit or p1y, month by month, by the 15th of each succeeding mcnth\n\na sum equivalentto the rent at that rate.\"\n\nection 17(2) deals with cases where there is a dispute as to the amount of rent payable by the tenant. This provision is not relevant tor our purpose. Section 17(3) provides that if a tenant fails to-\n\nULURAM 'V, BAlDYANATH (Gajendragadkar, c. J.) 39\n\nA deposit or pay any amount Teferred to in sub-s. (]) or sub-section (2), the Court shall order the defence against delivery of possesion to be struck out and shall proceed with the hearing of the suit. It\n\nis under this sub-section that the impugned order has been pased_ Section 17(4) lays down: -\n\n\" lf a tenant makes deposit or payment as required by sub-s. (1) or sub-s. (2), no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord :\n\nProvided that a teriant shall not be entitled to anv relief under this sub-section if he has made default in payment of rent for four months within a period of twelve months.\" Reading s. 17(') by itself, it is clear that when a landlord .D tnstitutes a suit to recover possession of the premises let to his tenant on any of the grounds referred to in s. 13, the tenant is required to deposit the amount in Court as provided by it. It wculd be noticed that the first part of s. 17(1) enables the tenant who has committed a default in the payment of rent prior to the institution ot the suit to make up for that ct:efault and pay the defaulted B amount as specified by this sub-section. This can be done subject to the condition that the tenant pays interest on the defaulted amount calculated in the manner prescribed by it. In regard to the amount payable in future pending the suit or proceeding, s. 17(1) provides that the tenant shall thereafter continue to deposit or pay, p month by month, by the 15th of each succeeding month a sum eq1.1ivalent to the rent at that rate. In the Calcutta High Court there appears to be a difference of opinion as to whether the amount which is required to be deposited by the tenant is rent or not. We are proceeding to deal with the present appeal on the footing that the said amount in law is rent, though it is not described as G such by s. 17(1).\n\nIt is thus clear that whatever may be the cause on which the landlord's claim for eviction is based, s. 17(1) provides that subject to the provisicns of sub-s. (2), within one month of the service of the writ of summons on him, the tenant is required to deposit R in Court the amount in the manner prescribed by it. If he fails to comply with the requirements of s. 17(1), s. 17(3) steps in and enables the landlord to claim that the defence of the tenant against dehvery of possession should be struck out. If section 17(1) and (3) are read by themselves, there is no doubt that appellant No. 1 has failed to comply with 's. 17(1), and so, s. 17(3l can be legitimately invoked against him. He, however, contends that in applying s. 17(3), the Court must take into account net only\n\ns. 17(1) but also s. 22(3), and his argument is that if he has A deoosited the amount of rent under s. 21 and the deposit is other• wise valid. then the deposit itself amounts W payment of rent by him to the landlord and as such, no order can be passed agairust him under s. 17(3), because, in law, he has not committed a default in the payment of rent at all; and it is this contention which makes it necessary ta consider the impact of the provisions of s. 22 on B the application of s. 17(3) against appellant No. I.\n\nLet us. therefore. read s. 22 and attempt to decide what is the etfect of .s. 22(3) on cases falling under s. 17(1). As we have already pointed out, s. 22 occurs in Chapter IV w.hich deal.> with deposit cf. rent. This Chapter begins with s. 21. Section 21(]) proc v10es that where the landlord does not accept any rent tendered by the tenant within the time referred to in s. 4, or where there 1sa bona fide doubt as to the person or persons to whom the rent is payable. the tenant may depqsit such rent with the Controller in the prescribed mrrnner. Secti.on 21(2) lays down that the deposit snail be acccmpanied by an application which should set forth D the particulars prescribed by clauses (a) to \\d). Section 21 (3) requires that the said application shall be accompanied by the prescribed number of copies thereof. Section 21(4) requires the Controller to send a copy of the application received by him from the tenant to the landlord. Under s.-21(5), the Controller is authorised to allow the lafldlord to withdraw the rent deposited with B him. Section 21(6) empowers the forfeiture of the deposit to Government, subject to the conditions orescribed by clauses (a) & (b) ot the said sub-section. There are three other sub-sections to s. 2 ! . which are not relevant for our purpose.\n\nThat takes us to s. 22 it reads thus: - i' \"(!) No rent deposited _under s. 21 shall be considered to have been valijl y deposited under th1t section for purposes of clause (i) of sub-section (!) of s. 13, unless deposited within fifteen days of the time fixed by the contract in writing for payment of the. rent or, in the absence of such contract in writing, unless deposited G within the last day of the month following that for which the rent was payable.\n\n(2) No such deposit shall be considered to have been validly made for the purpose. of the said clause if the tenaRt wilfully or negligently makes any false statement B to his application for depositing 'the rent, unless the landlord has withdrawn the amount deposited before the date of institution of a suit t>r proceeding for recovery, or possession of the premises from the tenant.\n\n13> If the rent is deposited within the time mentioned in sub-section Ul. and does not cease to be a valid depcsit for the reason mentioned in sub, section (2), the deposit\n\nKALURAM v. BAIDYANATH (Gajemlragadkar, c. J.)\n\nA 1hall constitute payment of rent to the landlord as if the amcunt deposited has been valid legal tender of rent if tendered to the landlord on the date fixed by the contract for payment or rent when there is such a contract, Gr, in the absence of any contract, on the fifteenth day of the month next fellowing that for which rent is payable.\" B Mr. N. C. Chatterjee for the appellants contends that the etfect of s. 220) ls that the deposit made by appellant No. 1 shall be held to constitute payment by him to the landlord, and so, there can be no scope for invoking s. 17(3) against him inasmuch/the bas1& of s. 17(3), in substance, is that the tenant whose defence is c sought to be struck out has committed a default in the payment of rent. The object of s. 17(}) is to secure the payment of rent by the tenant to the landlord and since that object has been satisfied by the deposit duly made by appellant No. I under s. 21 (I), it would be unreasonable to allows. 17(3) to be invoked against hii.\n\nIt is common ground that the deposit cf rent has been made by appellant No. I in compliance with the provisions of s. 2 l &nd that it is not rendered invalid under s. 22(2). In other words, Mr. N. C. Chatterjee is entitled to urge his point on the assumption that appellant No. 1 has made a valid deposit under s. 21 and is entitled to the benefit of s. 22(3). Can a valid deposit made under s. 21 be permitted to be pleaded by a tenant when an application is made against him under s. 17(3)?;. that is the question which arises for our decision in the present appeal. The answer to this question necessarily depends upon the determination of the true scope and effect of the provisions contained respectively in s. 17 ands. 22.\n\nAs a matter of common-sense, Mr. N. C. Chatterjee's argument does sound to be prima facie attractive. If, in fact, appellant No. I has deposited the rent from month to month, it does appear harsh and unreasonable that his defence should be struck out on the ground that he has .deposited the rent not in the Court where the suit is pending, but with the Controller. When appellant No. I began to deposit the rent with the Controller, he was justified in doing so; but on the other hand. it is urged against him by Mr. P K. Chatterjee that as soon as the suit is filed under s. 17 and the period prescribed by it has expired, it was obligatory on appellant No.\n\nI to pay the amount in Court and stop depositing it with the Rent Controller; in other words, his failure to pay the amount in Court incurs the penalty prescribed bys. 17(3) notwithstanding the fact that he may have deposited the same amount with the Controller. The requirements of s. 17(1) cannot be said to be satisfied by taking recourse to the provisions of s. 22(3\\; that in substance is the argument for the respondent. The question thus raised for our decision no doubt lies within a very narrow COffiJYdSS and its answer depends upon a proper construction of sections I 7 and 22; but, as we have already indicated, this narrow\n\nquestion has given rise to a sharp conflict cf opinion in the Calcutta A High Court. It appears plain that appellant No. I finds himself in the present difficult position presumably because, acting upo!l the view expressed in some of the judgments of the Calcutta High Court, he was advised to deposit the rent with the Controller even after he was sued. by the respondent and s. 17(1) began to operate against him.\n\nIn dealing with this vexed problem, it is relevant to remember that the two competing provisions occur in two different Chapters and apparently cover different fields. Chapter IV deals with the question of deposit of rent in general, whereas s. 17 in Ch J! 1 makes a provision for the payment of the amount mentioned bv it c in .court after a subt or proceeding has been !intituted1 by the landlord against the tenant. It is common ground that the !< ent Controller is not Court within the meaning of s. 17(1). Prima fade. a eneral provision for the deposit of rent prescribed by s. 21 would not apply to special cases dealt with by s. 17. The provisions of s. 21 and 22 which are genera] in character, would cover cases D which are not expressly dealt with by the special provision prescribed by s. 17 .. In other words, though a tenant may deposit rent with the Controller under the provisions of ss. 21 and 22, as soon as a suit is brought against him by the landlord, s. 17 which is a special provision, comes into operation and it is the. provision of this special section that must prevail in cases covered by it: that E is the first general consideration which cannot be ignored.\n\nSection 17 deals with suits or proceedings in which the landlord claims eviction on any of the grounds referred to in s. 13; and as we have already noticed, s. l3 which affords protection to the tenant's eviction, permits the landlord to claim eviction only if he F can place his claim on one or the other of the clauses (a) to lk); that is to say, it is only if one or other of the conditions prescribed by the said clauses is proved that the landlord can claim to evict his tenant. Default in the payment of rent is one of these clauses, but there are several other clauses referring to different causes of action on which eviction can be claimed by the land G lord, and it is to all these cases that s. 17(1) applies. It is thus clear ihat normally, when a suit is brought for eviction, the tenant would have to comply with the requirements of s. 170). It is only where owing to the refusal of the landlord to accept the rent tendered by the 'tenant, or where there is a bona fide doubt as to who is entitled to receive the rent, that the provisions of s. 21 empower the tenant H to deposit the rent with the Controlle~. In all other cases, if the tenant was paying rent to the landlord and is faced with a suit for eviction, s. 17(1) will unambiguously apply and the amount of\n\nrent will have to be paid in Court as required by it. It is also clear that if a tenant has been depositing the rent validly and properly under s. 21 .. a suit against him under s. 13(1)(i) cannot be filed.\n\nSection !l(l)(i) authorises the lanord to claim eviction of his\n\nKALURAlll 9. BAIDYANATH (Gajendragadkar, c. J.) 43\n\nA tenant on the ground that he has made a default in the pament\n\nof rent as described by it. But such a default cannot be attribu.ted to a tenant who has been depositing the rent with the Controller properly and validly under s. 21. Such a valid payment amounts to payment of rent by the tenant to the landlord under s. 22(3), and so. a tenant who has been making these deposits cannot be sued B under s. 13(1)(i).\n\nIt is true that the complication of the present kind arises where a tenant who has been making a valid deposit under s. 21 is sued for ejectment on grounds other than s. J3(l)(i), and s. 17(1) comes into operation against him. In such a case, if the special provisions c prescribed by s. 17(1) apply to the exclusion of sections 21 & 22, the fact that a deposit has been made by the tenant can be no answer to the application made by the landlord under s. 17 (3)\n\nIn this connection, it is necessary to bear in mind the fact that s. 17(1) is really intended to give a benefit to the tenant who D has committed a default in the payment of rent. The first part of s. 17(1) allows such a tenant to pay the defaulted amount of rent together with the prescribed interest in Court within the time prescribed, and such a tenant would not be evicted if he continues to deposit the amount in Court, during the pendency of the suit\n\nas required by the latter part of~. 17(1). In our opinion, the scheme E of s. 17(1) is a complete scheme by itself and the Legislature has intended that in suits or proceedings to .which s. 17(1) applies, the payment of rent by the tenant to landlord must be made in !he manner prescribed by s. 17(1). Even n cases where the tenant might have been depositing the rent with the Controller under s. 21, he has to comply with s. 17(1) before the period prescribed I' by s. 17 (1) has elapsed. It is significant that the requirement to deposit the amount in Court comes into force within one month of the service of the writ of summons on the tenant. In other words, appellant No. 1 was justified in depositing the rent even after the present suit was filed until one month from the service of the writ of summons of the suit had elapsed. The Legislature has taken the 6 precaution of giving the tenant one month's period after the service of the writ of summons on him before requiring him to deposit the amount in Court. The object obviously appears to be that when a suit or proceeding has commenced between the landlord and the tenant for ejectment, and the tenant has received notice of it, the payment of rent should be made in Court to avoid any dispute l'I in that behalf.\n\nIt is also relevant to remember that in the matter of payment of rent in Court, s. 17(1) has provided that the amount to be paid in future shall be paid by the 15th of each succeeding month, and that means that the date for the payment of the amount has been tatutorily fixed which is distinct f,.om the rqiremen~ of s. 4.\n\nSection 4(2) provides for the p2 >meLt d rent withm the time fixed\n\n44 SUl'REKE\n\nCOURT\n\nREPORTS\n\n(1965) 3 8.C.R.\n\nby contract, but s. 170) requires the pa}!llleitt to be made by the A. 15th of each succeeding month whatever may be the contract. If, according to the contract, rent was payable quarterly, or sixmonthly, or even annually, s. 17(1) supersedes that part of the contract .2nj requires the rent to be paid, month by month, by the 15th of each succeeding month.\n\nThe position under sections 21 & 22 is, however, substantially different on this point. Section 210) in terms requires the deposit to be maae within the time referred to in s. 4, and that means where there is a contract made by the parties in relation to the time for the payment of rent, it is on the contracted date that the rent has\n\n; o be deposited under s. 21. The scheme of the three clauses of C s. 22 clearly is integrally connected with s. 21. These clauses deal with deposits made under s. 21. In fact it would be difficult to read s. 22(3) independently of s. 22(1) and (2); all the three clauses of s. 22 must be read together, and so, the time for making the deposit for the purpose of s. 22(3) would be the time prescribed by contract and not the statutory time provided by s. 17(1). It is clear D that the deposit of rent made before the Controller under section 21 is based on the contractual obligation of the tenant to pay the rent, and he makes the deposit because the landlord is not receiving the rent or there is a dispute as to who the real landlord is. On the other hand, the deposit of rent made in Court under s. 17(1) is the result of a statutory obligation imposed by the said sub-section; 111 no doubt, the amount required to be deposited may .be the amount for which the parties may have entered into a contract, but the manner and the mode in which the deposit is required to be made in Court are the result of the statutory provision, and in that sense they constitute a statutory obligation. That is another feature which p distinguishes the deposits covered by sections 21 and 22 from the deposits prescribeil by s. 17(1).\n\nMr. N. C. Chatterjee argued that if the majority view of the Calcutta High Court is upheld, it may lead to some anomalies. As an illustration, he asked us to consider the case of a suit falling G under s. 17(1) which ultimately fails and is dismissed. In such a suit, the rent would have to be deposited in Court by the tenant as required by s. 17(1); but if the suit fails, what happens to the rent? Would the tenant be treated as being a defaulter, or would the tenant who is required to 'make a deposit in Court as required by s. 17(1) be compelled as a precaution, to make another deposit H with the Controller in cases where the landlord had refused to accept rent before he filed the suit? We are not impressed by this argument. In our opinion, if the tenant had deposited the rent in Court as required bys. 17(1), he could not be treated as a defaulter under any provision of the Act. Payment in Court made by the tenant under the statutory obligation imposed on him would, m Jaw, be treated as payment of rent made by him to the landlord.\n\nKALURAM v. llAIDYANATH (GaJendragidkar, 0. J.) 45\n\nMr. N. C. Chatterjee also relies on the fact that s. 24 in terms provides that the acceptance of rent in respect of the period of default in payment of rent by the landlord from the tenant hall operate as a waiver of such default, when there is no proceeding pending in Court for the recovery of possession of the premises.\n\nThe arguni.i:nt is that where the Legislature intended to confine the operation of a specified provision to cases where there is no proceeding pending in Court, it has expressly so stated. In our opinion. this argument is not well-founded. Section 24 merely indicates that the Legislature thought that it was necessary to make that provision in order to avoid any doubt as to whether acceptance of rent would amount to waiver or not in cases where no proceeding was pending in Court. On the other hand, from the wording of s. 24 it may be permissible to suggest that the Legislature did not think vf\n\nproviding for the consequence of acceptance of rent after the commencement of a proceeding for the recovery of possession. because it knew that the said matter would be covered by s. 17(1),\n\nBesides, s. 22(2) gives some indication that the provisions cf s. 22 are not intended to be applied when suits or proceedings have commenced between the landlord and the tenant. It would be noticed that s. 22(2) says that no deposit shall be considered to have been validly made for the purposes of s. 22(1) if the tenant wilfully or negligently makes any false statement in his application E for depositing the amount unless the landlord has withdrawn the amount deposited before the date of institution of a suit or proceeding for recovery of possession of the premises from the tenant. This last clause may suggest that the provisions of all the clauses of s. 22 may not be applicable after the suit or proceeding has commenced.\n\nF As we have already pointed out, the question raised for our decision in the present appeal really centres round the determination of the areas covered by s. 17 on the one; hand, and sections 21 and 22 on the other; and though it may be conceded that the words used in the respective sections are not quite clear, on the whole the scheme evidenced by them indicates that the Legisla- G ture wanted s. 17(1) to control the relationship between the landlord and the tenant as prescribed by it once a suit or proceeding for ejectment was instituted and a period of one month from the service of the writ of summons on the defendant had expired. We\n\nhave carefully considered the reasons given by the two learned H Judges who delivered the minority judgments in the Siddheswar Paul's(') case, but we have come to the conclusion that the majority view on the whole correctly represents the true scope and effect of s. 17, as distinguished from sections 21 and 22.\n\n' ' In the result, the appeal fails and must be dismissed. There would be no order as to costs. ·\n\n(')A.LR. [1965] Cal. 105.\n\nLJB(D)2SCl-5\n\n46 SUPBEllE\n\nCOURT\n\nREPORTS\n\n(1965] 3 8.C.R.\n\nBefore parting with this appeal, however, we would likt> to A • add that appellant No. I has to submit to the penalty prescribed by s. 17(3) apparently because. acting upon the opinion expressed by some of the learned Judges of the Calcutta High Court, he was advised to continue to deposit the rent with the Controller even after the present suit was filed against him. We do not know whether there are many other cases of the same type. In case tllere B are several other cases of this type, that would really mean unjust hardship against tenants who, in substance, have not committed default in the matt.er of payment of rent, and yet would be exposed to the risk of ejectment by virtue of the application of s. 1713). In our opinion, such tenants undoubtedly deserve to be protected against ejectment. We trust the Legislature will consider this matter f' and devise some means of giving appropriate relief to this class of ce.nants.\n\nAppeal dis1nisseli.", "total_entities": 201, "entities": [{"text": "KALURAM ONKARMAL AND ANOTHER", "label": "PETITIONER", "start_char": 0, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "KALURAM ONKARMAL AND ANOTHER", "offset_not_found": false}}, {"text": "BAIDYANAIB GORAIN", "label": "RESPONDENT", "start_char": 33, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "BAIDYANAIB GORAIN", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, J.", "label": "JUDGE", "start_char": 103, "end_char": 122, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "Premises Tenancv Act", "label": "STATUTE", "start_char": 169, "end_char": 189, "source": "regex", "metadata": {}}, {"text": "ss. 17, 21 and 22", "label": "PROVISION", "start_char": 205, "end_char": 222, "source": "regex", "metadata": {"linked_statute_text": "Premises Tenancv Act", "statute": "Premises Tenancv Act"}}, {"text": "s. 13", "label": "PROVISION", "start_char": 556, "end_char": 561, "source": "regex", "metadata": {"linked_statute_text": "The appellant and respondent were the tenant and owner respectively of premises to which the West Bengal Premises Tenancy Act, 1956", "statute": "The appellant and respondent were the tenant and owner respectively of premises to which the West Bengal Premises Tenancy Act, 1956"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 804, "end_char": 809, "source": "regex", "metadata": {"linked_statute_text": "The appellant and respondent were the tenant and owner respectively of premises to which the West Bengal Premises Tenancy Act, 1956", "statute": "The appellant and respondent were the tenant and owner respectively of premises to which the West Bengal Premises Tenancy Act, 1956"}}, {"text": "s. 17(1)", "label": "PROVISION", "start_char": 1193, "end_char": 1201, "source": "regex", "metadata": {"linked_statute_text": "The appellant and respondent were the tenant and owner respectively of premises to which the West Bengal Premises Tenancy Act, 1956", "statute": "The appellant and respondent were the tenant and owner respectively of premises to which the West Bengal Premises Tenancy Act, 1956"}}, {"text": "Siddheswar Paul", "label": "OTHER_PERSON", "start_char": 1675, "end_char": 1690, "source": "ner", "metadata": {"in_sentence": "In the appeal to this Court it was contended that the majority view in Siddheswar Paul's case that s. 22(3) does not apply to cases falling under s. 17(1) was wrong, because, the deposit made by the appellant under s. 21 with the Rent Controller constituted payment of rent by him to the landlord, under s. 22(3); and therefore, there was no scope for invoking s. 17(3) against the appellant inasmuch as the basis of s. 17(3) was that the tenant whose defence was sought to be' strurk out had committed a default in the poyment of rent."}}, {"text": "s. 22(3)", "label": "PROVISION", "start_char": 1703, "end_char": 1711, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(1)", "label": "PROVISION", "start_char": 1750, "end_char": 1758, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 1819, "end_char": 1824, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22(3)", "label": "PROVISION", "start_char": 1908, "end_char": 1916, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(3)", "label": "PROVISION", "start_char": 1965, "end_char": 1973, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(3)", "label": "PROVISION", "start_char": 2021, "end_char": 2029, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 17(1)", "label": "PROVISION", "start_char": 2148, "end_char": 2161, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(1)", "label": "PROVISION", "start_char": 2793, "end_char": 2801, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 2944, "end_char": 2949, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 3420, "end_char": 3425, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 21 and 22", "label": "PROVISION", "start_char": 3448, "end_char": 3461, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 3584, "end_char": 3589, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(3)", "label": "PROVISION", "start_char": 3690, "end_char": 3698, "source": "regex", "metadata": {"statute": null}}, {"text": "N. C. Chatterjee", "label": "OTHER_PERSON", "start_char": 3907, "end_char": 3923, "source": "ner", "metadata": {"in_sentence": "N. C. Chatterjee and D. Goburdhan, for the appellants."}}, {"text": "D. Goburdhan", "label": "LAWYER", "start_char": 3928, "end_char": 3940, "source": "ner", "metadata": {"in_sentence": "N. C. Chatterjee and D. Goburdhan, for the appellants."}}, {"text": "P. K. Chatterjee", "label": "LAWYER", "start_char": 3963, "end_char": 3979, "source": "ner", "metadata": {"in_sentence": "P. K. Chatterjee and D. N. Mukherjee, for the respondent.", "canonical_name": "P. K. Chatterjee"}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 3984, "end_char": 3999, "source": "ner", "metadata": {"in_sentence": "P. K. Chatterjee and D. N. Mukherjee, for the respondent."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 4067, "end_char": 4081, "source": "ner", "metadata": {"in_sentence": "0 The Judgment of the Court was delivered by Gajendragadkar, C.J. Appellant No .. 1, Kaluram Onkarmal, was let into possession of the premises described as holding No.", "canonical_name": "P.B. GAJENDRAGADKAR*"}}, {"text": "Kaluram Onkarmal", "label": "PETITIONER", "start_char": 4107, "end_char": 4123, "source": "ner", "metadata": {"in_sentence": "0 The Judgment of the Court was delivered by Gajendragadkar, C.J. Appellant No .. 1, Kaluram Onkarmal, was let into possession of the premises described as holding No.", "canonical_name": "KALURAM ONKARMAL AND ANOTHER"}}, {"text": "Harbhajan Singh Wasal", "label": "OTHER_PERSON", "start_char": 4241, "end_char": 4262, "source": "ner", "metadata": {"in_sentence": "182H, G.T. Road, Asansol as a monthly tenant under Harbhajan Singh Wasal who was the owner 't>f the said premises."}}, {"text": "Calcutta Nationat\n\nBank Ltd.", "label": "ORG", "start_char": 4427, "end_char": 4455, "source": "ner", "metadata": {"in_sentence": "It appears that in 1953, the Calcutta Nationat\n\nBank Ltd. (now in liquidation) sued the owner Wasal on the original side of the Calcutta High Court on a mortgage."}}, {"text": "Wasal", "label": "OTHER_PERSON", "start_char": 4492, "end_char": 4497, "source": "ner", "metadata": {"in_sentence": "It appears that in 1953, the Calcutta Nationat\n\nBank Ltd. (now in liquidation) sued the owner Wasal on the original side of the Calcutta High Court on a mortgage."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 4526, "end_char": 4545, "source": "ner", "metadata": {"in_sentence": "It appears that in 1953, the Calcutta Nationat\n\nBank Ltd. (now in liquidation) sued the owner Wasal on the original side of the Calcutta High Court on a mortgage."}}, {"text": "K. K. lihose", "label": "OTHER_PERSON", "start_char": 4710, "end_char": 4722, "source": "ner", "metadata": {"in_sentence": "During the proceedings of the said suit, Mr. K. K. lihose was appointed Receiver of the mortgaged pro-\n\nJ!I perties, including the premises in the present suit."}}, {"text": "February 18, 1960", "label": "DATE", "start_char": 4829, "end_char": 4846, "source": "ner", "metadata": {"in_sentence": "0n February 18, 1960, the Receiver put the mortgaged properties to sale and the respondent, Baidyanath Gorain, purchased them."}}, {"text": "Baidyanath Gorain", "label": "RESPONDENT", "start_char": 4918, "end_char": 4935, "source": "ner", "metadata": {"in_sentence": "0n February 18, 1960, the Receiver put the mortgaged properties to sale and the respondent, Baidyanath Gorain, purchased them.", "canonical_name": "BAIDYANAIB GORAIN"}}, {"text": "March 1, 1960", "label": "DATE", "start_char": 5011, "end_char": 5024, "source": "ner", "metadata": {"in_sentence": "The said sale was confirmed by the Calcutta High Court on March 1, 1960."}}, {"text": "2nd April, 1960", "label": "DATE", "start_char": 5277, "end_char": 5292, "source": "ner", "metadata": {"in_sentence": "1 about the same by his letter dated the '2nd April, 1960."}}, {"text": "December 11, 1961", "label": "DATE", "start_char": 5298, "end_char": 5315, "source": "ner", "metadata": {"in_sentence": "On December 11, 1961, the respondent sued appellant No."}}, {"text": "Kaluram Bajranglal", "label": "PETITIONER", "start_char": 5375, "end_char": 5393, "source": "ner", "metadata": {"in_sentence": "2, Kaluram Bajranglal in the First Court of the G .Munsif at Asansol for ejectment."}}, {"text": "First Court of the G .Munsif at Asansol", "label": "COURT", "start_char": 5401, "end_char": 5440, "source": "ner", "metadata": {"in_sentence": "2, Kaluram Bajranglal in the First Court of the G .Munsif at Asansol for ejectment."}}, {"text": "Asansol", "label": "GPE", "start_char": 6681, "end_char": 6688, "source": "ner", "metadata": {"in_sentence": "He urged that the rents had been regularly paid to the owner in ftme before August, 1960, and he pleaded that since the month of August, 1960 when he found that the owner was not prepared to accept the rents from him, he deposited them with the B House Rent Controller, Asansol, from month to month."}}, {"text": "section 21(3)", "label": "PROVISION", "start_char": 6832, "end_char": 6845, "source": "regex", "metadata": {"statute": null}}, {"text": "West Bengal Premises Tenancy Act, 1956", "label": "STATUTE", "start_char": 6853, "end_char": 6891, "source": "regex", "metadata": {}}, {"text": "April 10, 1962", "label": "DATE", "start_char": 7124, "end_char": 7138, "source": "ner", "metadata": {"in_sentence": "The written statement further averred that a the deposit of the monthly rent continued to be made regularly under s. :ll and that the rent for March, 1962 had been duly deposited on April 10, 1962."}}, {"text": "AprH 11, 1962", "label": "DATE", "start_char": 7176, "end_char": 7189, "source": "ner", "metadata": {"in_sentence": "This written statement was filed on AprH 11, 1962. ."}}, {"text": "s. 17(3)", "label": "PROVISION", "start_char": 7269, "end_char": 7277, "source": "regex", "metadata": {"linked_statute_text": "the West Bengal Premises Tenancy Act, 1956", "statute": "the West Bengal Premises Tenancy Act, 1956"}}, {"text": "s. 17(1)", "label": "PROVISION", "start_char": 7467, "end_char": 7475, "source": "regex", "metadata": {"linked_statute_text": "the West Bengal Premises Tenancy Act, 1956", "statute": "the West Bengal Premises Tenancy Act, 1956"}}, {"text": "s. 17(3)", "label": "PROVISION", "start_char": 7566, "end_char": 7574, "source": "regex", "metadata": {"linked_statute_text": "the West Bengal Premises Tenancy Act, 1956", "statute": "the West Bengal Premises Tenancy Act, 1956"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 7695, "end_char": 7700, "source": "regex", "metadata": {"linked_statute_text": "the West Bengal Premises Tenancy Act, 1956", "statute": "the West Bengal Premises Tenancy Act, 1956"}}, {"text": "s. 22(3)", "label": "PROVISION", "start_char": 7816, "end_char": 7824, "source": "regex", "metadata": {"linked_statute_text": "the West Bengal Premises Tenancy Act, 1956", "statute": "the West Bengal Premises Tenancy Act, 1956"}}, {"text": "s. 17(3)", "label": "PROVISION", "start_char": 7972, "end_char": 7980, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22(3)", "label": "PROVISION", "start_char": 7985, "end_char": 7993, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22", "label": "PROVISION", "start_char": 8143, "end_char": 8148, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(1)", "label": "PROVISION", "start_char": 8221, "end_char": 8229, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(3)", "label": "PROVISION", "start_char": 8342, "end_char": 8350, "source": "regex", "metadata": {"statute": null}}, {"text": "G Calcutta High Court", "label": "COURT", "start_char": 8449, "end_char": 8470, "source": "ner", "metadata": {"in_sentence": "In coming to this conclusion, the learned Judge followed a decision of the Division Bench of the G Calcutta High Court in Abdul Majid v. 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{"document_id": "1965_3_354_357_EN", "year": 1965, "text": "THE CALCUTTA TRAMWAYS CO. LTD.\n\nTHE CORPORATION OF CALCUTTA\n\nMarch 12, 1965\n\n[K. SUBBA RAO, J.C. SHAH AND R. S. BACHAWAT, JJ.J B\n\nCakutta Tnnrvways Act (W.B. Act 25 of 1951), s. 5-·.4.greements with .4.rbitration clause-Whether saved.\n\nBy the enactment of Calcutta Tramways Act, 1951, the Government of west Bengal was substituted tor the Corporation of Calcutta\n\n(HesponJent) ln ; arious agreements entered into between the predeccssors-m-interest of the appellant and the predecessors-in-interest of the rtopondcnt, subject to a reservation that any sum payable under the agreements shall be payable by the appellant to the respondent.\n\nAll the agreements contamed an arb.traLon ckuse which provided for refcr.1:1ng aHy u1sputes arising under the agreements to arbitration a1 the prescribed .manner. Disputes arose as regard the track rent. payable by the appeUant to the responuent and the dispute was referr.; d to arb.trat1on in accordance with the terms of the arbitration clause. 'lhe appellant nominated its arbitrator without pcejuciice to its right;, and tiled an application in the High Court, for the determinat.on oi lne que.stion whether there was a valid agreement netween the appellant and respondent. The High Court held that there was an agreement. In appeal by special leave:\n\nHELD: Both the r'ght to the sums payable to the respondent and the proced'1re of arbitration were saved under the Act.\n\nThe proviso to s. 5 of the Act, in terms as well as hy necessary implication brings the subject-matter of the sums payable under the agreements both under the substantive and procedural aspects within the scope of the exception. The substantive right to the payment of rent and the procedural one to have any dispute arising in respect of that rigllt relerred to arb'tration embodied in the agreements are interconnected and are not severable. To preserve the substantive right and to withhold the procedural right to enforce it is to save the\n\nright and deny the remedy, (357. C-D, F-G]\n\nC1viL APPELLATE JurusmcnoN: Civil Appeal No. 245 of 1964. .\n\nAppeal by special leave from the judgment and order dated February 13, 1963, of the Calcutta High Court in Award Case No. 8 of 1963.\n\nA. V. Viswanatha Sastri and D. N. Gupta, for the appellant.\n\nS. T. Desai and P. K. Mukherjee, for the respondent.\n\nThe Judgment of the Court was de!ivered by\n\nSobba Rao, J. On or about October 2, 1879, the Corporation of the town of Calcutta incorporated under Bengal Act IV of 1876\n\ninto an ag!eement in writing with Dillwyn Parrish, A!freoh Parrish and Robmson Souttar, hereinafter called the grantees.\n\nCAL. TRAMWAYS v. CORPORATION OF CALCUTTA (8ubba Rao, J.) 355\n\nwhereunder the Corporation granted to the said grantees the right to construct, maintain and use certain tramways in Calcutta on payment of certain rents as provided in the said agreement. The aoreement contained an arbitration clause which provided for r; ferring any disputes arising under the said agreeme_nt to arbitration in the manner prescribed thereunder. The said agreement further provided in cl. 28 that the words \"the said Corporation\" would include the Corporation and its successors. Different agreements were entered into between the successors of the Corporation of Calcutta and the grantees from time to time, namely, on November 22, 1879, September 2, 1893 and December 9, 1899, and were confirmed by appropriate Acts. In all these agreements the appellant's predecessor-in-interest agreed to pay the rents to the respondent's predecessors-in-interest in respect of the tramways constructed, maintained and used by them. All the said agreements contained an arbitration clause similar to that contained in the first agreement. The Corporation. of Calcutta is now the successor of the properties of the Corporation of the town of Calcutta constituted under the Bengal Act IV of 1876. It was constituted by Bengal Act II of 1888. The appellant, i.e., the Calcutta Tramways Co. Ltd., is the successor or the assignee of the said grantees. On August 30,\n\n1951, the State of West Bengal entered into an agreement with the appellant whereby the Government agreed to purchase the undertaking of the appellant as provided in the said agreement. The said agreement was subject to an Act being passed by the appropriate Legislature ratifying the agreement and giving effect to it. The Calcutta Tramways Act, 1951 (W.B. Act XXV of 1951) was passed and it came into effect on October 18, 1951. Under that Act the Government of ·, vest Bengal was practically substituted for the Corporation of Calcutta under the various agreements subject to a\n\nreservation that any sums payable under the said agreements shall be payable by the appellant to the Corporation. Disputes arose as regards the track rent payabie by the appellant to the Corporation and the dispute was referred to arbitration in accordance with the terms of the\" arbitration clause. Though the parties appointed arbitrators in terms of the arbitration clause of the agreements, the appellant nominated its arbitrator without prejudice to its rights and filed-oo 7, 196_3, an in the Original Side of the Calcutta High Court, mter a/ia, for the determination of the question whether there was a valid arbitration agreement between the appellant and the respondent and for other incidental reliefs\n\nThe application was heared by AN. Ray, J. who held that there an agreement between the appellant and the respondent and that the appellant was a party to the arbitration clauses contained in the relevant agreements, that the respondent could make a reference to arbitration in terms of the said agreements and that the reference to arbitrators was valid, legal and effective. The appellant, by special leave, has filed the present appeal against the said order of\n\nthe High Court.\n\nL/Il(N)3SCI-IO\n\n356 •\n\nSUPREME COURT REPORTS [1965] 3 s.c.R,\n\nMr. A V. Viswanatha Shastri, learned counsel for the appellant, contended that all the rights of the Corporation of Calcutta under the various agreements stood transferred under the Tramways Act, 1951, and vested in the Government of West Bengal except only in regard to the sums payable to the Corporation and\n\nthat, therefore, the Corporation could not rely on the arbitration clauses of the agreements and refer the disputes arising in respect of the sums payable in terms of the said agreements to. arbitration.\n\nThe point raised is in a small compass and turns upon the relevant provisions of the West Bengal Act XXV of 1951, hereinafter called the Act. Under the Act the agreement entered into on August 30, 1951, between the Governor of West Bengal on the one part and the Calcutta Tn, mways Co. Ltd. on the other part was confirmed. Section 3 of the Act says, \"The transfer agreement is hereby confirmed and made binding on the p1rties thereto and the several provisicns thereof shall have effect as if the same had been enacted in this Act.\" \"Section 4 enacts that notwithstanding anything to the contrary in any other law, all the powers and.duties of the Corporation of Calcutta, the Commissioners of the Howrah Municipality, the Commissioners of the South Suburban Municipality and the Commissioners for the New Howrah Bridge with respect to the construction, maintenance, use:, leasing of or otherwise dealing with tramways are transferred to and vested in the Government\". Section 5, which is the crucial section, reads:\n\n(!) The several agreements particulars whereof are set out in the Second Schedule to this Act shall have effect as if the Government were parties thereto in lieu of the respective bodies and persons set out in column 2 of the said Schedule and any reference in any such agreement to any of such bodies or persons shall unless the subject-matter or the context otherwise requires be deemed to be a reference to the Government:\n\nProvided that any sums payable under any such agreement to any of such bodies or persons shall ccntinue to. be payable as if this Act had not been passed.\n\nThe Second Schedule contains a list of the titles of the various agreements mentioned by us earlier. Under s. 5 of the Act the Government is statutorily substituted for the respondent or its predecessors-in-interest in the various agreements stated supra. The fiction is a well defined one. The Government replaces the Corporation and its predecessors-in-interest as a party to the agreements unless the subject-matter or the-context otherwise requires. The natural presumption is that but for the proviso the enacting part of\n\nthe section wonld have inducted the subject-matter of the proviso also. The proviso tc s. 5 saves from the operation of the substantive section the sums payable under any such agreements to any\n\nsuch bodies mentioned therein: it excludes the operation of the\n\nCAL. TRAMWAYS v. CORPORATION OF CALCUTTA (SubbaRao, J.) 357\n\nfiction in respect of such sums payable. In respect of the said sums payable the agreements entered into with the said bodies will remain intact as if the Act had not been passed; that is to say, the respondent would still continue to be a party to the said agreements for the said purpose. The relevant agreements provided for the recovery of the rents and also for the procedure for the recovery of the sums so payable in accordance with the terms of the arbitration clauses of the agreements. Had not the Act been passed and had the Government nci been substituted in the place of the Corporation, it cannot be denied that the Corporation, if a dispute arose in regard to the rent, could have referred the dispute to arbitration.\n\nThe substantive right to the payment of rent and the procedural one\n\nto have any dispute arising in respect of that right referred to arbitration embodied in the agreements are interconnected and are not severable. To preserve the substantive right and to withhold the procedural right to enforce it is to save the right and to deny the remedy. To accept the contention of the appellant is to make out a new agreement between the parties in respect of the sums payable.\n\nThe acceptance of this suggestion compels the Ccrporation to give\n\nup its agreed remedy. The alternative suggestion, namely, that in respect of the amounts payable to the Corporation the arbitration clauses of the agreements could be enforced by the Government against the appellant introduces an incongruity. While the dispute would be between the appellant and the Corporation, the arbitration would be between the appellant and a third party. The argument that the Goveroment would ]Je acting as a trustee of the Corporation in respect of the sums payable to the Corporation is not supported by any of the provisions of the Act. A fair construction of the proviso to s. 5 of the Act removes all the anomalies.\n\nFurther, in the substantive part of s. 5 of the Act the fiction takes effect unless the subject-matter or the context otherwise requires.\n\nThe proviso in terms as well as by necessary implicatic-n brings the subject-matter of the sums payable under the agreements under. the and .Pro:edural aspects within the scope of the said exceptton. The fiction m s. 5 of the Act shall yield. to that extent, to the terms of the c_ontract. On such a construction we hold as we have indicated earlier, that both the right to the said payable and the procedure of arbitration are saved thereunder.\n\nIn the result, we agree with the view expressed by the High Court and dismiss the appeal with costs.\n\nAppeal dismist1ed.", "total_entities": 55, "entities": [{"text": "THE CALCUTTA TRAMWAYS CO. LTD", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "THE CALCUTTA TRAMWAYS CO. LTD", "offset_not_found": false}}, {"text": "CORPORATION OF CALCUTTA", "label": "ORG", "start_char": 36, "end_char": 59, "source": "ner", "metadata": {"in_sentence": "THE CORPORATION OF CALCUTTA\n\nMarch 12, 1965\n\n[K. SUBBA RAO, J.C. SHAH AND R. S. BACHAWAT, JJ.J B\n\nCakutta Tnnrvways Act (W.B. Act 25 of 1951), s. 5-·.4.greements with .4.rbitration clause-Whether saved."}}, {"text": "March 12, 1965", "label": "DATE", "start_char": 61, "end_char": 75, "source": "ner", "metadata": {"in_sentence": "THE CORPORATION OF CALCUTTA\n\nMarch 12, 1965\n\n[K. SUBBA RAO, J.C. SHAH AND R. S. BACHAWAT, JJ.J B\n\nCakutta Tnnrvways Act (W.B. Act 25 of 1951), s. 5-·.4.greements with .4.rbitration clause-Whether saved."}}, {"text": "K. SUBBA RAO, J", "label": "JUDGE", "start_char": 78, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 94, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ", "label": "JUDGE", "start_char": 106, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Cakutta Tnnrvways Act", "label": "STATUTE", "start_char": 130, "end_char": 151, "source": "regex", "metadata": {}}, {"text": "s. 5", "label": "PROVISION", "start_char": 175, "end_char": 179, "source": "regex", "metadata": {"linked_statute_text": "Cakutta Tnnrvways Act", "statute": "Cakutta Tnnrvways Act"}}, {"text": "By the enactment of Calcutta Tramways Act, 1951", "label": "STATUTE", "start_char": 236, "end_char": 283, "source": "regex", "metadata": {}}, {"text": "Government of west Bengal", "label": "ORG", "start_char": 289, "end_char": 314, "source": "ner", "metadata": {"in_sentence": "By the enactment of Calcutta Tramways Act, 1951, the Government of west Bengal was substituted tor the Corporation of Calcutta\n\n(HesponJent) ln ; arious agreements entered into between the predeccssors-m-interest of the appellant and the predecessors-in-interest of the rtopondcnt, subject to a reservation that any sum payable under the agreements shall be payable by the appellant to the respondent."}}, {"text": "tor the Corporation of Calcutta", "label": "RESPONDENT", "start_char": 331, "end_char": 362, "source": "metadata", "metadata": {"canonical_name": "THE CORPORATION OF CALCUTTA", "offset_not_found": false}}, {"text": "s. 5", "label": "PROVISION", "start_char": 1431, "end_char": 1435, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 2150, "end_char": 2169, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated February 13, 1963, of the Calcutta High Court in Award Case No."}}, {"text": "A. V. Viswanatha Sastri", "label": "LAWYER", "start_char": 2200, "end_char": 2223, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri and D. N. Gupta, for the appellant.", "canonical_name": "A. V. Viswanatha Sastri"}}, {"text": "D. N. Gupta", "label": "LAWYER", "start_char": 2228, "end_char": 2239, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri and D. N. Gupta, for the appellant."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 2261, "end_char": 2272, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and P. K. Mukherjee, for the respondent."}}, {"text": "P. K. Mukherjee", "label": "LAWYER", "start_char": 2277, "end_char": 2292, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and P. K. Mukherjee, for the respondent."}}, {"text": "Sobba Rao", "label": "JUDGE", "start_char": 2359, "end_char": 2368, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was de!ivered by\n\nSobba Rao, J. On or about October 2, 1879, the Corporation of the town of Calcutta incorporated under Bengal Act IV of 1876\n\ninto an ag!eement in writing with Dillwyn Parrish, A!freoh Parrish and Robmson Souttar, hereinafter called the grantees."}}, {"text": "Calcutta", "label": "GPE", "start_char": 2433, "end_char": 2441, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was de!ivered by\n\nSobba Rao, J. On or about October 2, 1879, the Corporation of the town of Calcutta incorporated under Bengal Act IV of 1876\n\ninto an ag!eement in writing with Dillwyn Parrish, A!freoh Parrish and Robmson Souttar, hereinafter called the grantees."}}, {"text": "Bengal Act IV of 1876", "label": "STATUTE", "start_char": 2461, "end_char": 2482, "source": "regex", "metadata": {}}, {"text": "Dillwyn Parrish", "label": "OTHER_PERSON", "start_char": 2518, "end_char": 2533, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was de!ivered by\n\nSobba Rao, J. On or about October 2, 1879, the Corporation of the town of Calcutta incorporated under Bengal Act IV of 1876\n\ninto an ag!eement in writing with Dillwyn Parrish, A!freoh Parrish and Robmson Souttar, hereinafter called the grantees."}}, {"text": "A!freoh Parrish", "label": "OTHER_PERSON", "start_char": 2535, "end_char": 2550, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was de!ivered by\n\nSobba Rao, J. On or about October 2, 1879, the Corporation of the town of Calcutta incorporated under Bengal Act IV of 1876\n\ninto an ag!eement in writing with Dillwyn Parrish, A!freoh Parrish and Robmson Souttar, hereinafter called the grantees."}}, {"text": "Robmson Souttar", "label": "OTHER_PERSON", "start_char": 2555, "end_char": 2570, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was de!ivered by\n\nSobba Rao, J. On or about October 2, 1879, the Corporation of the town of Calcutta incorporated under Bengal Act IV of 1876\n\ninto an ag!eement in writing with Dillwyn Parrish, A!freoh Parrish and Robmson Souttar, hereinafter called the grantees."}}, {"text": "cl. 28", "label": "PROVISION", "start_char": 3071, "end_char": 3077, "source": "regex", "metadata": {"linked_statute_text": "Bengal Act IV of 1876", "statute": "Bengal Act IV of 1876"}}, {"text": "November 22, 1879", "label": "DATE", "start_char": 3306, "end_char": 3323, "source": "ner", "metadata": {"in_sentence": "Different agreements were entered into between the successors of the Corporation of Calcutta and the grantees from time to time, namely, on November 22, 1879, September 2, 1893 and December 9, 1899, and were confirmed by appropriate Acts."}}, {"text": "September 2, 1893", "label": "DATE", "start_char": 3325, "end_char": 3342, "source": "ner", "metadata": {"in_sentence": "Different agreements were entered into between the successors of the Corporation of Calcutta and the grantees from time to time, namely, on November 22, 1879, September 2, 1893 and December 9, 1899, and were confirmed by appropriate Acts."}}, {"text": "December 9, 1899", "label": "DATE", "start_char": 3347, "end_char": 3363, "source": "ner", "metadata": {"in_sentence": "Different agreements were entered into between the successors of the Corporation of Calcutta and the grantees from time to time, namely, on November 22, 1879, September 2, 1893 and December 9, 1899, and were confirmed by appropriate Acts."}}, {"text": "Bengal Act II of 1888", "label": "STATUTE", "start_char": 3891, "end_char": 3912, "source": "regex", "metadata": {}}, {"text": "Calcutta Tramways Co. Ltd.", "label": "ORG", "start_char": 3939, "end_char": 3965, "source": "ner", "metadata": {"in_sentence": "The appellant, i.e., the Calcutta Tramways Co. Ltd., is the successor or the assignee of the said grantees."}}, {"text": "August 30,\n\n1951", "label": "DATE", "start_char": 4025, "end_char": 4041, "source": "ner", "metadata": {"in_sentence": "On August 30,\n\n1951, the State of West Bengal entered into an agreement with the appellant whereby the Government agreed to purchase the undertaking of the appellant as provided in the said agreement."}}, {"text": "State of West Bengal", "label": "ORG", "start_char": 4047, "end_char": 4067, "source": "ner", "metadata": {"in_sentence": "On August 30,\n\n1951, the State of West Bengal entered into an agreement with the appellant whereby the Government agreed to purchase the undertaking of the appellant as provided in the said agreement."}}, {"text": "Calcutta Tramways Act, 1951", "label": "STATUTE", "start_char": 4361, "end_char": 4388, "source": "regex", "metadata": {}}, {"text": "October 18, 1951", "label": "DATE", "start_char": 4450, "end_char": 4466, "source": "ner", "metadata": {"in_sentence": "The Calcutta Tramways Act, 1951 (W.B. Act XXV of 1951) was passed and it came into effect on October 18, 1951."}}, {"text": "Government of ·, vest Bengal", "label": "ORG", "start_char": 4487, "end_char": 4515, "source": "ner", "metadata": {"in_sentence": "Under that Act the Government of ·, vest Bengal was practically substituted for the Corporation of Calcutta under the various agreements subject to a\n\nreservation that any sums payable under the said agreements shall be payable by the appellant to the Corporation."}}, {"text": "Corporation of Calcutta", "label": "ORG", "start_char": 4552, "end_char": 4575, "source": "ner", "metadata": {"in_sentence": "Under that Act the Government of ·, vest Bengal was practically substituted for the Corporation of Calcutta under the various agreements subject to a\n\nreservation that any sums payable under the said agreements shall be payable by the appellant to the Corporation."}}, {"text": "AN. Ray", "label": "JUDGE", "start_char": 5362, "end_char": 5369, "source": "ner", "metadata": {"in_sentence": "Though the parties appointed arbitrators in terms of the arbitration clause of the agreements, the appellant nominated its arbitrator without prejudice to its rights and filed-oo 7, 196_3, an in the Original Side of the Calcutta High Court, mter a/ia, for the determination of the question whether there was a valid arbitration agreement between the appellant and the respondent and for other incidental reliefs\n\nThe application was heared by AN."}}, {"text": "A V. Viswanatha Shastri", "label": "LAWYER", "start_char": 5880, "end_char": 5903, "source": "ner", "metadata": {"in_sentence": "R,\n\nMr. A V. Viswanatha Shastri, learned counsel for the appellant, contended that all the rights of the Corporation of Calcutta under the various agreements stood transferred under the Tramways Act, 1951, and vested in the Government of West Bengal except only in regard to the sums payable to the Corporation and\n\nthat, therefore, the Corporation could not rely on the arbitration clauses of the agreements and refer the disputes arising in respect of the sums payable in terms of the said agreements to.", "canonical_name": "A. V. Viswanatha Sastri"}}, {"text": "Corporation of Calcutta under the various agreements stood transferred under the Tramways Act, 1951", "label": "STATUTE", "start_char": 5977, "end_char": 6076, "source": "regex", "metadata": {}}, {"text": "Government of West Bengal", "label": "ORG", "start_char": 6096, "end_char": 6121, "source": "ner", "metadata": {"in_sentence": "R,\n\nMr. A V. Viswanatha Shastri, learned counsel for the appellant, contended that all the rights of the Corporation of Calcutta under the various agreements stood transferred under the Tramways Act, 1951, and vested in the Government of West Bengal except only in regard to the sums payable to the Corporation and\n\nthat, therefore, the Corporation could not rely on the arbitration clauses of the agreements and refer the disputes arising in respect of the sums payable in terms of the said agreements to."}}, {"text": "Bengal Act XXV of 1951", "label": "STATUTE", "start_char": 6483, "end_char": 6505, "source": "regex", "metadata": {}}, {"text": "August 30, 1951", "label": "DATE", "start_char": 6579, "end_char": 6594, "source": "ner", "metadata": {"in_sentence": "Under the Act the agreement entered into on August 30, 1951, between the Governor of West Bengal on the one part and the Calcutta Tn, mways Co. Ltd. on the other part was confirmed."}}, {"text": "West Bengal", "label": "GPE", "start_char": 6620, "end_char": 6631, "source": "ner", "metadata": {"in_sentence": "Under the Act the agreement entered into on August 30, 1951, between the Governor of West Bengal on the one part and the Calcutta Tn, mways Co. Ltd. on the other part was confirmed."}}, {"text": "Calcutta Tn, mways Co. Ltd.", "label": "ORG", "start_char": 6656, "end_char": 6683, "source": "ner", "metadata": {"in_sentence": "Under the Act the agreement entered into on August 30, 1951, between the Governor of West Bengal on the one part and the Calcutta Tn, mways Co. Ltd. on the other part was confirmed."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 6717, "end_char": 6726, "source": "regex", "metadata": {"linked_statute_text": "Bengal Act XXV of 1951", "statute": "Bengal Act XXV of 1951"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 6928, "end_char": 6937, "source": "regex", "metadata": {"linked_statute_text": "Bengal Act XXV of 1951", "statute": "Bengal Act XXV of 1951"}}, {"text": "Howrah Municipality", "label": "GPE", "start_char": 7092, "end_char": 7111, "source": "ner", "metadata": {"in_sentence": "Section 4 enacts that notwithstanding anything to the contrary in any other law, all the powers and.duties of the Corporation of Calcutta, the Commissioners of the Howrah Municipality, the Commissioners of the South Suburban Municipality and the Commissioners for the New Howrah Bridge with respect to the construction, maintenance, use:, leasing of or otherwise dealing with tramways are transferred to and vested in the Government\"."}}, {"text": "South Suburban Municipality", "label": "GPE", "start_char": 7138, "end_char": 7165, "source": "ner", "metadata": {"in_sentence": "Section 4 enacts that notwithstanding anything to the contrary in any other law, all the powers and.duties of the Corporation of Calcutta, the Commissioners of the Howrah Municipality, the Commissioners of the South Suburban Municipality and the Commissioners for the New Howrah Bridge with respect to the construction, maintenance, use:, leasing of or otherwise dealing with tramways are transferred to and vested in the Government\"."}}, {"text": "Section 5", "label": "PROVISION", "start_char": 7363, "end_char": 7372, "source": "regex", "metadata": {"linked_statute_text": "Bengal Act XXV of 1951", "statute": "Bengal Act XXV of 1951"}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 7478, "end_char": 7493, "source": "regex", "metadata": {"linked_statute_text": "Bengal Act XXV of 1951", "statute": "Bengal Act XXV of 1951"}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 7999, "end_char": 8014, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 8102, "end_char": 8106, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 8610, "end_char": 8614, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 10719, "end_char": 10723, "source": "regex", "metadata": {"linked_statute_text": "Je acting as a trustee of the Corporation in respect of the sums payable to the Corporation is not supported by any of the provisions of the Act", "statute": "Je acting as a trustee of the Corporation in respect of the sums payable to the Corporation is not supported by any of the provisions of the Act"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 10799, "end_char": 10803, "source": "regex", "metadata": {"linked_statute_text": "Je acting as a trustee of the Corporation in respect of the sums payable to the Corporation is not supported by any of the provisions of the Act", "statute": "Je acting as a trustee of the Corporation in respect of the sums payable to the Corporation is not supported by any of the provisions of the Act"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 11116, "end_char": 11120, "source": "regex", "metadata": {"linked_statute_text": "Je acting as a trustee of the Corporation in respect of the sums payable to the Corporation is not supported by any of the provisions of the Act", "statute": "Je acting as a trustee of the Corporation in respect of the sums payable to the Corporation is not supported by any of the provisions of the Act"}}]}
{"document_id": "1965_3_358_363_EN", "year": 1965, "text": "VDAY SINGH\n\nSTATE OF MAHARASHTRA\n\nMarch 12, 1965\n\n[K. SUBBA RAO, J. C. SHAH AND R; S .. BACHAWAT; JJ.J\n\nBomba11 Prohibition Act, 1949 25 of 1949), _24A, 66 and. 85(1)-Medicinal. Preparation containing alcohol-Drinking not fOT'\n\nintoxication-Burden of proof.\n\nThe appellant, drove a jeep at an excessive speed and dashed1 against a wall. In. the jeep was also a bottle_ with a label on it as \"Tinctur(' Zingeberis\". On medical exam1nat1on the appellant \\vas found to l:e intoxicated. He was prosecuted under ss. 6il(ll(b) and. 85(1)(1), (2) an.1 (:l) of the Bombay Prohibition Act, 1949; the Magistrate conv'.cted him under the aforesaid sections and sentenced him under ss. 66(l)(b) and 85(1) of the Act. On appeal the Sessions Judge\n\nacquitted the appellant under s. 66(l)(b) but confirmed the sentence\n\nunder s. 8(,(l )(1 ). The respondent filed an appeal against the acquittal and the appellant filed a revision against the conviction, which the High Court heard together and allowed the respondent's appealand dismissed the revision of the appellant. In appeal by certificate;\n\nHELD . Whatever meaning may be given to the expression \"drunk\", in this case there was clear evidence that the 3ppellant had taken the drink for the purpose of intoxication and not for medication\n\nand that under the influenee of drink he had rashly driven his Jeep.\n\nHe was drunk and was, therefore, .incapable of taking care of himself. (363 G]\n\nIf a persoTl consumes liquor, i.e. any liquid consisting of or taining akohol. he commits an offence under s. 66(1) of the Act and, therefore, is liable to be convicted thereunder. But by reason of s .. 24A(2) of the Act, if it is established that the liquor consumed is contained in any rnedieinal preparation which is unfit for use as intoxicating l'quor, the consumption of such liquor is not an o!Ience under the Act, for the Act itself does not apply to such medicinal preparation.\n\n[360 B, CJ\n\nIn terms of s. 66(2) of the Act, the burden of proving that the. liquor cons111ned vvas a medicinal preparation alcohol, the cnnsumpti 1Jn of ¥:hich \\Vas not in contravention of the Act etc., or the\n\nrules made thereunder, shifted to the accused. (361 E]\n\nIn this case not only the accused failed to discharge the burden so sh'fted to him by the statute; but the prosecution had also lished that the said medicinal preparation was fit for use as an intoxicating liquor. (361 GJ\n\nState of Bomba11 (Now Gujarat) v. Naraindas Mangila! Agarwal, (1962] Supp, 1 S.C.R. 15, held inapplicable.\n\nCFJMINAL APPELLATE JURISDICTION: Criminal Appeal No. 154 of 1963.\n\nAppeal from the judgment and order dated May 2, 1961 of the Bombay High Court (Nagpur Bench) at Nagpur in Criminal Appeal No. 234 of 1962. ·\n\nM. N. Phfldke and Naunit Lal, for the appellant..\n\n0. P. Rana, B. R. G. K. Achar and R. H. Dhebar, for the respondent.\n\nA The Judgment of the Court was delivered by\n\n. B\n\nSubba Rao, J. This appeal by certificate issued by the High Court of Judicature at Bombay raises the construction of some of the provisions of the Bombay Proh1b11ion Act, 1949, hereinafter called the Act .\n\n' On June 12, 1961, Vijaysingh, the appellant, and one Namdeo Shinde drove in a jeep at an excessive speed and dashed it against the wall of the office of the District Superintendent of Police. Alcola.\n\nBoth of them appeared to be intoxicated. In the jeep there was also a bottle with a label on it as \"Tincture Zingeberis\". Vijaysingh was prosecuted before the Judicial Magistrate, First Class, Alcola, under\n\ns. 66(1)(b) and s. 85(1) (!), (2), and (3) of the Act. The said Magistrate convicted the appellant both under s. 66(l)(b) and s. 8511)(1),\n\n(2) and (3) of the Act, but sentenced him only under ss. 66(!)\\b) and\n\n85(1)(!) of the Act. On appeal, the learned Sessions Judge, Alcola, acquitted the appellant under s. 66(!)(b) of the Act, but confirmed the conviction and sentence under s. 85(1)(1) thereof. Against the judgment of the Sessions Judge acquitting the appellant under s. 66{l)(b) of the Act the State of Maharashtra preferred an appeal to the High Court; and against the order of conviction under s. 35(]) (!) of the Act the appellant preferred a revision to the High Court.\n\nThe High Court heard both. the matters together and allowed the appeal filed by the State and dismissed the revision petition preferred by the accused-appellant. In the result it set aside the order of acquittal made by the Sessions Judge under s. 66(l)(b) of the Act and sentenced the accused to rigorous imprisonment for 3 months and a fine of Rs. 500 and confirmed the conviction and sentence of the accused under s. 85(1)(!) of the Act. Hence the present appeal.\n\n4arned counsel for the appellant raised before us several contentions for dislodging the judgment of the High Court. We shall now proceed to deal with them in the order in which they were addressed to us.\n\nThe first contention may be put thus. Under s. 66(2) of the Act all that an accused need prove is that he has consumed a medical preparation; if he established that, the burden of proving that the medicinal preparation is fit for use as an intoxicating liquor shifts to the prosecuti<Jn. In the present case the accused has established that he had taken \"tincture zingeberis\", which is a medicinal\n\npreparation, but the prosecution failed to prove that it was fit for use as an intoxicating liquor.\n\nTo appreciate this contention it is necessary to notice the relevant provisions. Under s. 66(1) of the Act, \"Whoever in contravention of the provisions of this Act, or of any rule, regulation or order made ......... consumes ......... any intoxicant shall, on conviction, be punished for a first offence, with imprisonment for a term whlch may extend to six months and with fine which may extend\n\nSUPREME COURT REPORTS\n\n[1965] 3 S.C.R.\n\nto one thousand rupees.\" \"Intoxicant\" is defined to mean, among A other things, any liquor; and \"liquor\" is defined to include, among others, all liquids consisting of or containing alcchol. Under s. l 3(b),\n\nno person shall consume or use liquor. Relevant part of s. 24A enacts that nothing in Ch. III shall be deemed to apply to any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor. The effect of these sections, in so far as they arc B material for the present case, is that if a pe, rson consumes liquor, i.e., any liquid consisting of or containing alcohol, he commits an offence under s. 66(1) of the Act and, therefore, is , liable to be convicted thereunder. But by reason of s. 24A(2) of the Act if it is established that the liquor consumed is contained in any medicinal\n\npreparation which 'is unfit for. use as intoxicating liquor, the con- C sumption of such liquor is not an offence under th.e Act, for the Act itself does not apply to such medicinal preparations. We shall revert to the question of burden of proof a little later.\n\nThe facts found in this case may now be noticed. The accused D says that he consumed \"tincture zingeberis\" and produced before the police a sample bottle out of which he says he had consumed tincture zingeberis. A sample of the liquid was an<ilysed by the Chemical Analyser. His report shows that the liquor was a weak Ginger Tincture B.P. 1958- (Tincture Zingeberis- Mitis); absolute alcohol content was 89.1 per cent. VIV. The report further states E as regards alcohol contents of the liquid that the sample contained 90.0 per cent. of VIV of ethyl alcohol though the B.P. limits were 86 to 90 per cent. V /V. \"The analysis has also given the quantity of total solids as 0.62 per cent. per ml. at 20 degrees to be 0.825 g.\" In the opinion of the Chemical Analyser, the sample complied with pharmacopical specifications. On the basis of the F report, the High Court found that the accused consumed a medicinal preparation which was listed in the British Pharmacopia, 1958 edition, and which had alcohol contents to the extent of 90 per cent. V /V of ethyle alcohol. The Chemical Analyser to the Government of Maharashtra examined the sample blood taken from the body of the accused by applying \"modified Cavette's method\" and G gave his report to the effect that the sample blood of the accused contained 0.207 mg. p.c. w /v of ethvl alcohcl. The High Court also found on the expert evidence that blood alcohol concentration on taking a normal dose of tincture zingeberis mitis would be nbout 0.007 per cent. W /V and the accused should have taken roughly about 125 c.c. of tincture zingeberis to induce an alcohol content of H 0.207 per cent. found in his blood by the Chemicd Analyser. On the basis of the evidence of Dr. Deshmukh, the High Court also found that Tincture Zingeberis Mitis was a which might be consumed for intoxication and that intoxication would not be accompanied by any other harmful effects. On the ether hand the accused has not adduced any evidence that the said medicine is a medicinal preparation unfit for uoe as intoxicating liquor.\n\nThe question whether the prosecution has discharged its burden of proof in this case will have to be considered on the basis of the said facts found by the High Court. Section 66(2) of the Act, which bears on the question of burden of proof, reads thus :\n\n\"Subject to the provisions of sub-section (3), where in any trial of an offence under clause (b) of sub-section (!) for the consumption of an intoxicant, it is alleged that the accused person consumed liquor, and it is proved that the concentration of alcohol in the blood of the accused person is not less than 0.05 per cent. weight in volume then the burden of proving that the liquor consumed was a medicinal or toilet preparation ...... containing alcohol, the consumption of which is not in contravention of the Act or any rules, regulations or orders made thereunder, shall be upon the accused person, and the Court shall in the absence of such proof presume the contrary.\"\n\nIt has been proved in this case that the accused person consumed liquor and that the concentration of alcohol in his blood was more than 0.05 per cent. weight in volume. So in terms of sub-s. (2) of s. 66 of the Act the burden of proving that the liquor consumed w&s a medicinal preparation containing alcohol, the consumption of which was not in contravention of the Act etc. or the rules made\n\nthereunder, shifted to the accused. He could have discharged this burden by proving, inter a/ia, that the medicinal preparation containing alcohol which he had taken was unfit for use as an intoxicating'liquor; if so much had been established, as under s. 24A of the Act, the Act itself does not apply to such medicinal preparations, the accused would not have committed any offence under the Act. The High Court found that the accused had not placed any material to prove that tincture zingeberis mitis was unfit for use as an intoxicating liquor; indeed, it accepted the evidence adduced on\n\nbehalf of the prosecution and held that it was fit for use as an intoxicating liquor. In this case not only the accused failed to discharge the burden so shifted to him by the statute, but the prosecution had also established thllt the said medicinal preparation was fit for use as an intoxicating liquor. Reliance is placed by the learned counsel for the appellant on the decision of this Court in The State of Bombay (now Gujarat) v. Narandas Mangilal Agarwal(') wherein it was held, in the circumstances of the case, that it was for the State to prove that the medicinal preparation was not unfit for use\n\nas intoxicating liquor. But that decision was given on thl' relevant provisions of the Act before it was amended by the Bombay Act XH of 1959. Section 66(2) was added by the said Act which in\n\nexpress terms states that in the circumstances mentioned in the sub-section the burden of proof shifts to the accused. The said\n\n('J [1962] Supp. 1 S.C.R. 15.\n\n362 BUP!lEME COURT BEPORTB\n\n(1965) 3 B.C.8.\n\ndeCision cannot, therefore, be invoked in the changed circumstances.\n\nThe present case falls to be decided on the interpretation of s. 66(2) of the Act. We, therefore, hold that the High Court came to the correct conclusion on the question of burden of proof and gave its finding on the evidence adduced before it.\n\nIt was then argued that even if the burden of proof in the circumstances of the case shifted to the accused that burden was discharged by reason of s. 6A of the Act. Under s. 6A of the Act for the purpose of enabling the State Government to determine\n\nwhether any medicinal preparation containing alcohol is an article fit for use as intoxicating liquor, the State Government shall constitute a Board of Experts; and under sub-s. (6) thereof, it shall be the duty of the Board to advise the State Government on the question whether any article mentioned in sub-s. (1) of s. 6A is fit for use as. intoxicating liquor and upon determination of the State Government that it is so fit, sucharticle shall, until the contrary is\n\nproved, be. presumed to be fit for use as intoxicating liquor. Under sub-s. (7) thereof, \"Until the State Government has determined as aforesaid any article mentioned in sub-section (I) to be fit for use as intoxicatir.:g liquor, every such article shall be deemed to be unfit for such use.\" On the basis of this section, the argument proceeded that the State Government did not determine under s. 6A of the Act that 'Tincture Zingeberis Mitis' was fit for use as intoxicating liquor and, therefore, _the said article shall be deemed to be unfit for such use, with the result the burdtm which shifted to the accused under s. 66(2) of the Act was statutorily discharged. There i5 considerable force in this argument; but unfortunately this point was raised only for the first time before us. There is nothing on the record to show that the State Government has not decided that the said article is fit for use as intoxicating liquor. If this question had been raised at the appropriate time, the relevant material would have been placed before the Court. Even though the argument was raised no attempt was made even after the filing of the appeal or even at the time of the arguments to place the relevant material before this Court to sustain the said legal argument. We cannot, therefore, permit the appellant to raise the point for the first time before us, particularly when there is utter lack of factual basis.\n\nThe next argument of the learned counsel that the High Court came to the conclusion it did on irrelevant evidence has no force It is said that the prosecution did not adduce any evidence to prove that \"Tincture Zingeberis Mitis\" was not unfit for use as an\n\nintoxicating liquor. To state it differently, the argument is that unless it was established by the prosecution that the consumption of a medicinal_ preparation had no harmfill effects on the health of the person consuming it, it could not be said that it was not unfit for use as intoxicating liquor. In the present case the High Court found on the evidence that \"Tincture Zingeberis Mitis\" was a preparation\n\nVIJAY SINGHV. STATE OF MAHARASHTRA (SubbaRao, J.) 363\n\nwhich might be consumed for intoxication and that intoxication would not be accompanied by any harmful effects. This contention,\n\ntherefore, must be rejected.\n\nThe last argument turns upon the provisions of s. 85(1)(1) and\n\n(2) of the Act. The relevant part of s. 85 reads:\n\n(I) Whoever in any street or thoroughfare or public place\n\nor in any place to which the public have or are permitted to have access-\n\n(1) is drunk and incapable of taking care of himself,\n\n• • • • • c\n\n(2) In prosecution for an offence under sub-section (I), it\n\nshall be presumed until the contrary is proved that the person accused of the said offence has drunk liquor or consumed any other intoxicant for the purpose of being intoxicated and not for a medicinal purpose.\n\nD It was contended that s. 85 of the Act laid down two conditions, namely, that the accused should have b\"en drunk and incapable of taking care of himself and also that he should have taken the drink for the purpose of being intoxicated and not for a medicinal purpose. This conclusion, the argument proc;; eded, would E . flow from sub-s. (2), for otherwise, so it was said, the presumptive\n\nrule of evidence enacted in sub-s. (2) would be unnecessary and even irrelevant if the purpose mentioned therein was not an ingredient of the offence.\n\nThis raises an interesting question of law, but, in view of the finding of fact arrived at by the High Court it does not call for a decision in this appeal. Assuming without deciding that the argument has some substance, the finding of the High Court satisfies the test suggested by the argument. Whatever meaning is given to the expression \"drunk\", in this case there is clear evidence that the accused had taken the drink for the purpose of intoxication and not for medication and that under the influence of drink he had rashly driven his jeep into the office of the District Superintendent of Police and dashed it against the wall of that office. He was drunk and was, therefore, incapable of taking care of himself. On the facts found the High Court rightly held that the accused committed an offence under s. 85(1) of the Act.\n\nIn the result, the appeal fails and is dismissed.\n\nAppeal dismissed.", "total_entities": 60, "entities": [{"text": "VDAY SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "VDAY SINGH", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA", "label": "RESPONDENT", "start_char": 12, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "March 12, 1965", "label": "DATE", "start_char": 34, "end_char": 48, "source": "ner", "metadata": {"in_sentence": "VDAY SINGH\n\nSTATE OF MAHARASHTRA\n\nMarch 12, 1965\n\n[K. SUBBA RAO, J. C. SHAH AND R; S .. BACHAWAT; JJ.J\n\nBomba11 Prohibition Act, 1949 25 of 1949), _24A, 66 and."}}, {"text": "K. 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N. Phfldke", "label": "LAWYER", "start_char": 2725, "end_char": 2738, "source": "ner", "metadata": {"in_sentence": "M. N. Phfldke and Naunit Lal, for the appellant..\n\n0."}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 2743, "end_char": 2753, "source": "ner", "metadata": {"in_sentence": "M. N. Phfldke and Naunit Lal, for the appellant..\n\n0."}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 2779, "end_char": 2786, "source": "ner", "metadata": {"in_sentence": "P. Rana, B. R. G. K. Achar and R. H. Dhebar, for the respondent."}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 2788, "end_char": 2805, "source": "ner", "metadata": {"in_sentence": "P. Rana, B. R. G. K. Achar and R. H. Dhebar, for the respondent."}}, {"text": "R. H. Dhebar", "label": "LAWYER", "start_char": 2810, "end_char": 2822, "source": "ner", "metadata": {"in_sentence": "P. Rana, B. R. G. K. Achar and R. H. Dhebar, for the respondent."}}, {"text": "B\n\nSubba Rao", "label": "JUDGE", "start_char": 2893, "end_char": 2905, "source": "ner", "metadata": {"in_sentence": "B\n\nSubba Rao, J. This appeal by certificate issued by the High Court of Judicature at Bombay raises the construction of some of the provisions of the Bombay Proh1b11ion Act, 1949, hereinafter called the Act ."}}, {"text": "High Court of Judicature at Bombay", "label": "COURT", "start_char": 2951, "end_char": 2985, "source": "ner", "metadata": {"in_sentence": "B\n\nSubba Rao, J. This appeal by certificate issued by the High Court of Judicature at Bombay raises the construction of some of the provisions of the Bombay Proh1b11ion Act, 1949, hereinafter called the Act ."}}, {"text": "Vijaysingh", "label": "PETITIONER", "start_char": 3123, "end_char": 3133, "source": "ner", "metadata": {"in_sentence": "' On June 12, 1961, Vijaysingh, the appellant, and one Namdeo Shinde drove in a jeep at an excessive speed and dashed it against the wall of the office of the District Superintendent of Police.", "canonical_name": "Vijaysingh"}}, {"text": "Namdeo Shinde", "label": "OTHER_PERSON", "start_char": 3158, "end_char": 3171, "source": "ner", "metadata": {"in_sentence": "' On June 12, 1961, Vijaysingh, the appellant, and one Namdeo Shinde drove in a jeep at an excessive speed and dashed it against the wall of the office of the District Superintendent of Police."}}, {"text": "Alcola", "label": "GPE", "start_char": 3297, "end_char": 3303, "source": "ner", "metadata": {"in_sentence": "Alcola."}}, {"text": "Vijaysingh", "label": "PETITIONER", "start_char": 3428, "end_char": 3438, "source": "ner", "metadata": {"in_sentence": "Vijaysingh was prosecuted before the Judicial Magistrate, First Class, Alcola, under\n\ns. 66(1)(b) and s. 85(1) (!), (", "canonical_name": "Vijaysingh"}}, {"text": "Judicial Magistrate, First Class, Alcola", "label": "COURT", "start_char": 3465, "end_char": 3505, "source": "ner", "metadata": {"in_sentence": "Vijaysingh was prosecuted before the Judicial Magistrate, First Class, Alcola, under\n\ns. 66(1)(b) and s. 85(1) (!), ("}}, {"text": "s. 66(1)(b)", "label": "PROVISION", "start_char": 3514, "end_char": 3525, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 85(1)", "label": "PROVISION", "start_char": 3530, "end_char": 3538, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(l)(b)", "label": "PROVISION", "start_char": 3624, "end_char": 3635, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8511", "label": "PROVISION", "start_char": 3640, "end_char": 3647, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 66(!)", "label": "PROVISION", "start_char": 3707, "end_char": 3716, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(!)(b)", "label": "PROVISION", "start_char": 3823, "end_char": 3834, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 85(1)(1)", "label": "PROVISION", "start_char": 3895, "end_char": 3906, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 3990, "end_char": 3995, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Maharashtra", "label": "ORG", "start_char": 4017, "end_char": 4037, "source": "ner", "metadata": {"in_sentence": "Against the judgment of the Sessions Judge acquitting the appellant under s. 66{l)(b) of the Act the State of Maharashtra preferred an appeal to the High Court; and against the order of conviction under s. 35(]) (!)"}}, {"text": "s. 35(])", "label": "PROVISION", "start_char": 4119, "end_char": 4127, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(l)(b)", "label": "PROVISION", "start_char": 4443, "end_char": 4454, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 85(1)(!)", "label": "PROVISION", "start_char": 4615, "end_char": 4626, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 4916, "end_char": 4924, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 5459, "end_char": 5467, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24A", "label": "PROVISION", "start_char": 6074, "end_char": 6080, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 6438, "end_char": 6446, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24A(2)", "label": "PROVISION", "start_char": 6531, "end_char": 6540, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of Maharashtra", "label": "ORG", "start_char": 7990, "end_char": 8015, "source": "ner", "metadata": {"in_sentence": "The Chemical Analyser to the Government of Maharashtra examined the sample blood taken from the body of the accused by applying \"modified Cavette's method\" and G gave his report to the effect that the sample blood of the accused contained 0.207 mg."}}, {"text": "Deshmukh", "label": "OTHER_PERSON", "start_char": 8619, "end_char": 8627, "source": "ner", "metadata": {"in_sentence": "On the basis of the evidence of Dr. Deshmukh, the High Court also found that Tincture Zingeberis Mitis was a which might be consumed for intoxication and that intoxication would not be accompanied by any other harmful effects."}}, {"text": "Section 66(2)", "label": "PROVISION", "start_char": 9126, "end_char": 9139, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 10094, "end_char": 10099, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24A", "label": "PROVISION", "start_char": 10544, "end_char": 10550, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 66(2)", "label": "PROVISION", "start_char": 11637, "end_char": 11650, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 12024, "end_char": 12032, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6A", "label": "PROVISION", "start_char": 12356, "end_char": 12361, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6A", "label": "PROVISION", "start_char": 12380, "end_char": 12385, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6A", "label": "PROVISION", "start_char": 12779, "end_char": 12784, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6A", "label": "PROVISION", "start_char": 13327, "end_char": 13332, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 13554, "end_char": 13562, "source": "regex", "metadata": {"statute": null}}, {"text": "SubbaRao", "label": "JUDGE", "start_char": 15054, "end_char": 15062, "source": "ner", "metadata": {"in_sentence": "STATE OF MAHARASHTRA (SubbaRao, J.) 363\n\nwhich might be consumed for intoxication and that intoxication would not be accompanied by any harmful effects."}}, {"text": "s. 85(1)(1)", "label": "PROVISION", "start_char": 15280, "end_char": 15291, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 85", "label": "PROVISION", "start_char": 15334, "end_char": 15339, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 85", "label": "PROVISION", "start_char": 15847, "end_char": 15852, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 85(1)", "label": "PROVISION", "start_char": 17180, "end_char": 17188, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_364_380_EN", "year": 1965, "text": "SHEIKH GULFAN AND OTHERS\n\nSANAT KUMAR GANGULI\n\nMarch 15, 1965\n\n[P. B. GAJENDRAGADKAR, C.J., M. HIDAYATULLAiH AND V. RAMA- B\n\nSWAMI, JJ.J\n\nCalcutta Thika Tenancy Act (2 of 1949), s. 30(c)-If applies to land in respecr of which betterment fee is levied.\n\nThe appellants were thika tenants under the respondent in respect of the suit land. Under the Calcutta Improvement Trust Act, 1911, a Rcheme had been framed for improvement of an area within which\n\nthe suit land was situate and the suit land was shown among the pro!Jerties in regard to which betterment fees were proposed to be levied. The respondent accepted the betterment fee assessed and levied under s. 78A of the Act. Thereafter, he filed suits for the ejectment of the appellants. The suits were d'smissed as not maintainable, because of s. 5 of the Calcutta Thika Tenancy Act, 1949, under which an application for the ejectment of a thika tenant could be filed only before the Controller under that Act, On appeal, it was held, that the suits were governed by the provisions of s. 30(c) of the Thika Tenancy Act, underwhich, nothing in the Act applied to any land which was required for carrying out any of the provis'ons of the Improvement Trust Act, and therefore,· the appeals were allowed.\n\nIn the a n0eal to this Court by the tenants on the question \"\" to E whether s. 30(c) applied to the suits;\n\nHELD: Bt'cause the land was liable to pay betterment fee and tbe fee thus realised served the purPQSe of s. 122 of the Improvement •rrust Act by swelling the funds of the Imorovement Trust Board and \"uch fm, d could be utilised by the Board for the purposes of carryjng out the scheme, it cannot be said that the land itself was reauired for F carryini; out the provisions of the Improvement Trust Act. The require- J'lent of s. 3G(cl of the Thika Tenancy Act could not be said to be\n\nsatisfied by such an indirect connection between the land and the general purpose of the Improvement Trust Act. [378 A-BJ • In construing the words of a statute the context in whiCh the words occur. the object of the statute in which the prov•ision is included and the policv underlying the statute assume relevance and G become material, [373 F]\n\nIn the instant case, the object of the Thika Tenancy Act to help thika is writ large in all the material provisions of the Act.\n\nIn construing s. 30, which provides for an exception to the applicability of beneficent legislation, if two constructions are reasonably possible, the Court would be justified in preferring that construction B which helps to carry out the beneficent purpose of the Act and does not undu ?y expand the area or the scope of the exception, that is, the\n\nexception must be strictly construed. Under the section, it is the land which must be reauired and not any fee or charges that may\n\nbe levied against it. Further. there must be a direct connection between the land as such and the requirements of the provisions of the Improvement Trust Act, and not with the policy of the provisions or the object which they are intended to achieve. In order that s. 30(c) should be applicable, the respondent must point\n\nSHEIKH GULF AN Q. SANAT KUMAR GA N'.JULI\n\n0.J.) 365\n\n.ou\\ a specific provision of the Improvement Trust Act for the carrying out of which the land as such was required. S€ction 122 of that Act would not help the respondent, because, it would not be possible to hold that for carrying out its provisions the land was directly\n\nrequired. [376 f, 376 H-377 C, G: 378 HJ\n\nMoreover, when s. 78A of the Improvement Trust Act, expressly says that the land in respect of which betterment fee can be levied, is not required for the scheme, the argument that such a land is,\n\nnevertheless, required for carrying out the provision of s. 71:A, eannot be accepted. (377 HJ\n\nBetterment fee is levied against a land, because its value is increased as a result of the improvement scheme and the Board is justified in recouping itself by such levy in respect of the unearned increment in the value of the land, and, if the landholder pays the fee, he may:apply under s. 25 of the Improvement Trust Act for an enhancement of the rent payable by .the tenants; but there is no\n\nreason why such a landlord should get the additional benefit of exemption from the aopl'cation of the provisions of the Thika Tenancy\n\nAct. Clauses (a) and -(b) of s. 30 -Of that Act indicate that it is only lands vested in Government or other special bodies or authorities that are excepted from the application of the Act. The words used in cl.\n\n(c) do not justify the conclusion that a orivate landholder is intended to be equated with Government or with such other special bodies or\n\nauthorities. [378 C, D, FJ\n\nThough lands acquired by the Board may be covered by s. 30(b) (•iv), on the assumption that the Bo2'rd is a local authority, s. 30(c) would not become redundant if it was held not to apply to the suit land, because. there may still be some other lands which are net acquired by the Board but which may. nevertheless. be required for carrying out some provisions of the Improvement Trust Act, as for example under ss. 35C and 42 of that Act. Or, the legislature might\n\nhave made, by way of abundant caution, a S!\"'Cific provision in respect of lands which are acquired by the Board as well as those which would be required for the pmoose of carrying out the provisions of the Improvement Trust Act. (379 D-H] '\n\nCIVIL AFPELLATE JURISDICTION: Civil Appeals Nos. 48 to 53 of 1963.\n\nAppeals from the judgment and decrees dated May 3, 1960, of the Calcutta High Court in Appeals Nos. 215, 67, 82 & 216 of 1958.\n\nW. S. Bar/ingay, S. S. Khanduja and Ganpat .Rai, for the appellants (in all the appeals). .. - •• G. S. Pathak and D. N. Mukherjee; for the respondent (in all the appeals).\n\nThe Judgment of the Court was delivered by\n\nGajendragadkar, C.J. The s.hort question which these six ap. peals raise relates to the construction of section 30(c) of the Calcutta Thika Tenancy Act, 1949 (W.B. Act No. II of 1949) (hereinafter .called 'the Acf). This question arises in tliis way. The respondent\n\nSanat Kumar Ganguli is the owner of a plot of land being premises No. 12, Haldar Lane, in Central Calcutta This plot had been let out in several lots to the predecessors-in-title of the six appellants.\n\nOn July 24, 1954, the respondent filed six suits-Nos. 2240 to 2245 of 1954 against the six appellants respectively on the original side of the Calcutta High Court, claiming decrees for against them and asking for arrears of ground rent and Municipal taxes.\n\nThe appellants contested the respondent's claim on the ground that the lands in suits had been taken by their predecessors-in-title from the owner 11s Thika tenants in or about the year 1900, and they alleged that they were in occupation of the said plots after having built substantial structures on them. The appellants further claimed that they had themselves let out po_rtions of such structures to their own tenants. On these allegations, a preliminary objection to the competence of the suits was raised by the appellants on the grounp that under s. 5 of the Act, claim for ejectment of Thika tenants can be entertained only by the Controller, and so, the learned Judge on the original side of the Calcutta High Court had no jurisdiction to entertain it.\n\nThe respondent admitted that the appellants were Thika tenants and did not dispute that normally, a claim for ejecting such Thika tenants could be tried only by \"the Controller; but he urged\n\nthat the present suits fell within the scope of s. 30(c) of the Act and in consequence, the provisions of s. 5 and indeed, all other relevant provisions of the Act did not apply to them. That is how the respondent sought to meet the preliminary objection raised by the appellants.\n\nIn appreciating the nature of the controversy thus raised by the pleadings, it is necessary to mention some more facts. On February 9, 1940 a notice was issued by the Chairman of the Calcutta Improvement Trust under s. 43 of the Calcutta Improvement\n\nAct, 1911 (Bengal Act V of 1911) as amended up to 1931. This Act will hereafter be called 'the Improvement Act'. This notice shows that a scheme bearing No. 53 had been framed for the purpose of improvement of Calcutta by a street scheme in Ward No. JO of the Calcutta Municipality for an area the boundaries whereof were described in the said notice. This notice gave the particulars of the scheme and was accompanied by a map of the area comprised in the scheme. It also contained the statement of the land which it was proposed to acquire as well as land on which betterment fee was proposed to be levied. These plans were open for inspection at the office of the Trust at No. 5, Clive Street, Calcutta. Along with this notice, another notice was published which gave a list of properties proposed to be acquired under the scheme and contained a statement of the land in regard to which betterment fees were proposed to be levied. Premises No. 12, Haldar Lane, were included in the latter category of lands.\n\nIn July 1952, proceedings were started for settling .the betterment fee to be levied in respect of premises No. 12, Haldar Lane, and a lett; r was addressed by the Chief Valuer of the Calcutta\n\nSHEIKH GULFAN v. SANAT KUMAR GANGULI (Gajendragadkar, O.J.) 367\n\nImprovement Trust to the respondent on November 19, 1952. This letter shows that the Chief Valuer had not received a reply from the respondent, though his advocate had accepted the assessment of betterment fee of Rs. 15,000 in the Land Committee meeting which had been held on August 7, 1952 and confirmed by the Board on August 30, 1952. On November 19, 1952, however, the respondent recorded in writing that he accepted the said assessment.\n\nThe respondent's case before the learned trial Judge was that since betterment fee had been levied by the Board in respect of the suit premises and had been accepted by him, s. 30(c) of the Act\n\napplied to the present suits. Section 30{c) provides that \"nothing in the Act shall apply to any land which is required for carrying out any of the provisions of the Calcutta Improvement Act, 1911.\" That is how the respondent sought to repel the application of s. 5 of the Act and the exclusive jurisdiction of the Controller to deal with ejectment proceedings -in respect of thika tenants' holdings. The learned trial Judge held that the plots constituting the land in the six respective suits did not attract the provisions of s. 30(c) of the Act, and so, he upheld the preliminary objection raised by the appellants and came to the conclusion that the suits filed by the respondent on the original side of the Calcutta High Court -.vere\n\nincompetent and could not be entertained. In the result, the said suits were ordered to be dismissed with costs.\n\nThe respondent challenged these decrees by preferring six appeals before a Division Bench of the High Court. The learned Judges who heard these appeals have delivered separate, but concurring, judgments and have upheld the respondent's argument that\n\nthe land in suits attracted the provisions of s. 30(c) of the Act, with the result that the preliminary objection raised by the _appellants has been rejected. Once the preliminary objection was rejected, it was plain that no other point survived, because the appellants had\n\nno defence to make on the merits of the respondent's claim. That is why the appeals were allowed and decrees, for possession were passed in favour of the respondent. The claim made by the respondent in respect of arrears of ground rent and municipal taxes was t1lso allowed. It is against these decrees that the appellants have come to\n\nthis Court with certificates granted by the High Court; and so, the only question which arises for our decision is whether the Division\n\nBench was right in holding that s. 30{c) of the Act applied to the present suits. The answer to this question depends on a fair construction of the provision prescribed by s. 30{c).\n\nBefore dealing with this question, it is necessary to refer to the material provisions of the Act. The Act was passed in 1949 with the object of making better provision relating to the Jaw of landlord and tenant in respect of thika tenancies in Calcutta. Section 2(5) in Chapter I defines a \"thika tenant\" as meaning any person who\n\nholds, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable\n\nto pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors in interest of such person. Sub-clauses (a), (b) and (c) of this definition exclude from\n\nits purview certain other categories of persons, but we are not concerned with these categories Gf persons in the present appeals. It is common ground that the appellants are thika tenants in respect of\n\nthe plots in their possession.\n\nChapter II of the Act deals with incidents of thika tenancies.\n\nBroadly stated, the object of the Act is to afford special protectian to the thika tenants and several provisions have been enacted by\n\nthe Act to carry out this object. Section 3 specifies the grounds on which alone a thika tenant may be evicted. Section 4 prescribes a notice before ejectment proceedings can be taken against a thika tenant; and s. 5 provides for proceedings for ejectment. The important feature of the provisions contained in s. 5(1) is that the application for ejectment of a thika tenant has to be made to the Controller in the prescribed manner. The \"controller\" is defined bys. 2(2) as meaning an officer appointed as such by the State Go!ernment for an area to which the Act extends and includes officers of another category therein described. The remaining provisions of Ch. II deal with the procedure which has to be followed by the Controller in dealing with applications for ejectment of thika tenants and make other incidental provisions in that behalf. The policy of the Act to afford protection to the thika tenants is writ large in all these provisions.\n\nChapter III contains provisions as to rent of thika tenancies.\n\nChapter IV deals with appeals and certain special procedures. Section 27(1), for instance, provides for appeals to the Chief Judge of the Court of Small Causes of Calcutta and District Judge respectively under clauses (a) and (b). Section 27(6) provides that an order made under sub-s. (4) by the Chief Judge or the District Judge or a person appointed under sub-s. (2), as the case may be, or, subject to such order, if any, an order made by the Controller under this Act shall, subject to the provisions of sub-s. (5) be final and may be executed by the Controller in the manner provided in the Code of Civil Procedure for the execution of decrees. It is thus clear that the Act has made special provisions for the enforcement of the rights and liabilities of the thika tenants, has constituted hierarchy of special authorities to deal with claims made by landlords against their thika tenants, either in the first instance or at the appellate stage. The decisions of these special authorities which become final are assimilated to decrees passed under the Code of Civil Procedure\n\nand can be executed in the manner prescribed by 0.21 of the Code.\n\nSection 31 provides that restriction or exclusion of the Act by agreement between a landlord and a thika tenant will be invalid,\n\nSHEIKH GULFANV. SANAT KUMAI\\ GANGuLI {Gajendragadkar, 0.J.) 369\n\nand will not affect the rights conferred on the thika tenants by the provisions of the Act. It is in the light of these provisions that we have to construe s. 30 of the Act.\n\nSection 30 reads thus: -\n\n\"Nothing in this Act shall apply to-\n\n(a) Government lands, (bl any land vested in or in the possession of-\n\n(i) the State Government,\n\n(ii) a port authority of a major port, or\n\n(iii) a railway administration, or\n\n(iv) a local authority, or\n\n(c) any land which is required for carrying out any of the\n\nprovisions of the Calcutta Improvement Act, 191 l.''\n\nThe perusal of s. 30 clearly shows that the provisions of the Act are excluded in regard to lands specified in clauses (a), (b) and (c), 50 that claims made for ejectment of thika tenants from these lands will not be governed by the provisions of the Act and can be made and entertained in ordinary civil courts of competent jurisdiction. The question which we have to consider in the present appeals is whether the land which is the subject-matter of the sh suits is land which is required for carrying out any of the provisions of the Improvement Act.\n\nThat takes JS to the relevant provisions of the Improvement Act itself. The Improvement Act was passed in 1911 and has been amended from time to time. Let us consider broadly the material\n\nprovisions of this Act, as they stood prior to the amendment of\n\n1955, which would assist us in construing s. 30(c) of the Act. This Act was passed, because it was thought expedient to make provision for the improvement and expansion of Calcutta by opening up congested areas, laying out or altering streets, providing open spaces for purposes of ventilation or recreation, demolishing or constructing buildings, acquiring land for the said purposes i.nd for the re, housing of persons of the poorer and working classes displaced by the execution of improvement schemes, and otherwise as hereinafter appearing. It was further thought expedient to constitute a Board of Trustees and invest it with special powers for carrying out the objects of this Act. Section 2(1a) of this Act defines a \"betterment fee\" as the fee prescribed by s. 78A in respect of an increase in value of land resulting from the execution of an im provement scheme. Chapter III of this Act deals with\n\nschemes and re-housing schemes. Section 36 provides when general improvement schemes may be framed. It is only where the conditions specified by clauses (a) & (b) of s. 36 are satisfied that general schemes can be framed. Under this section, the Board has to pass\n\n37()\n\nCOURT REPORTS [1965] 3 s.o.B.\n\na resolution to the effect that the general improvement scheme\n\nshould be framed on the ground that the area comprised in the scheme is an unhealthy area and that it was necessary to frame a general improvement scheme in respect of.Jmch area. Section 40\n\nwith matters which have to be considered while framing improvement schemes. It provides that when framing an improvement\n\nscheme in respect of any area, regard shall be had to-\n\n(a) the nature and the conditions of neighbouring areas\n\nand of Calcutta as a whole;\n\n(b) the several directions in which the expansion of Calcutta appears likely to take place; and\n\n(c) the likelihood of improvement schemes being required for other parts of Calcutta. Section 41 deals with matters which must be provided for in improvement schemes; it reads thus: ._c_\n\n\"Every improvement scheme shall provide for-\n\n(a) the acquisition by the Board of any land, in the area\n\ncomprised in the scheme, which will, in their opinion be required for the execution of the scheme;\n\n(bl the laying out or re-laying out of the land in the said\n\narea;\n\n(c) such demolition, alteration or reconstruction of buildings, situated on land which it is proposed to acquire in the said area, as the Board may think necessary;\n\n(d) the construction of any buildings which . the Board\n\nmay consider it necessary to erect for any purpose other than sale or hire; ·\n\n(e) the laying out or alteration of streets (including\n\nbridges, causeways and culverts), if required; nnd\n\n(f) the levelling, paving, metalling, flagging, channelling,\n\nsewering and draining of the said streets, and the\n\nprovision therein of water, lighting and other sanitary conveniences ordinarily provided in a Municipality.\" Section 42 deals with matters which may be provided for in dealing with improvement schemes. It is necessary to read this section as well:-\n\n\"Any improvement scheme may provide\n\n(a) the acquisition by the Board of any land, in the area\n\ncomprised in the scheme, which will, in their opinion, be affected by the execution of the scheme;\n\n(b) raising, lowering or levelling any land in the area\n\ncomprised in the scheme;\n\nSHEIKH GULFANV. SANAT KUMAR GANGULI (Gajendragadkar, G.J.) 371\n\n(c) the formation or retention of open spaces; and\n\n(d) any other matters, consistent with this Act, which the\n\nBoard may think lit\" Under s. 47, the Board is required to consider objections, representations and statements of dissent received under the relevant provisions of sections 43, 44 and 45; and it provides that as a consequence of considering' the said objections, representations and statements of dissent, the Board may either abandon the scheme or apply to the State Government for sanction to the scheme, with such modifications, if any, as the Board may consider necessary.\n\nSection 47(2)(e) lays down that every application submitted under sub-s. (1) shall be accompanied by a list of the names of all persons, if any, who have dissented, under s. 45, clause (bl, from the proposed acquisition of their land or from the proposed recovery of a betterment fee, and a statement of the reasons given for such dissent. The rest of the Chapter deals with the subsequent stages of the framing of the improvement schemes to which it is unnecessary to refer.\n\nChapter IV deals with acquisition and disposal of land. Three sections out of this Chapter are relevant for our purpose. Section 78 deals with the abanuonment of acquisition in consideration of special payment. Section 78(1) is relevant; it reads thus:-\n\n\"In any case in which the State Government has sanctioned the acquisition of land, in any area comprised in an\n\nimprovement scheme, which is not required for the execution of the scheme, the owner of the land, or any person\n\nhaving an interest therein, may make an application to the Board, requesting that the acquisition of the land\n\nshould be abandoned in consideration of the payment by him of a sum to be fixed by the Board in that behalf.\"\n\nThe other sub-sections of s. 78 lay down a procedure for dealing with applications made under sub-s. (1). With the details of\n\nthese provisions we are not concerned. The only point which is relevant for our purpose is that an application for abandonment can be made in respect of land which is not required for the execution of the scheme. In other words, if it appears that the piece of land which is comprised in the scheme already sanctioned by the Government is in fact not required for the execution of the scheme,\n\nan application may be made for abandonment of acquisition in respect of such a land. The basis for making such an application is that though the land was comprised in the scheme, it is found that it is not required for the execution of the scheme\n\nThat takes us to s. 78A which has a bearing on the construction of s. 30(c) of the Act. Section 78A(l) is material for our purpose; it\n\nreads thus: -\n\n\"When by the making of any improvement scheme, any land in the area comprised in the scheme which is not\n\nL/B(N)3SCl-U\n\nrequired for the execution thereof will, in the opinion of the Board, be increased in value, the Board, in framing\n\nthe scheme, may in lieu of providing for the acquisition of such land, declare that a betterment fee shall be payable by the owner of the land or any person having an interest therein in respect of the increase in value of the\n\nland resulting from the execution of the scheme.\"\n\nSection 78A(2) provides for the determination and calculation of the betterment fee.\n\nThe last section in this Chapter , is s. 81. It confers power on the Board to dispose of land vested in or acquired by them under this Act. Section 81 (1) lays down that the Board may retain, or\n\nmay let on hire, lease, sell, exchange or otherwise dispose of any land vested in or acquired by them under this Act. How this power can be exercised is specified by sub-sections (2) and (3) of s. 81.\n\nBefore we part with the Improvement Act, it would be useful to mention that sections 120 to 126 which occur in Ch. VI of this\n\nAct deal with the accounts of the Board. Section 122 provides for . credits to capital account and lays down, inter a/ia, that all sums, except interest, received by way of special payments for betterment fees in-'pursuance of sections 78, 78A or 79, shall be credited to the capital account. Section 123 deals with the question of the application of the capital account, and it proceeds on the basis that the moneys credited to the capital account .shall be held by the Board in trust, and by clauses (a) to (h), it specifies the objects or purposes\n\nfor which the said amount can be applied. Section 124 refers to\n\nitems which have to be included in the revenue account; and s. 125 requires that like the moneys credited to the capital account, those credited to the revenue account must also be held by the Board in trust, and the same shall be applied for the purposes specified in clauses (a) to (g) of s. 125(1).\n\nLet us now revert to the question about the construction of s. 30(c) of the Act. Before answering this question, we would like\n\nto recall the material facts which are not in dispute: The land in question has been included in the boundaries of the area comprised\n\nin the scheme. After the Board framed scheme No. 53, it has issued a notice under s. 43(1) of the Improvement Act, and. as required by s. 43(7)(b), while mentioning the boundaries of the area comprised in the scheme, it has clearly been shown that the land in question is comprised in the said scheme. In respect of this land,\n\nproceedings have been taken under s. 78A of the Improvement Act and betterment fee has been levied and accepted.\n\nMr. Pathak for the respondent contends that as soon as it is shown that the land in question was comprised in the scheme and\n\nin respect of it betterment fee has been levied and accepted, s. 30(cl of the Act is attracted. His argument is that such a land is required for carrying out the provisions of the Improvement Act. On the\n\nSHEIKH GULF AN v. SANAT IWMAR GANGULI (Gajendragadkar, O.J.) 373\n\nother hand, Dr. Barlinge contends that the land in respect of which betterment fee has been levied cannot be said to be required for carrying out any provisions of the Improvement Act, though it may be that the betterment fee would assist the Board in discharging its functions under the Improvement Act. In deciding the merits of these competing claims, it is necessary to remember that the dispute in the present proceedings is not between the Board on the one hand and the landlord or the thika tenant on the other; the dispute is between the landlord and the thika tenants, and in the decision of this dispute, the Board is not interested. Whatever be the decision of the Court in the present dispute will not affect the Board in the discharge of its duties and functions and will have no impact on the scheme as such.\n\nThe words used in s. 30(c) of the Act are, in a sense, simple enough; but it must be conceded that the problem of their construction is not very easy, and so, we might attempt to resolve this problem by considering what our approach should be in construing the relevant provision. Normally, the words used in a statute have to be construed in their ordinary meaning; but in many cases, judicial approach finds that the simple device of adopting the ordinary meaning of words does not meet the ends 6r a fair and a reasonable construction. Exclusive reliance on the bare dictionary meaning of words may not necessarily assist a proper construction of the statutory provision in which the words occur. Often enough, in inter preting a statutory provision, it becomes necessary to haw regard to the subject-matter of the statute and the object which it is intended to achieve. That is why in deciding the true scope and effect of the relevant words in any statutory provision, the context in which the words occur, the object of the statute in which the provision is included, and the policy underlying the statute assume relevance and become material. As Halsbury has observed, the words \"should\n\nbe construed in the light of their context rather than what may be either strict etymological sense or their popular meaning apart from\n\nthat context(')\". This position is not disputed before us by either party.\n\nThere has, however, been a sharp controversy before us on the question as to what is the context to which recourse should be\n\nhad in interpreting section 30(c). Mr. Pathak contends that in construing s. 30(c) of the Act, the key words are \"required for carrying out any of the provisions of the Improvement Act\", and he has urged that the task of interpretation of this key clause should ne attempted by having regard to the context, the object and the policy of the Improvement Act. In interpreting this clause, the court\n\nshould ask itself: what is the purpose of the provisions of the Improvement Act which the land is required to serve, before s. 30(cl of the Act can be invoked? And in finding an answer to this question, the court must bear in mind the historical evolution of the legal\n\n(1) Haiabury's Lows of England Vol. 36, p. 394, para 593.\n\nSUPREME COURT REPORTS trn6UJ a s.c.B.\n\npnnciples relating to the powers functions of Improvement Boards. In this connection Mr. Pathak has rehed on the oecis10n of the House of Lords in R. H. Galloway v. 1 he Mayor and Commonalty of London('). ln that case a contrast was drawn between the special powers conferred on persons by Parliament for etiecting a particular purp0se, and those comened on the Mayor and Colllmonalty of tne City of London to maKe certain public iinprovcments tn the City. 1t was held that where a company was authorised to take compulsorily the lands of any person for a detinite object,\n\nit wouJd be restrained by in1uncllon trom ahy attempt to take them for any other object. On the other hand, where the Mayor and Commonalty of the City of London had been entrusted with powers to make certain public unprovements in the City, and for that purpose had been authori>ed compuisorily to take land, to raise money on the credit of it, and to sell superfiucus land to pay off the debt, the Act which gave them those powers did not expressly con1er on the authonties to acquire more Jand than was absolutely necessary to effect the des!Ied lIIlprovements; nevertheiess the mateiial provisions of the said Act ought to be construed tavourably to them, and ought to be interpreted to confer on them the power to take lands 'for the purposes of the Act'', even though they may not be absolutely necessary for the improvement scneme as such. ln other words, this decision shows that where the Board .is entrusted with the work of improving the City and is constituted for that purpose by a statute, its power to acquire lands for the purpose of the inlprovement scheme would include the power to acquire a land which is comprised in the scheme, though it may not be absolutely necessary for the scheme as such; and in such a case, it would be competent to the Board first to acquire the land and then to dispose of it, thereby putting itself in possession of the necessary funds io discharge its functions and obligations.\n\nThe same principle has been emphasised by the Privy Councii in the Trustees for the Improvement of Calcutta v. Chandra Kanta\n\nGhosh('). We have already referred toss. 41 and 42 of lhe Improvement Act. Section 41 enumerates matters which must be provided for in the improvement schemes, whereas s. 42 deals with matters which may be provided for in the improvement schemes. Section 42(a) lays down that any improvement scheme may provide for the\n\nacquisition by the Board of any land, in the area comprised in the scheme, which will, in their opinion, be affected by the execution of the scheme. The question whic)l arose before the Privy Council in\n\nthe case of the Trustees for the Improvement of Calcutta(') was whether under s. 42(a), it was competent to the Board to acquire, for the purpose of recoupment, land which is not required for the execution of the scheme, but the trustees are of opinion that the said land would, by virtue of the scheme, be increased in value. The\n\n(') [1866] 1 Eng & Ir A.C. 34.\n\n(1) [1919] L.R. 47 I.A. 45.\n\nSl!EIKH GULFANV. SANATKUMA!t GAXGl'LI (Gajendragadkar, C.J.) 375\n\ndecision of this question depended, inter alia, on the meaning of the word \"affected\" used in s. 42(a). The argument which was urged before the Privy Council was that in order that land can be acquired by the Beard under s. 42(a), it must appear that the land falls in the area comprise::! in the scheme and would be affected by the execution of the scheme. If the land does not become a part of the scheme itself but remains outside the scheme, it cannot be said to\n\nbe affected by the scheme; and so, the Board may have no power to acquire it avowedly for the purpose of securing reccupment money. The Privy Council rejected this contention and held that the Board was empowered to acquire land which is comprised in the scheme and would be competent to sell it and thereby raise funds if It is satisfied that the value of the land will be enhanced by\n\nvirtue of the scheme. \"There would appear to be nothing\". said Lord Parmoor speaking for the Board, \"either in the general scheme of the Act or in the special context which is inconsistent with giving\n\nthe word \"affected\" its ordinary and normal sense; but it was suggested in the argument on behalf of the respondent that the Act did not authorise the Board to acquire land unless it was either\n\nphysically affected by the execution of the scheme, or injuriously affected, whether by severance or in some other manner\" (p. 54).\n\nIn rejecting this argument, Lord Parmoor observed that \"in the opinion of their Lordships, none of the suggested limitations to the usual and normal meaning of the word \"affected\" in s. 42 are admissible, and that there is no reason, either in the general purpose of the Act or the special context, that the word should not be construed in its ordinary sense, and that, as so construed, s. 42 .. uthorises the acquisition of the land of the respondent, which was\n\ninserted in the scheme, because in the opinion of the Board, it would be enhanced in value by its execution\". Section 78 and s. 78A\n\nwhich has been inserted in the Improvement Act in 1931, in a sense give statutory recognition to the principle evolved by the l'rivy Council while interpreting s. 42 of the Improvement Act.\n\nBasing himself on this aspect of the matter, Mr. Pathak contends that where a land is comprised in the improvement scheme\n\noriginally notified and betterment fee is levied later in respect of it under s. 78A, the Board can be deemed to have taken two steps; it may be said that the Board acquired the land and later, sold it to the owner on the terms and conditions authorised bys. 78A. In other words, the argument is that the levy of batterment fee is another way of bringing the land within the purview of the improvement\n\nscheme and it is, in fact. an alternative way of acquiring it. If that is so, s. 30(c) which obviously includes lands acquired for the purposes of the scheme, cannot be said to exclude land which iS not directly acquired, but is indirectly placed in the same category of lands, because recovery of the recoupment fee is one way of acquiring the land. It is on these grounds that Mr. Pathak has strenuously contended that the key clause in s. 30(c) should receive a liberal\n\nconstruction and the land in question in the present proceedings A should be held to be required for carrying out the relevant provisions of the Improvement Act.\n\nOn the other hand, Dr. Balinge has emphasised the fact that the section which we are construing occurs in the Thika Tenancy Act and it is the context of this Act as well as the object which it B seeks to achieve that are relevant and material. 'There is no doubt\n\nthat the provisions of the Act are intended to serve the purpose of social justice. The Legislature realised that the relations between\n\nthe landlord and the tenants in respect of holdings let out to thika tenants under the Act needed to be regulated by statute and it thought that thika tenants deserved some special protection. The C Act is thus aJ measure which can be described as soaial welfare measure, and the argument is that s. 30 which provides for an exception to the material provisions of the Act, shoud\n\nbe strictly construed, so that the beneficent purpose of the Act should not be unduly narrowed down or restricted. In construing s. 30(e), it would, therefore, be relevant to remember whether it D could not have been the intention of the Legislature to permit a private land-holder whose land has not been acquired and does not form part of the improvement scheme, to claim immunity from the application of the relevant provisions of the Act which give protection to the thika tenants; and sa, Dr. Barlinge's contention is that it would be unreasonable to introduce a liberal approach E in construing the clause \"required for carrying out any of the provisions of the Improvement Act\" as suggested by Mr. Pathak.\n\nIn our opinion, while construing s. 30(c) it would be necessary to bear in mind the context of the Act in which the section occurs.\n\nWe have already noticed the broad features of the Act. and .the F object of the Act to help the thika tenants is writ large in all the . material provisions. In the case of such a statute, if an exception is\n\nprovided, the provision prescribing the exception and creating a bar to the application of the Aat to certain cases must, we think, be strictly comtrued. Take the other clauses of s. 30; they clearly indicate that it is only lands vested in Government or other G: special bodies or authorities that are excepted from the application of the Act. Prima facie, it is not easy to assume that a privHte landholder like the respondent would be within the protection of s. 30,\n\nbecause there is no consideration in his case, as in the case of other authorities or bodies covered by clauses (a) and (b) of s. 30, which\n\nwould justify the exclusion of the Act to his case. That is one aspect' H of the matter which we cannot ignore.\n\nThat takes us to the crux of the problem : can the land in question be said to be required for carrying out any of the provisions of the Improvement Act? It is significant that it is the land which must be required, and not any fee or charges that may be levied against it. What s. 30(c) of the Act seems to require is direct\n\n:r:\n\nSHEIKH GULF AN v. SAN AT KUMAR GANGULI (Gajendragadkar, O.J.) 377\n\nconnection between the Ja\"nd as such and the requirements of the provisions of the Improvement Act. The other ingredient of s. 30(c) is that the land must be required for carrying out the provisions of the Improvement Act. In the context, this second ingredient of the\n\nsection seems to suggest that the land must be necessary for carrying out the provisions as such of the Improvement Act; in other words, we should be able to say about the land in question that it was necessary for carrying out a particular provision of the Improvement Act.\n\nThe third and the last ingredient of s. 30(c) is that the necessity must be established for carrying out the provisions of the Improvement Act and not the policy of the said provisions or the object which they are intended to achieve.\n\nHaving regard to these ingredients of s. 30(c), the question which calls for an answer is: is it shown that the land in question is necessary to carry out any specific provision of the Improvement Act?\n\nIt is difficult to answer this question in favour of the respondent.\n\nIt is true that the betterment fee which is levied goes to consti tute an important item in the capital account under s. 122 of the Improvement Act. It is also true that the Board has the power to . levy betterment fee in order that it should secure enough funds to\n\ncarry out its obligations under the Improvement Act. Such a power\n\nhas always vested in the Board and has now been statutorily conferred on it by s. 78A. Under s. 81, the Board can acquire more land than is absolutely necessary for the purpose of the scheme as such, and may later dispose of superfluous land. The existence ol\n\nthese powers cannot be disputed. But would it be consistent with the fair construction of s. 30(c) to hold that because the land in question can be made liable to pay betterment fee and the betterment fee thus realised from the land serves the purpose of s. 122 of the Improvement Act, the land itself is required for carrying out the provisions of s. 122? In order thats. 30(c) should be applicable, the respondent must point out a specific provision of the Improvement Act for the carrying out of which the land as such is required.\n\nThe provisions of s. 122 of the Improvement Act do not help the respondent, because it is not possible to hold that for carrying out the provisions of s. I 22, the land in question is directly required.\n\nThere is another aspect of the question to which we ought to refer Section 78A. like s. 78, deals with lands which in terms are not required for the execution of the scheme. These two sections provide for two categories of lands, both of which were originally comprised in the scheme. but are later found to be not required for the scheme. Now, when s. 78A expressly says that the land in\n\nrespect of which betterment fee can be levied, is not required for the scheme, it is not easy to accept the atgument that such a land is\n\nnevertheless required for carrying out the provisions of s. 78A. In construing s. 30(c), it is necessary to distinguish between the carrying out the provisions of the Improvement Act, and the achievement or the accomplishment of the objects of the said provisions.\n\nA In one sense, the land in question does serve the purpose of the Improvement scheme, because the betterment fee which is levied on it swells the funds of the Board and the funds are utilised by\n\nthe Board for the purposes of carrying out the scheme; but the requirement of the land for carrying out the provisions of the Jm- '\n\nprovement Act which alone can invoke s. 30(c), cannot be said to B be satisfied by this indirect connection between the land and the general purpose' of the Improvement Act.\n\nThere is one more aspect of this problem which is not irrelevant. Betterment fee is levied against a land, because its value is increased as a result of the improvement scheme, and so, s. 78A authorises the Board to levy betterment fee presumably on the ground that the Board is justified in recouping itself by such levy\n\nin respect of unearned increment in the value of the land of which the land-holder gets a benefit. If the land-holder pays bettennent fee for such unearned increment in the value of the land, he may apply\n\nunder s. 25 of the Act for enhancing the rent. payable by the thika tenants to him. But there appears to be no reason why a landlord, the value of whose land has increased by the improvement scheme introduced in the area in which his land is situated, should get the additional benefit of exemption from the application of the provisions of the Act which give protection to the tenants.\n\nHaving carefull'y considered the question of construing s.30(c), we have come to the conclusion that the words used in s. 30(c) do not justify the conclusion that a private .landholder is inte11ded to be equated with Government or with the other special bodies or authorities whose lands are exempted from the operation of the Act . by s. 30. We do not think that the Legislature intended that the\n\nprovisions of the Act should cease to applv to all lands which vre comprised in the scheme, because such a provision would apoear -to be inconsistent with the categories of cases covered by clauses (a)\n\n& (bl of s. 30. Besides, if that was the intention of the Legislature in enacting s. 30(c), it would have been easy for the Legislature to say that lands comprised in the im.orovement schemes should be exempted from the application of the Act. Section 30, as we already emphasised, provides for an exception to the application of the\n\nbeneficent orovisions of the Act. and it would. we think. not be unreasonable to hold that even if s. 30(c) is reasonably canable of the construction for which Mr. Pathak contends, we should prefer the alternative construction which is also reasonably possible. In construin_g the provisions which provide for exceotions to the applicability of beneficent legislation, if two constructions are reasonably possible. the Court would be iustified in preferring that constructiort\n\nwhich helos to carrv out the beneficent purpose of the Act and does not unduly expand the area or the scope of the exception. Therefore, we are satisfied that the Court of Appeal was in error in\n\nSBEIKHGULFANV. SANATKUMARGANGULI (Gajendragadkar, C.J.) 379\n\nreversing the conclusion of the trial that the pres.cot suits filed on the original side of the Calcutta High Court were mcompetent.\n\nThere is, however, one more point to which we ought to. refer before we part with these appeals. Both the learned Judges m the Court of Appeal have observed that if s. 30(c) is held not to apply to the land in question on the ground that it is not required for carrying ollt any of the provisions of the Improvement Act, s. 30(c) would, in substance, become redundant. The argument which was thus urged before the Court of Appeal and has been accepted by it, assumes that the Board is a local authority within the meaning of s. 30(b)(iv) and as such, the land which has vested in the Board is already excepted from the operation of the Act by the said provision; and that means .that the lands acquired by the Board under the provisions of the Improvement Act have already been provided for by s. 30(b)(iv). If that is so, there would be no cases to which s. 30(c) can apply. this point arises incidentally in construing s. 30(c), we do not propose to decide in the present appeals whether the Board is a local authority within the meaning of s. 30(b)(ivl. In dealing with this particular argument, however, we are prepared to\n\nassume that the Board is such a local authority. Even so, it is possible to hold that s. 30(c) does not become redundant, because though s. 30(b)(iv) may include lands acquired by the Board, there may\n\nstill be some other lands which are not acquired by the Board but which, nevertheless, may be required for carrying out some provisions of the Improvement Act. Take, for instance, s. 42 of the Improvement Act. Section 42(b) lays down that any improvement scheme may provide for raising, lowering, or levelling any land in the area comprised in the scheme. Section 42(c) provides for the formation and retention of open spaces. Similar provisions are made by s. 35C(l)(i) and (j) as introduced by the Amending Act 32 of l 955. It is possible to talce the view that the lands required for the purposes specified in these provisions of s. 42 or s. 35C of the Improvement Act are required within the meaning of s. 301c) of the Act, though they may not have been acquired. But apart from this consideration, the argument that s. 30(c) would become redundant cannot, we think, be treated as decisive, because it is not unknown that the Legislature sometimes makes proyisions out of abundant caution. When s. 30(c) was enacted in 1949, the Legislature ma:y have thought that in order to avoid any doubt, dispute or difficulty in regard to the question as to whether the Board would be a authority or not, it would be better to make a specific prevision in respect of lands which are acquired by the Board as well as those which would be required for the purpose of carrying out the provisions of the Improvement Act. It is true that the lands which are\n\nwithin the meaning of s. 30(c) would include lands which are actually acquired as well as those which might not have been acquired but are, nevertheless, required for carrying out the provisions of the Improvement Act.\n\nBut having: specified respective\n\nauthorities or bodies in clause (a) & (b) of s. 30, the Legislature may A have thought that it would be better to refer to the Improvement Act and lands required for carrying out its provisions, specifically and expressly. Having regard to the considerations on which our\n\ninterpretation of s. 30(c) is based, we are not prepared to attach undue significance to the argument based on the assumption that the Board is a local authority within the meaning of s. 30(b)(iv) and • that would make the provisions of s. 30(c) either superfluous or would deprive the said provision of any significance or importance.\n\nThe result is, the appeals are allowed, the decrees passed by the Division Bench are set aside and those of the trial Judge restored with costs throughout. ,,.\n\nAppeals t1llowetl.", "total_entities": 184, "entities": [{"text": "SHEIKH GULFAN AND OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "SHEIKH GULFAN AND OTHERS", "offset_not_found": false}}, {"text": "SANAT KUMAR GANGULI", "label": "RESPONDENT", "start_char": 26, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "SANAT KUMAR GANGULI", "offset_not_found": false}}, {"text": "March 15, 1965", "label": "DATE", "start_char": 47, "end_char": 61, "source": "ner", "metadata": {"in_sentence": "SHEIKH GULFAN AND OTHERS\n\nSANAT KUMAR GANGULI\n\nMarch 15, 1965\n\n[P. B. GAJENDRAGADKAR, C.J., M. HIDAYATULLAiH AND V. RAMA- B\n\nSWAMI, JJ.J\n\nCalcutta Thika Tenancy Act (2 of 1949), s. 30(c)-If applies to land in respecr of which betterment fee is levied."}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 64, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "Calcutta Thika Tenancy Act", "label": "STATUTE", "start_char": 138, "end_char": 164, "source": "regex", "metadata": {}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 178, "end_char": 186, "source": "regex", "metadata": {"linked_statute_text": "Calcutta Thika Tenancy Act", "statute": "Calcutta Thika Tenancy Act"}}, {"text": "Calcutta Improvement Trust Act, 1911", "label": "STATUTE", "start_char": 347, "end_char": 383, "source": "regex", "metadata": {}}, {"text": "s. 78A", "label": "PROVISION", "start_char": 659, "end_char": 665, "source": "regex", "metadata": {"linked_statute_text": "Under the Calcutta Improvement Trust Act, 1911", "statute": "Under the Calcutta Improvement Trust Act, 1911"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 799, "end_char": 803, "source": "regex", "metadata": {"linked_statute_text": "Under the Calcutta Improvement Trust Act, 1911", "statute": "Under the Calcutta Improvement Trust Act, 1911"}}, {"text": "Calcutta Thika Tenancy Act, 1949", "label": "STATUTE", "start_char": 811, "end_char": 843, "source": "regex", "metadata": {}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 1040, "end_char": 1048, "source": "regex", "metadata": {"linked_statute_text": "the Calcutta Thika Tenancy Act, 1949", "statute": "the Calcutta Thika Tenancy Act, 1949"}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 1333, "end_char": 1341, "source": "regex", "metadata": {"linked_statute_text": "the Calcutta Thika Tenancy Act, 1949", "statute": "the Calcutta Thika Tenancy Act, 1949"}}, {"text": "s. 122", "label": "PROVISION", "start_char": 1470, "end_char": 1476, "source": "regex", "metadata": {"linked_statute_text": "the Calcutta Thika Tenancy Act, 1949", "statute": "the Calcutta Thika Tenancy Act, 1949"}}, {"text": "Imorovement Trust Board", "label": "ORG", "start_char": 1536, "end_char": 1559, "source": "ner", "metadata": {"in_sentence": "In the a n0eal to this Court by the tenants on the question \"\" to E whether s. 30(c) applied to the suits;\n\nHELD: Bt'cause the land was liable to pay betterment fee and tbe fee thus realised served the purPQSe of s. 122 of the Improvement •rrust Act by swelling the funds of the Imorovement Trust Board and \"uch fm, d could be utilised by the Board for the purposes of carryjng out the scheme, it cannot be said that the land itself was reauired for F carryini; out the provisions of the Improvement Trust Act."}}, {"text": "SHEIKH GULF AN Q. SANAT KUMAR GA N'", "label": "JUDGE", "start_char": 3133, "end_char": 3168, "source": "ner", "metadata": {"in_sentence": "In order that s. 30(c) should be applicable, the respondent must point\n\nSHEIKH GULF AN Q. SANAT KUMAR GA N'."}}, {"text": "s. 78A", "label": "PROVISION", "start_char": 3516, "end_char": 3522, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 71", "label": "PROVISION", "start_char": 3756, "end_char": 3761, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 4083, "end_char": 4088, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 4355, "end_char": 4360, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(b)", "label": "PROVISION", "start_char": 4760, "end_char": 4768, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 4832, "end_char": 4840, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 35C and 42", "label": "PROVISION", "start_char": 5120, "end_char": 5134, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL AFPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 5418, "end_char": 5446, "source": "ner", "metadata": {"in_sentence": "379 D-H] '\n\nCIVIL AFPELLATE JURISDICTION: Civil Appeals Nos."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 5550, "end_char": 5569, "source": "ner", "metadata": {"in_sentence": "Appeals from the judgment and decrees dated May 3, 1960, of the Calcutta High Court in Appeals Nos."}}, {"text": "W. S. Bar", "label": "OTHER_PERSON", "start_char": 5614, "end_char": 5623, "source": "ner", "metadata": {"in_sentence": "W. S. Bar/ingay, S. S. Khanduja and Ganpat .Rai, for the appellants (in all the appeals). .. - ••"}}, {"text": "S. S. Khanduja", "label": "OTHER_PERSON", "start_char": 5631, "end_char": 5645, "source": "ner", "metadata": {"in_sentence": "W. S. Bar/ingay, S. S. Khanduja and Ganpat .Rai, for the appellants (in all the appeals). .. - ••"}}, {"text": "Ganpat .Rai", "label": "OTHER_PERSON", "start_char": 5650, "end_char": 5661, "source": "ner", "metadata": {"in_sentence": "W. S. Bar/ingay, S. S. Khanduja and Ganpat .Rai, for the appellants (in all the appeals). .. - ••"}}, {"text": "G. S. Pathak", "label": "LAWYER", "start_char": 5712, "end_char": 5724, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak and D. N. Mukherjee; for the respondent (in all the appeals)."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 5729, "end_char": 5744, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak and D. N. Mukherjee; for the respondent (in all the appeals)."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 5832, "end_char": 5846, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendragadkar, C.J. 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SANAT KUMAR GANGULI (Gajendragadkar, O.J.) 367\n\nImprovement Trust to the respondent on November 19, 1952."}}, {"text": "August 7, 1952", "label": "DATE", "start_char": 9595, "end_char": 9609, "source": "ner", "metadata": {"in_sentence": "15,000 in the Land Committee meeting which had been held on August 7, 1952 and confirmed by the Board on August 30, 1952."}}, {"text": "August 30, 1952", "label": "DATE", "start_char": 9640, "end_char": 9655, "source": "ner", "metadata": {"in_sentence": "15,000 in the Land Committee meeting which had been held on August 7, 1952 and confirmed by the Board on August 30, 1952."}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 9936, "end_char": 9944, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 30", "label": "PROVISION", "start_char": 9987, "end_char": 9997, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 10218, "end_char": 10222, "source": "regex", "metadata": {"linked_statute_text": "the Act shall apply to any land which is required for carrying out any of the provisions of the Calcutta Improvement Act, 1911", "statute": "the Act shall apply to any land which is required for carrying out any of the provisions of the Calcutta Improvement Act, 1911"}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 10486, "end_char": 10494, "source": "regex", "metadata": {"linked_statute_text": "the Act shall apply to any land which is required for carrying out any of the provisions of the Calcutta Improvement Act, 1911", "statute": "the Act shall apply to any land which is required for carrying out any of the provisions of the Calcutta Improvement Act, 1911"}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 11109, "end_char": 11117, "source": "regex", "metadata": {"linked_statute_text": "the Act shall apply to any land which is required for carrying out any of the provisions of the Calcutta Improvement Act, 1911", "statute": "the Act shall apply to any land which is required for carrying out any of the provisions of the Calcutta Improvement Act, 1911"}}, {"text": "s. 30", "label": "PROVISION", "start_char": 11844, "end_char": 11849, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 11984, "end_char": 11989, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(5)", "label": "PROVISION", "start_char": 12250, "end_char": 12262, "source": "regex", "metadata": {"statute": null}}, {"text": "Chapter II of the Act", "label": "STATUTE", "start_char": 13038, "end_char": 13059, "source": "regex", "metadata": {}}, {"text": "Section 3", "label": "PROVISION", "start_char": 13272, "end_char": 13281, "source": "regex", "metadata": {"linked_statute_text": "Chapter II of the Act", "statute": "Chapter II of the Act"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 13350, "end_char": 13359, "source": "regex", "metadata": {"linked_statute_text": "Chapter II of the Act", "statute": "Chapter II of the Act"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 13450, "end_char": 13454, "source": "regex", "metadata": {"linked_statute_text": "Chapter II of the Act", "statute": "Chapter II of the Act"}}, {"text": "s. 5(1)", "label": "PROVISION", "start_char": 13548, "end_char": 13555, "source": "regex", "metadata": {"linked_statute_text": "Chapter II of the Act", "statute": "Chapter II of the Act"}}, {"text": "Section 27(1)", "label": "PROVISION", "start_char": 14316, "end_char": 14329, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 27(6)", "label": "PROVISION", "start_char": 14485, "end_char": 14498, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 14847, "end_char": 14874, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 15309, "end_char": 15336, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 31", "label": "PROVISION", "start_char": 15405, "end_char": 15415, "source": "regex", "metadata": {"statute": null}}, {"text": "SHEIKH GULFANV. 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SANAT KUMAR GANGULI", "label": "JUDGE", "start_char": 20308, "end_char": 20343, "source": "ner", "metadata": {"in_sentence": "It is necessary to read this section as well:-\n\n\"Any improvement scheme may provide\n\n(a) the acquisition by the Board of any land, in the area\n\ncomprised in the scheme, which will, in their opinion, be affected by the execution of the scheme;\n\n(b) raising, lowering or levelling any land in the area\n\ncomprised in the scheme;\n\nSHEIKH GULFANV.", "canonical_name": "SHEIKH GULFANV. SANAT KUMAR GANGULI"}}, {"text": "s. 47", "label": "PROVISION", "start_char": 20511, "end_char": 20516, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 43, 44 and 45", "label": "PROVISION", "start_char": 20648, "end_char": 20670, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 47(2)(e)", "label": "PROVISION", "start_char": 20962, "end_char": 20978, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 45", "label": "PROVISION", "start_char": 21133, "end_char": 21138, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 78", "label": "PROVISION", "start_char": 21560, "end_char": 21570, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 78(1)", "label": "PROVISION", "start_char": 21650, "end_char": 21663, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78", "label": "PROVISION", "start_char": 22167, "end_char": 22172, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78A", "label": "PROVISION", "start_char": 22927, "end_char": 22933, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 22977, "end_char": 22985, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 78A(l)", "label": "PROVISION", "start_char": 22998, "end_char": 23012, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 78A(2)", "label": "PROVISION", "start_char": 23576, "end_char": 23590, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 81", "label": "PROVISION", "start_char": 23700, "end_char": 23705, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 81", "label": "PROVISION", "start_char": 23802, "end_char": 23812, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 81", "label": "PROVISION", "start_char": 24052, "end_char": 24057, "source": "regex", "metadata": {"statute": null}}, {"text": "Before we part with the Improvement Act", "label": "STATUTE", "start_char": 24060, "end_char": 24099, "source": "regex", "metadata": {}}, {"text": "sections 120 to 126", "label": "PROVISION", "start_char": 24136, "end_char": 24155, "source": "regex", "metadata": {"linked_statute_text": "Before we part with the Improvement Act", "statute": "Before we part with the Improvement Act"}}, {"text": "Section 122", "label": "PROVISION", "start_char": 24228, "end_char": 24239, "source": "regex", "metadata": {"linked_statute_text": "Before we part with the Improvement Act", "statute": "Before we part with the Improvement Act"}}, {"text": "sections 78, 78A", "label": "PROVISION", "start_char": 24414, "end_char": 24430, "source": "regex", "metadata": {"linked_statute_text": "Before we part with the Improvement Act", "statute": "Before we part with the Improvement Act"}}, {"text": "Section 123", "label": "PROVISION", "start_char": 24480, "end_char": 24491, "source": "regex", "metadata": {"linked_statute_text": "Before we part with the Improvement Act", "statute": "Before we part with the Improvement Act"}}, {"text": "Section 124", "label": "PROVISION", "start_char": 24781, "end_char": 24792, "source": "regex", "metadata": {"linked_statute_text": "Before we part with the Improvement Act", "statute": "Before we part with the Improvement Act"}}, {"text": "s. 125", "label": "PROVISION", "start_char": 24864, "end_char": 24870, "source": "regex", "metadata": {"linked_statute_text": "Before we part with the Improvement Act", "statute": "Before we part with the Improvement Act"}}, {"text": "s. 125(1)", "label": "PROVISION", "start_char": 25095, "end_char": 25104, "source": "regex", "metadata": {"linked_statute_text": "Before we part with the Improvement Act", "statute": "Before we part with the Improvement Act"}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 25167, "end_char": 25175, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 43(1)", "label": "PROVISION", "start_char": 25452, "end_char": 25460, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 43(7)(b)", "label": "PROVISION", "start_char": 25505, "end_char": 25516, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78A", "label": "PROVISION", "start_char": 25732, "end_char": 25738, "source": "regex", "metadata": {"statute": null}}, {"text": "Pathak", "label": "OTHER_PERSON", "start_char": 25816, "end_char": 25822, "source": "ner", "metadata": {"in_sentence": "Mr. Pathak for the respondent contends that as soon as it is shown that the land in question was comprised in the scheme and\n\nin respect of it betterment fee has been levied and accepted, s. 30(cl of the Act is attracted."}}, {"text": "Barlinge", "label": "OTHER_PERSON", "start_char": 26225, "end_char": 26233, "source": "ner", "metadata": {"in_sentence": "On the\n\nSHEIKH GULF AN v. SANAT IWMAR GANGULI (Gajendragadkar, O.J.) 373\n\nother hand, Dr. Barlinge contends that the land in respect of which betterment fee has been levied cannot be said to be required for carrying out any provisions of the Improvement Act, though it may be that the betterment fee would assist the Board in discharging its functions under the Improvement Act."}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 27051, "end_char": 27059, "source": "regex", "metadata": {"statute": null}}, {"text": "Halsbury", "label": "OTHER_PERSON", "start_char": 28186, "end_char": 28194, "source": "ner", "metadata": {"in_sentence": "As Halsbury has observed, the words \"should\n\nbe construed in the light of their context rather than what may be either strict etymological sense or their popular meaning apart from\n\nthat context(')\"."}}, {"text": "section 30(c)", "label": "PROVISION", "start_char": 28587, "end_char": 28600, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 28641, "end_char": 28649, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliament", "label": "ORG", "start_char": 29623, "end_char": 29633, "source": "ner", "metadata": {"in_sentence": "ln that case a contrast was drawn between the special powers conferred on persons by Parliament for etiecting a particular purp0se, and those comened on the Mayor and Colllmonalty of tne City of London to maKe certain public iinprovcments tn the City."}}, {"text": "London", "label": "GPE", "start_char": 30061, "end_char": 30067, "source": "ner", "metadata": {"in_sentence": "On the other hand, where the Mayor and Commonalty of the City of London had been entrusted with powers to make certain public unprovements in the City, and for that purpose had been authori>ed compuisorily to take land, to raise money on the credit of it, and to sell superfiucus land to pay off the debt, the Act which gave them those powers did not expressly con1er on the authonties to acquire more Jand than was absolutely necessary to effect the des!Ied lIIlprovements; nevertheiess the mateiial provisions of the said Act ought to be construed tavourably to them, and ought to be interpreted to confer on them the power to take lands 'for the purposes of the Act'', even though they may not be absolutely necessary for the improvement scneme as such."}}, {"text": "Section 41", "label": "PROVISION", "start_char": 31536, "end_char": 31546, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 31629, "end_char": 31634, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 42(a)", "label": "PROVISION", "start_char": 31708, "end_char": 31721, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42(a)", "label": "PROVISION", "start_char": 32063, "end_char": 32071, "source": "regex", "metadata": {"statute": null}}, {"text": "L.R. 47 I.A. 45", "label": "CASE_CITATION", "start_char": 32360, "end_char": 32375, "source": "regex", "metadata": {}}, {"text": "Sl!EIKH GULFANV. SANATKUMA!t", "label": "JUDGE", "start_char": 32378, "end_char": 32406, "source": "ner", "metadata": {"in_sentence": "Sl!EIKH GULFANV."}}, {"text": "s. 42(a)", "label": "PROVISION", "start_char": 32538, "end_char": 32546, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42(a)", "label": "PROVISION", "start_char": 32665, "end_char": 32673, "source": "regex", "metadata": {"statute": null}}, {"text": "Parmoor", "label": "OTHER_PERSON", "start_char": 33367, "end_char": 33374, "source": "ner", "metadata": {"in_sentence": "said Lord Parmoor speaking for the Board, \"either in the general scheme of the Act or in the special context which is inconsistent with giving\n\nthe word \"affected\" its ordinary and normal sense; but it was suggested in the argument on behalf of the respondent that the Act did not authorise the Board to acquire land unless it was either\n\nphysically affected by the execution of the scheme, or injuriously affected, whether by severance or in some other manner\" (p. 54)."}}, {"text": "s. 42", "label": "PROVISION", "start_char": 34012, "end_char": 34017, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 34216, "end_char": 34221, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 78", "label": "PROVISION", "start_char": 34403, "end_char": 34413, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78A", "label": "PROVISION", "start_char": 34418, "end_char": 34424, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 34586, "end_char": 34591, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78A", "label": "PROVISION", "start_char": 34818, "end_char": 34824, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 35221, "end_char": 35229, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 35582, "end_char": 35590, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 36478, "end_char": 36483, "source": "regex", "metadata": {"linked_statute_text": "Balinge has emphasised the fact that the section which we are construing occurs in the Thika Tenancy Act and it is the context of this Act", "statute": "Balinge has emphasised the fact that the section which we are construing occurs in the Thika Tenancy Act and it is the context of this Act"}}, {"text": "s. 30(e)", "label": "PROVISION", "start_char": 36691, "end_char": 36699, "source": "regex", "metadata": {"linked_statute_text": "Balinge has emphasised the fact that the section which we are construing occurs in the Thika Tenancy Act and it is the context of this Act", "statute": "Balinge has emphasised the fact that the section which we are construing occurs in the Thika Tenancy Act and it is the context of this Act"}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 37309, "end_char": 37317, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 37798, "end_char": 37803, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 38081, "end_char": 38086, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 38216, "end_char": 38221, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 38622, "end_char": 38630, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 38866, "end_char": 38874, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 39325, "end_char": 39333, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 39562, "end_char": 39570, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 122", "label": "PROVISION", "start_char": 39915, "end_char": 39921, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78A", "label": "PROVISION", "start_char": 40210, "end_char": 40216, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 81", "label": "PROVISION", "start_char": 40224, "end_char": 40229, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 40482, "end_char": 40490, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 122", "label": "PROVISION", "start_char": 40647, "end_char": 40653, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 122", "label": "PROVISION", "start_char": 40741, "end_char": 40747, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 122", "label": "PROVISION", "start_char": 40946, "end_char": 40952, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 78A", "label": "PROVISION", "start_char": 41199, "end_char": 41210, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78", "label": "PROVISION", "start_char": 41217, "end_char": 41222, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78A", "label": "PROVISION", "start_char": 41482, "end_char": 41488, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78A", "label": "PROVISION", "start_char": 41717, "end_char": 41723, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 41739, "end_char": 41747, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 42293, "end_char": 42301, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78A", "label": "PROVISION", "start_char": 42616, "end_char": 42622, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 42966, "end_char": 42971, "source": "regex", "metadata": {"statute": null}}, {"text": "s.30(c)", "label": "PROVISION", "start_char": 43404, "end_char": 43411, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 43467, "end_char": 43475, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 43684, "end_char": 43689, "source": "regex", "metadata": {"statute": null}}, {"text": "provisions of the Act", "label": "STATUTE", "start_char": 43747, "end_char": 43768, "source": "regex", "metadata": {}}, {"text": "s. 30", "label": "PROVISION", "start_char": 43959, "end_char": 43964, "source": "regex", "metadata": {"linked_statute_text": "We do not think that the Legislature intended that the\n\nprovisions of the Act", "statute": "We do not think that the Legislature intended that the\n\nprovisions of the Act"}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 44032, "end_char": 44040, "source": "regex", "metadata": {"linked_statute_text": "We do not think that the Legislature intended that the\n\nprovisions of the Act", "statute": "We do not think that the Legislature intended that the\n\nprovisions of the Act"}}, {"text": "Section 30", "label": "PROVISION", "start_char": 44194, "end_char": 44204, "source": "regex", "metadata": {"linked_statute_text": "We do not think that the Legislature intended that the\n\nprovisions of the Act", "statute": "We do not think that the Legislature intended that the\n\nprovisions of the Act"}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 44384, "end_char": 44392, "source": "regex", "metadata": {"linked_statute_text": "We do not think that the Legislature intended that the\n\nprovisions of the Act", "statute": "We do not think that the Legislature intended that the\n\nprovisions of the Act"}}, {"text": "SBEIKHGULFANV. SANATKUMARGANGULI", "label": "JUDGE", "start_char": 44959, "end_char": 44991, "source": "ner", "metadata": {"in_sentence": "Therefore, we are satisfied that the Court of Appeal was in error in\n\nSBEIKHGULFANV."}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 45319, "end_char": 45327, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 45475, "end_char": 45483, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(b)(iv)", "label": "PROVISION", "start_char": 45679, "end_char": 45691, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(b)(iv)", "label": "PROVISION", "start_char": 45948, "end_char": 45960, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 46010, "end_char": 46018, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 46075, "end_char": 46083, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(b)(iv)", "label": "PROVISION", "start_char": 46419, "end_char": 46431, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 46664, "end_char": 46669, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 42(b)", "label": "PROVISION", "start_char": 46694, "end_char": 46707, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 42(c)", "label": "PROVISION", "start_char": 46840, "end_char": 46853, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 35C(l)(i)", "label": "PROVISION", "start_char": 46942, "end_char": 46954, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 47117, "end_char": 47122, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 35C", "label": "PROVISION", "start_char": 47126, "end_char": 47132, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 301", "label": "PROVISION", "start_char": 47191, "end_char": 47197, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 47305, "end_char": 47313, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 47483, "end_char": 47491, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 47953, "end_char": 47961, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 48230, "end_char": 48235, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 48476, "end_char": 48484, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(b)(iv)", "label": "PROVISION", "start_char": 48642, "end_char": 48654, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(c)", "label": "PROVISION", "start_char": 48695, "end_char": 48703, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_381_393_EN", "year": 1965, "text": "BADRI PRASAD\n\nSTATE OF MADHYA PRADESH AND ANOTHER\n\nMarch 16, 1965\n\n[P. B. GAJENDRAGADKAR, C. J., RAGHUBAR DAYAL AND V. RAMA-\n\nSWAMI, JJ.J\n\nSale of Goods Act (3 of 1930), s. 20-Auction of cut timber of forest-Delivery-Destruction by fire before removal-Formal contract signed by competent authority later-If property in timbe1\"\n\npassed.\n\nThe 2nd respondent purchased on 24th December 1956, at a public auction sale held by the Divisional Forest Officer, the cut timber of a couP€ and paid the first instalment of the purchase price\n\nimmediately. The appellant stood surety for the payment of the remaining three instalments. The coupe was divided into 4 sections\n\naccording to the r11les which were deemed to be part of the contract and the boundary certificates was furnished to the 2nd respondent on 5th February 1957. He began operations in the 1st section on the last week of February, but defaulted in the payment of the 2nd instalment which was due on 1st March 1957, and so, on 25th April the apP€llant and 2nd respondent were informed by the forest authorities, that no further removal of the timber would be allowed, as the value of timber already removed exceeded the a-mount paid.\n\nOn 28th April, a fire broke out and the timber sold to the 2nd respondent ceased to exist. On 3rd May 1957, the formal deed of contract, which was signed by the 2nd respondent and the Divisional Forest Officer on 24th December, was signed by the Chief Conservator of Forests, as required by the rules. Since the 2nd respondent had not paid the later instalments proceedings were commenced by the 1st respondent against the appellant, whereupon he filed a suit for restraining the 1st respondent from continuing the proce.edings. The\n\nsuit was decreed by the trial court, but dismissed on appeal, by the High Court.\n\nIn his appeal to this Court, the apP€llant contended that the 2nd respondent had not been put in possernion of the timber sold, except the portion on the 1st section of the coupe, that there was no transfer of property in the timber and therefore he was not liable to pay\n\nthe amounts due on the other 3 instalments, the transfer of property in the timber being a condition precedent to his lfability.\n\nHELD: There was an unconditional contract for the sale of specific goods in a deliverable state, the property in the timber\n\npassed to the 2nd respondent when the contract was made on 24th December 1956 under s 20 of the Sale of Goods Act, 1930, and possession was also given on 5th February 1957. Therefore, the appellant's suit was rightly dismissed by the High Court (391 HJ\n\nThe timber was sufficiently identifiable and was therefore specified goods and there was nothing in the contract postponing possession till the other instalments have been paid.\n\nThe fact that the contract was signed by the Chi€f Conservator, after fire had broken\n\nout has no effect on the validity of the contract, or on the question of delivery of possession or on the passing of property in the timber.\n\nThe instructions in the Forest Manual about execution of contra<ts plainly take h1to the lar:se of time br;. ... ,,,,. .. ,, ·:>\n\nSUPREME COURT REPORTS\n\n[1965] 3 S.C.11.\n\ntion by the lessee and by the competent forest authority, and A therefore, the date on which the Chief Conservator signed had not any real effect on the actual date on which the sale of the timber took place. It was also with'n the realm c.f possibility that the timber might be lost on account of fire or other risk, before the contract was formally signed. The sale of the timber to the 2nd respondent was therefore final on 24th December, the date of sale, subject to the acceptance of his b'.d by the competent authority. [387 E-H; B\n\n388 F; 393 A-BJ\n\nWilliams v. North China Instlrance Co., L.R. (1876)! C.1\".D. 757, applied.\n\nRule 8 of the Forest Contract Rules empowers the Divisional Forest Officer to stop the removal of the timber en his finding that the value of the timber already removed exceeded the amount of instalments pa'd, But, that would not amount to reserving a right of disposal in the State, because, the rules provide that though ordinarily the timber should be sold for cash payment in full, payment in instalments could be cons'dered as payment in full, if a right in accordance with r. 8 is reserved. When a contractor is deemed to have paid in full the price, there could be no occas'on fer the Government to reserve a right of d'sposal. The proviscon in r. 8 is only in pursuance of the statutory provision in s. 83 of the Forest Act. 1927, which provides that when any mcney is payable for or in respect of any forest produce, the amount thereof shall be a first charge. on such produce, and that such produce may be taken possession of by a Forest Officer, until such amount has been paid. [390 H-391 DJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 672 of 1964.\n\nAppeal by special leave from the judgement and decree dated October 1962 of the Madhya Pradesh High Court in First Appeal No. 8 of 1960.\n\nC. B. Agarwa/a, W. S. Bar/ingay and A. G. Ratnaparkhi, for\n\nthe appellant.\n\nM. Adhikari, Advocate General f!•r the State of Madhya Pradesh, B. Sen, M. S. K. Sastri, M. N. Shroff, R. P. Kapur for I. N. Shroff, for the respondent No. 1.\n\nThe judgment of the Court was delivered by Raghubar Dayal, J. This appeal, by special leave, arises out of a suit instituted by the appellant for a declaration that he was not liable to pay a certain amount originally due from defendant-respondent No. 2 and for the issue of a permanent injuction restraining the State Government, Madhya Pradesh, defendantrespondent No. 1 from continuing the proceedings for the recovery of the amount or for starting any fresh proceedings. The suit was decreed by the Trial Court but, on appeal, the High Court reversed the decree and dismissed the appellant's suit.\n\nThe admitted facts of the case are that on December 24, 1956, respondent No. 2 purchased at the public auction sale held by the Divisional F.orest Officer, Harda, the cut timber and arkat trees of coupe No. 9 Easterri. East Kalibhit Range, in Harda Forest\n\nllADRI PRASAD v. STATE OF MADHYA PRADESH (Raghubar !Jay1d, J.) 383\n\nDivision, for Rs. 70,200. The appellant stood surety for the purchaser, viz., respondent No. 2. The purchase price was to be paid in four instalments, according to para 4 of the deed of contract.\n\nRs. 17 ,600 were to be paid at once and were so paid. The other instalments were due on March 1, May 15 and December 15, 1957.\n\nThese instalments were not paid by respondent No. 2 and hence respondent No. 1 took proceedings against the appellant for the recovery of the amount.\n\nAccording to the terms of the contract, the contractor, respondent No. 2, was to commence his work of collecting and removing the cut timber within 1 month after furnishing a copy of the boundary certificate. This certificate, Exhibit D-1, was furnished on February 5, 1957 and stated that the respondent No. 2 had clearly understood the boundaries of the areas covered by the lease and that he had taken possession of the standing I felled I collected material in the aforesaid coupe as announced at the auction and described. in the said lease and that he was satisfied that the quantity delivered to him agreed substantially with that announced at the auction.\n\nThe appellant Badri Prasad signed this certificate as a witness.\n\nThe work could continue upto June 30, 1958.\n\nInterest was to be charged at 6;!: per cent per annum in respect of the instalments not paid on the due dates. The removal of the forest produce purchased from the contract areas was to be according to specified routes and, after they had been examined\n\nat the depots specified in clause 5 of the contract dee!. Clauses 5A and 5B of the contract made it incumbent on the forest contractor respondent No. 2 to set apart certain timber for certain purposes to the agriculturists and the residents of the villages till three months before the expiry of the contract. The Forest Contract Rules were deemed to be part of the contract entered into between respondent No. 2 and the State, by clause 6 of the contract.\n\nThe formal deed of contract was signed by the Chief Conservator of Forests on May 3, 1957 and the preamble of the deed gives the date of the making of the contract to be May 3, 1957.\n\nThe First Schedule to the Contract states :\n\n\"The forest produce sold and purchased consists of: All standing trees bearing hammer mark of marginally shown device at base and breast height. All felled trees marked at the butt end and stumps with the device shown in the margin''.\n\nThis is signed by the contractor, respondent No. 2 and by the Divisional Forest Officer, Harda Division, dated December 24,\n\n1956. The trace of the coupe sold was signed by respondent No. 2 and the Divisional Forest Officer on November 29, 1956, prior to the actual auction sale. The Third Schedule relating to the out-\n\n384 SuPREME COURT REPORTS tl965) :i S.C.llo\n\nturn register was also signed by respondent No. 2 and by the appellant who stood surety and the Divisional Forest Officer, on December 24, 1956.\n\nThe security bond was signed by the appellant on December 29, 1956 and by the Divisional Forest Officer on March 30, 1957 and.was countersigned by the Chief Conservator on May 3, 1957.\n\nThe entire coupe whose cut timber was sold to the respondent was divided into four sections A, B, C and D. This was done in accordance with r. 18 of the Forest Contract Rules. This rule provides that the operations carried out in the contract area under a forest contract for the sale of standing trees are divided into two stages (a) cutting and (b) carting. Cutting operations include felling and all processes of conversion etc. without removing it further from the place where it was felled than may be necessary to carry out such processes. Carting operations include all operations for the removal of a felled tree, or its converted products from the place where the tree was felled, whether such removal be to a depot or to a saw mill or other destination. Sub-r. (2) of r. 18 authorizes the Divisional Forest Officer to divide the contract area, shortly termed a coupe, into such number of sections, not exceeding eight, as he may think fit. The Divisional Forest Officer can regulate and confine the operations of the forest contract in accordance with the provisions mentioned in clauses (a) to (c) of that sub-rule. Clause (b) provides that a forest contractor can be allowed to carry out cutting operations first in sections I and 2 of the coupe only and as soon as he begins cutting operations in section 3 he shall be deemed to have surrendered all his rights to the standing trees in section 1 and similar would be the result on his beginning cutting operations in section 4 and so on, till all the sections of the coupe are completed. Clause (c) authorises the forest contractor to begin carting operations from the sections whose trees he has begun to cut and provides that his rights to the forest produce in section 1 cease when he starts cutting operations in section 4, and so on.\n\nThe provisions of r. 20 apply to contracts where the trees have been felled by the Forest Department and the felled trees\n\nonly were sold to the forest contractor. Sub-r. (3) makes rules 18 and 19 applicable to such contracts in so far as they be applicable.\n\nSub-r. (2) of r. 20 provides that a forest contractor who has purchased felled trees shall remove all the trees purchased by him under his contract. ·\n\nRespondent No. 2, the contractor, began his operations in section A. of the coupe in the last week of February, 1957. He defaulted m the payment of the second instalment which was due on March 1, 1957 and did not pay that amount ; u, April 25, 1957,\n\nllADRI v.\n\nOF MADlt YA PRADESH (Raglwbar Dayal, J.) 385\n\nthough it was demanded several times from him. On March 23,\n\n1957 a notice, Exhibit P4, was issued to him. It stated:\n\n\"You are being informed through this notice that the removal of goods from the coupe by you is already in excess of the amount deposited by you in the treasury.\n\nSo please send the challan of lhe second instalment as soon as possible by the return load carrier, otherwise your removal of goods would be stopped and a report would be made to the higher authority within two days\".\n\nThis was duly served on respondent No . 2.\n\nOn April 25, 1957 the appellant was told by the forest auth0; rities t\\lat no further removal of the forest produce would be allowed 'in view of the default of payment of the second instalment.\n\nThe licence book and the transit pass were taken back by the Government Forester, Madanlal Pagare.\n\nFire broke out in the forest and the cut timber sold to respondent No. 2 was burnt. The report about the loss from fire is Exhibit D2 dated April 29, 1957 and is signed by the contractor and Sheoprasad Parashar, the Forest Guard. As a result of the fire the goods purchased by respondent No. 2 and not removed by then, ceased to exist. He did not pay the amounts due for the 2nd, 3rd and 4th instalments.\n\nThe appellant sought to avoid his liability as surety for the non-payment of the amount inter-alia on the ground that the contractor respondent No. 2 had not been put in possession of the cut timber sold to him except of such timber which had been in section A of coupe No. 9, that therefore there had been no transfer of property in the timber sold to him and that he was therefore not liable for paying the amounts due on the 2nd, 3rd and 4th instalments. It was averred by the appellant in paragraph 5(A) of the plaint:\n\n\"Thus it was clearly understood on both sides and also explained by the Forest Department officials of defendant No. 1 and which has been all along implicit in the contract as per usual practices of the forest department that the possession of the goods of each respective section will be delivered to the Contractor on payment of each instalment as stated above. It was only on due payment of each instalment that the contractor was to become entitled to remove the goods in pursuance of the licence book supplied to him by the forest department of defendant No.\n\n1 \".\n\nIn paragraph 5(B) it was stated:\n\n\"That the contractor or his licensee had no right to remove the goods until the same was duly hammer marked by the representative of the said forest department\n\n386 SUl>REME COURT REPORTS [1965] 3 s.c.R.\n\nand until the licence and the transit pass were dulychecked and signed by the Coupe Guard or such other representative as may be present on the spot\", Para 5(C) mentioned:\n\n\"That the contractor or his men were further liable to carry the forest produce for check and examination of forest Depot-officers of Ziri, Rahetgaon and Timarni established for that purpose and after the cut wood was checked by the Depot Officers, the same. used to be marked with a special hammer mark, and unless that was done it was not lawful for any person to remove timber\n\nbrought to the depot\". / Respondent No. I admitted what was stated in paras 5(B) & (C) of the plaint. It denied the understanding as averred in para 5(A) and what was alleged in para 5(D) to the effect that it was after the processes mentioned earlier that delivery of the goods was deemed to be given to the forest contractor and was to be at his . disposal.\n\nThe main question urged before us is that the property in the cut timber sold and existing in sections B, C and D of the coupe had not passed to the contractor before the fire broke out in the last week of April 1957 and this contention is based on the facts that the goods sold were not specific goods as they had not been hammer-marked, that the goods in sections B, C and D could not be delivered till the 2nd, 3rd and 4th instalments had been paid and that the deed of contract was signed after the fire had taken place. • We may now consider the points urged in support of the contention that the property in the timber of sections B, C and D had not passed to respondent No. 2. The first schedule to the contract describes the property, forest produce sold and purchased, thus:\n\n\"All standing trees bearing hammer mark of marginally shown device at base and breast height. All felled trees marked at the butt end and stumps with the device shown in the margin\".\n\nIt is the case of the plaintiff-appellant that cut trees timber or cut trees were sold. Para 2(A) of the plaint describes the property purchased as 'the cut timber and arkat trees of coupe No. 9'.\n\nClause (i) of para 2 of the statement of the case filed on behalf of the appellant makes this further clear as it is stated therein that the contract was for the purchase of 'the cut-timber and cutarkat trees'. It appears therefore that the expression about 'all standing trees bearing hammer mark' in the description of forest produce sold was inadvertently omitted to be struck out from the deed of contract though there was no sale of standing trees to respondent No. , 2.\n\nBADRI PRASADV. STATE OF MADHYA PRADESH (R;, ghubar\n\nJ.)\n\nChapter XX of Part IV of Vol. I of the Central Provinces &, Berar Forest Manual (hereinafter shortly termed Forest Manual) gives the rules for the disposal of forest produce. Rule 5 states that before forest produce is disposed of it shall be properly marked.\n\nThe standing trees are marked with hammer at two places, at the\n\nbutt end and at the lower part, a little above the stem. The trees are to be felled so as to leave the lower hammer mark in the\n\nun-cut portion. The felled tree sold is subject to further processes\n\nof cutting etc. The portions so cut have to be hammer marked as only one such portion will have the hammer mark which W.ts first put at the butt end of the tree. A second special hammer mark is placed on these cut portions at the time of checking at the depot.\n\nThe two hammer marks necessary to be put on the cut portions of the felled tree before they could be actually taken away from the forest area were not made on the cut timber existing in sections\n\nB, C and D and sold to respondent No. 2, as the felled trees in those areas had not been cut further by the contractor. The omission to put such marks does not make the goods sold unascertained.\n\nThe felled trees sold to the respondent No. 2 had a butt mark at the butt end. A similar hammer mark existed on the stem near which the felled tree rhust have Jain, it being presumed that the rules for the felling of trees were properly complied with by the forest authorities, mentioned above. The goods sold therefore were specified goods.\n\nThere is nothing in the contract that possession would not be delivered over the cut timber in 'Sections B, C and D till the 2nd, 3rd and 4th instalments have been paid. The relevant provisions of r. 18 of the Contract Rules, extracted earlier, do not contain any such restriction. It only provides that the operations\n\nnecessary to be conducted by the contractor had to start with section A or the first section and that the rights of the contractor to the material purchased would be deemed to be surrendered in certain circumstances. This has nothing to do with the payment of the instalments by the contractor. He can proceed to operate on the entire property purchased, according to his inclination in accordance with the procedure, as regulated by the rules. There is therefore no force in the submission that there could have been no delivery of possession over the produce sold and existing in liection B, C and D till the various instalments had been paid.\n\nThe fact that the contract was signed by the Chief Conservator of Forests on May 3, 1957, after fire had broken out has no effect on the question of delivery of possession of the produce sold and consequently on the passing of property in the goods to\n\nthe contractor respondent No .. 2. The Chief Conservator who was the proper authority for entering into. the contract of sale of property worth over Rs. 70,000 /- had necessarily to sign the deed of contract subsequent to the actual auction sale and in view of the L/E(NJ3Scl-12\n\n8UPREMll COURT REPORTS\n\n(1965) 3 S.C.B.\n\nexigencies of the procedure to be followed may have to sign after A a substantial period of time.\n\nThe bid of respondent No. 2 at the auction sale had been provisionally accepted by the Divisional Forest Officer who ls\n\nauthorized under the rules to conduct the auction sale. The Divi visional Forest Officer and respondent No. 2 thereafter signed the B deed of contract on December 24, 1956 the date on which the auction sale took place. The appellant, as surety, also signed the third schedule on December 24, and the security bond on Decem ber 24. Practically all the formalities necessary for the execution of the deed except for the signatures of the Chief Conservator, authorised to enter into a contract of this magnitude, had been 0 completed. His formal signature on the deed of contract relates back the contract to the date of auction when the bid of respon dent No. 2 was provisionally accepted and he and the Divisional Forest Officer signed the contract.\n\nIn this connection, reference may be made to certain rules D and the instructions issued by Government to the various officers for complying with those rules. Executive instructions on the preparation of forest contract agreements are printed at p. 125 of\n\nVol. II of the Forest Manual. Instruction No. 9 provides that if the parties have signed the deed on the same date, that date should be entered in the preamble, but ifthey had signed on two different E dates, then the later of those two dates should be entered in the preamble. It was in accordance with this instruction that May 3,\n\n1957, the date on which the Chief Conservator signed the contract was mentioned in the preamble of the contract deed. That date therefore had not any real effect on the actual date on which the sale of the forest produce took place in favour of respondent F No. 2.\n\nInstruction IO directs that the dates in clause 2 of the prescribed deed of contract should be very carefully entered as they have an important bearing on the deed and show the period during which the contract will remain in force. Such a period in the deed G of contract Exhibit D is the period 'from the date the forest contractor furnishes the necessary coupe boundary certificate after inspection of the contract area to the 30th day of June 1958, both days inclusive'. The coupe boundary certificate was furnished on February 5. 1957. It follows that the period for the operation of the contract was from February 5, 1957 to June 30, 1958. This is B a clear indication that the date in the preamble has no real effect and that the contract, after its being duly signed by the competent authority, relates back to the date of sale.\n\nInstruction 16 deals with the execution of the deed of contract.\n\nClause (i) provides for the drawing up of the contract in triplicate.\n\nClause (iii) requires the Divisional Forest Officer to initial the\n\nBADBi P1WW> 11. STA.TE Of lolAI>llY.l l.'JW>llllH (Ragilubar Dayal, J,) ll8ll\n\ncontract after checking it before the lessee is asked to sign it.\n\nClause (iv) provides that where the Divisional Forest Officer himself\n\nis empowered to execute the agreement he and the lessee should execute it together and clause (v) provides that where the .Divisional Forest Officer is not empowered to. execute the agreement,\n\nit should be executed by the lessee and his signature .should be attested and that the agreement should then. be sent as soon as possible to the Forest Officer empowered to execute it, for his signature and attestation.\n\nThese instructions about the execution of the deed of contract plainly take into consideration the lapse of time between the execution by the lessee and by the competent forest authority.\n\nInstructions Nos .. 38 to 48 are with regard to the auction of forest contracts. It is the Divisional Forest Officer who is directed to take certain steps. Instruction No. 45 provides that Divisional Forest Officers should ordinarily allow themselves more than one day for the conduct of' the auction sales. Instruction No. 47 provides that where the agreements are to be signed by the Conservator or higher authority, the first instalments must still be paid and the duplicate agreements signed by the contractor and his surety, if any, and sent to the Conservator immediately. The Conservators should sign the duplicate agreements in token of acceptance and return them to the Divisional Forest Officers as soon as possible. The reason for this is that it is obviously only fair to a forest contractor that he should be in possession of his signed agreement before he starts work on his contract, i.e., before July I.\n\nIn case the Conservators are not competent to sign the contract deeds such deeds will have to be sent by them to the Chief Conservator who is competent in view of r. 102A of Vol. I of the Forest Manual (under Chapter XIX) and the relevant orders of the Government to execute contracts for the sale of forest produce upto an amount of Rs. J,00,000 when payment is received in full at the time of delivery and upto Rs. 10,000 or upto Rs. 50,000 with the previous sanction of the Provincial 'Government when payment is not received in full at the time of delivery.\n\nThe exercise of this power by the Chief Conservator and other officers is subject to the rules given in the Government Notification and rule !(a) of these rules relating to contracts for forest produce reads: JI \"No timber or other forest produce may be ordinarily sold except on cash payment in full at the time of delivery. Payment in instalments may, however, be considered\n\nas payment in full at the tifi1e of delivery provided that there is a clause in the agreement to the effect that when Divisional .Forest Officer considers that the value of any forest produce removed by the purchaser equals or exceeds the amount of purchase money paid by him upto\n\n\n(1965] 3 S.C.11.\n\nthat time, the Divisional Forest Officer may stop further removaf until the purchaser has paid such further sum, as in the opinion of the Forest Officer, may be sufficient\n\nto cover the excess value of the forest produce removed , or to be removed\"\n\nIn view of this rule it would be deemed that the payment of the purchase price had been made in full at the time of delivery, though the actual payment was to be made in four instalments.\n\nWe are therefore of opinion that the sale of the forest produce to respondent No. 2 was finalised on the date of sale subject of course to the acceptance of his bid by the competent authority, the Chief Conservator of Forests and that the fact that the Chief Conservator signed the deed on May 3, 1957, does not make the sale effective from the date of his signature. His signatures do not ratify any action of the Divisional Forest Officer which he took beyond his competence, but simply completes the execution of the deed of contract and relate back its execution to the. date on which the sale took place and the contractor and the Forest Officer had signed the document.\n\nWe may now refer to the approach of the High. Court to this question of the deed of contract operating from the date of its execution by respondent No. 2. It was of opinion that respondent No. 2, and the Divisional Forest Officer, had made the contract in December 1956 long before April 28, 1957 and even if the Divisional Forest Officer was not competent to enter into the contract, his act had been subsequently ratified by the competent authority and that therefore the ratification related back to the date of the contract and had the same effect as if the Divisional Forest Officer had performed the act by the authority of the Chief ' Conservator of Forests. With respect, we do not consider this\n\napproach to be correct. The Divisional Forest Officer had authority under the statutory rules for holding the auction and for provisionally accepting the bid. All that he did was within his authority. He did not actually enter into the contract with respondent No. 2. He simply signed the standard form of the contract for the satisfaction of the competent authority to the effect that its accepting the bid and entering into the contract would be correct as is the usual official procedure where subordinates have to put up or forward papers to the superior officers for approval, sanction or orders. The right view of the entire procedure adopted in the case has been already stated by us above.\n\nThe other point urged by Mr. Agarwala, for the appellant, is that in view of r. 8 of the Forest Contract Rules which empowered the Divisional Forest Officer to stop the removal of forest produce sold on his finding that the value of the forest produce already removed by the contractor exceeded the amount of the instalments already paid by him, the seller in this case had reserved the right\n\nc I\n\nBADRI PRASAD v. STATE Oii' llUDHYA PRADESH (Raghubar Dayal, J.)\n\n39J\n\nof disposal of the forest produce until certain conditions were\n\nfulfilled and that therefore s. 25(1) of the Indian Sale of Goods Act, 1930 (Act III of 193'0) applies to the facts of the case andi that therefore, notwithstanding delivery of the forest produce to respondent No. 2 in February 1957, the property in it did not pass to respondent No. 2 until the conditions imposed by the seller were fulfilled. There is nothing in the deed of contract or in the Forest. Contract Rules which reserved such a right of disposal in the State. Right given to the Government under r. 8 is the right to stop the removal of forest produce when the value of the forest produce already removed exceeded the amount of the instalments paid. This is to regulate the. compliance with the conditions of the auction one of which was that ordinary forest\n\nproduce was to be sold on payment in full at the time of delivery.\n\nThe contractor had therefore to pay full price he had bid at the date of the sale or any day prior to the delivery of the goods to\n\nhim in February 1957. The provision for allowing payment by instalments is a concession for the convenience of the contractor and it is provided in the rule that payment in instalments may however be considered as payment in full at the time of delivery provided there be a clause in the agreement in accordance with the provisions of r. 8 of the Forest Contract Rules.\n\nReference may here be made to the provisions of s. 83 of the Indian Forest Act, 1927 (Act XVI of 1927). Subsection (I) provides that when any money is payable for or in respect of any forest produce, the amount thereof shall be deemed to be a first charge\n\non such produce, and such. produce may be taken possession of by a Forest Officer until such amount has been paid. Rule 8 of\n\nthe Forest Contract Rules is therefore in pursuance of the statutory provisions of s. 83 of the Forest Act which creates a lien on forest produce for the money payable to Government. Action\n\nwhich the Divisional Forest Officer can take for stopping the removal of the forest produce sold is in pursuance of the statutory authority conferred on him and not in pursuance of any terms of the contract between respondent No. 2 and the Government.\n\nWhen a contractor is deemed to have paid in full the price there could be no occasion for the Government to reserve a right of disposal of the property even when its delivery had been made\n\nto the purchaser. As already stated, it is s. 20 of the Sale of Goods Act which will apply to this case. This section provides that whrre there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time\n\nof payment of price or the time of delivery of the goods or both is postponed. The contract was unconditional, the goods sold were specific. They were in a deliverable state and therefore the property in the goods did pass at the time when the contract was made. This section would have applied even if the time of payment\n\nSUPBEJCE OOUIIT REPORTS [1965] 3 s.o.a.\n\nof price had been postponed. In the present case, as already stated, the payment allowed by instalments is to be deemed payment in full at the time of the delivery of the goods sold.\n\nThe last contention raised for the appellant is that as the contract was signed by the Chief Conservator about a week after\n\nthe goods lying in sections B, C and D had been burnt by fire, the contract must be deemed to have been not made at al! by the Chief Conservator who could not have contracted to sell goods which .did not exist. The contention really is that there could be no ratification of the act of the Divisional Forest Officer, who had no authority to enter into the contract, after the goods had ceased to exist and reliance is placed in support of this contention on what is stated at para 415 at p. 177 of Halsbury's Laws of England, Vol. I, III Edn. It is stated there:\n\n\"As to the time within which ratification may take place, the rule is that it must be either within a period fixed by the nature of the particular case, or within a reasonable time, after which an act cannot be ratified to the prejudice of a third .person\".\n\nThis is the general proposition and will not be applicable to this case as no third person is being prejudiced on account of the signing of the contract by the Chief Conservator on May 3, 1957, a week after the fire had destroyed certain goods purchased. Further, it is stated in the same paragraph:\n\n\"But by an anomalous rule limited to marine insurance a contract of marine insurance made by an agent on the\n\nprincipal's property may be ratified by the principal after notice of Joss\".\n\nThis proposition is well-settled in England. In Williams v. North China Insurance Co.(') this proposition was sought to be reviewed.\n\nCockburn C.J. said at p. 764:\n\n\"The existing authorities certainly show that when an insurance is effected without authority by one person on another's behalf, the principal may ratify the insurance even after the loss is known. Mr. Benjamin asked us, as a Court of Appeal, to review those authorities ...... Where an agent effected an insurance subject to ratification, the loss insured against is very likely to happen before ratification, and it must be taken that the insurance so effected involves that possibility as the basis of the contract. It seems to me that, both according to authority and the principles of justice, a ratification may be made in such a case\".\n\nThese observations would fully apply to the facts of the present case, even if we were of the view that the Chief Conservator ratified the unauthorised act of the Divisional Forest Officer on May\n\n(1) L.R. [1876] I C.P.D. 757.\n\nBADlll PRASAD v. STATE OF MADHYA PRADF.SH (Raghubar Dayal, J.) 395\n\n3; 1957, after the fire had taken place. The provisional acceptance of the bid and the signing of the deed by the Divisional Forest Officer must, in the circumstances, be held to be subject to ratifi cation. It was within the realm of possibility that the forest produce might be lost on account of fire or any other risk men tioned in r. 32 of the Forest Contract Rules before the deed of contract was formally signed by the Chief Conservator. The tract entered into therefore involved the possibility of the loss of goods by fire as the basis of the contract.\n\nLastly, reference may be made to r. 32 of the Forest Contract Rules which provides that a forest contractor shall not be entitled to any compensation whatever for any loss that may be sustained by reason of fire etc. This is not a suit for compensation by the\n\ncontractor respondent No. 2, but iii essence the basis of tlie suit is that the forest contractor did not get possession of the forest produce in sections B, C and D, that such produce was lost by fire and that therefore he was not to pay the second, third and\n\nfourth instalments and cannot be said to be iii default iii payment of those instalments. The loss of such goods by reason of fire therefore does not in any way give support to the claim of the appellant.\n\nWe are therefore of opinion that the appellant's suit has been rightly dismissed by the High Court. We accordingly dismiss the\n\nappeal. There will be no order as to costs.\n\nAppeal dismissed.", "total_entities": 70, "entities": [{"text": "BADRI PRASAD", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "BADRI PRASAD", "offset_not_found": false}}, {"text": "STATE OF MADHYA PRADESH AND ANOTHER", "label": "RESPONDENT", "start_char": 14, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADHYA PRADESH AND ANOTHER", "offset_not_found": false}}, {"text": "March 16, 1965", "label": "DATE", "start_char": 51, "end_char": 65, "source": "ner", "metadata": {"in_sentence": "BADRI PRASAD\n\nSTATE OF MADHYA PRADESH AND ANOTHER\n\nMarch 16, 1965\n\n[P. B. GAJENDRAGADKAR, C. J., RAGHUBAR DAYAL AND V. RAMA-\n\nSWAMI, JJ.J\n\nSale of Goods Act (3 of 1930), s. 20-Auction of cut timber of forest-Delivery-Destruction by fire before removal-Formal contract signed by competent authority later-If property in timbe1\"\n\npassed."}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 68, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL", "label": "JUDGE", "start_char": 97, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "Ragilubar Dayal", "offset_not_found": false}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 139, "end_char": 156, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 20", "label": "PROVISION", "start_char": 170, "end_char": 175, "source": "regex", "metadata": {"linked_statute_text": "Sale of Goods Act", "statute": "Sale of Goods Act"}}, {"text": "3rd May 1957", "label": "DATE", "start_char": 1286, "end_char": 1298, "source": "ner", "metadata": {"in_sentence": "On 3rd May 1957, the formal deed of contract, which was signed by the 2nd respondent and the Divisional Forest Officer on 24th December, was signed by the Chief Conservator of Forests, as required by the rules."}}, {"text": "24th December 1956", "label": "DATE", "start_char": 2395, "end_char": 2413, "source": "ner", "metadata": {"in_sentence": "HELD: There was an unconditional contract for the sale of specific goods in a deliverable state, the property in the timber\n\npassed to the 2nd respondent when the contract was made on 24th December 1956 under s 20 of the Sale of Goods Act, 1930, and possession was also given on 5th February 1957."}}, {"text": "s 20", "label": "PROVISION", "start_char": 2420, "end_char": 2424, "source": "regex", "metadata": {"statute": null}}, {"text": "Sale of Goods Act, 1930", "label": "STATUTE", "start_char": 2432, "end_char": 2455, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "5th February 1957", "label": "DATE", "start_char": 2490, "end_char": 2507, "source": "ner", "metadata": {"in_sentence": "HELD: There was an unconditional contract for the sale of specific goods in a deliverable state, the property in the timber\n\npassed to the 2nd respondent when the contract was made on 24th December 1956 under s 20 of the Sale of Goods Act, 1930, and possession was also given on 5th February 1957."}}, {"text": "s. 83", "label": "PROVISION", "start_char": 4509, "end_char": 4514, "source": "regex", "metadata": {"statute": null}}, {"text": "C. B. Agarwa", "label": "LAWYER", "start_char": 5005, "end_char": 5017, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwa/a, W. S. Bar/ingay and A. G. Ratnaparkhi, for\n\nthe appellant."}}, {"text": "W. S. Bar", "label": "LAWYER", "start_char": 5021, "end_char": 5030, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwa/a, W. S. Bar/ingay and A. G. Ratnaparkhi, for\n\nthe appellant."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 5041, "end_char": 5058, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwa/a, W. S. Bar/ingay and A. G. Ratnaparkhi, for\n\nthe appellant."}}, {"text": "M. Adhikari", "label": "LAWYER", "start_char": 5081, "end_char": 5092, "source": "ner", "metadata": {"in_sentence": "M. Adhikari, Advocate General f!•r the State of Madhya Pradesh, B. Sen, M. S. K. Sastri, M. N. Shroff, R. P. Kapur for I. N. Shroff, for the respondent No."}}, {"text": "State of Madhya Pradesh", "label": "RESPONDENT", "start_char": 5120, "end_char": 5143, "source": "ner", "metadata": {"in_sentence": "M. Adhikari, Advocate General f!•r the State of Madhya Pradesh, B. Sen, M. S. K. Sastri, M. N. Shroff, R. P. Kapur for I. N. Shroff, for the respondent No.", "canonical_name": "STATE OF MADHYA PRADESH AND ANOTHER"}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 5145, "end_char": 5151, "source": "ner", "metadata": {"in_sentence": "M. Adhikari, Advocate General f!•r the State of Madhya Pradesh, B. Sen, M. S. K. Sastri, M. N. Shroff, R. P. Kapur for I. N. Shroff, for the respondent No."}}, {"text": "M. S. K. Sastri", "label": "LAWYER", "start_char": 5153, "end_char": 5168, "source": "ner", "metadata": {"in_sentence": "M. Adhikari, Advocate General f!•r the State of Madhya Pradesh, B. Sen, M. S. K. Sastri, M. N. Shroff, R. P. Kapur for I. N. Shroff, for the respondent No."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 5170, "end_char": 5182, "source": "ner", "metadata": {"in_sentence": "M. Adhikari, Advocate General f!•r the State of Madhya Pradesh, B. Sen, M. S. K. Sastri, M. N. Shroff, R. P. Kapur for I. N. Shroff, for the respondent No.", "canonical_name": "M. N. Shroff"}}, {"text": "R. P. Kapur", "label": "LAWYER", "start_char": 5184, "end_char": 5195, "source": "ner", "metadata": {"in_sentence": "M. Adhikari, Advocate General f!•r the State of Madhya Pradesh, B. Sen, M. S. K. Sastri, M. N. Shroff, R. P. Kapur for I. N. Shroff, for the respondent No."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 5200, "end_char": 5212, "source": "ner", "metadata": {"in_sentence": "M. Adhikari, Advocate General f!•r the State of Madhya Pradesh, B. Sen, M. S. K. Sastri, M. N. Shroff, R. P. Kapur for I. N. Shroff, for the respondent No.", "canonical_name": "M. N. Shroff"}}, {"text": "Raghubar Dayal", "label": "JUDGE", "start_char": 5284, "end_char": 5298, "source": "ner", "metadata": {"in_sentence": "The judgment of the Court was delivered by Raghubar Dayal, J. This appeal, by special leave, arises out of a suit instituted by the appellant for a declaration that he was not liable to pay a certain amount originally due from defendant-respondent No.", "canonical_name": "Ragilubar Dayal"}}, {"text": "December 24, 1956", "label": "DATE", "start_char": 5887, "end_char": 5904, "source": "ner", "metadata": {"in_sentence": "The admitted facts of the case are that on December 24, 1956, respondent No."}}, {"text": "Harda", "label": "GPE", "start_char": 6000, "end_char": 6005, "source": "ner", "metadata": {"in_sentence": "2 purchased at the public auction sale held by the Divisional F.orest Officer, Harda, the cut timber and arkat trees of coupe No."}}, {"text": "March 1, May 15 and December 15, 1957", "label": "DATE", "start_char": 6454, "end_char": 6491, "source": "ner", "metadata": {"in_sentence": "The other instalments were due on March 1, May 15 and December 15, 1957."}}, {"text": "February 5, 1957", "label": "DATE", "start_char": 6902, "end_char": 6918, "source": "ner", "metadata": {"in_sentence": "This certificate, Exhibit D-1, was furnished on February 5, 1957 and stated that the respondent No."}}, {"text": "Badri Prasad", "label": "PETITIONER", "start_char": 7324, "end_char": 7336, "source": "ner", "metadata": {"in_sentence": "The appellant Badri Prasad signed this certificate as a witness.", "canonical_name": "BADRI PRASAD"}}, {"text": "June 30, 1958", "label": "DATE", "start_char": 7405, "end_char": 7418, "source": "ner", "metadata": {"in_sentence": "The work could continue upto June 30, 1958."}}, {"text": "clause 5", "label": "PROVISION", "start_char": 7702, "end_char": 7710, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 6", "label": "PROVISION", "start_char": 8106, "end_char": 8114, "source": "regex", "metadata": {"statute": null}}, {"text": "May 3, 1957", "label": "DATE", "start_char": 8211, "end_char": 8222, "source": "ner", "metadata": {"in_sentence": "The formal deed of contract was signed by the Chief Conservator of Forests on May 3, 1957 and the preamble of the deed gives the date of the making of the contract to be May 3, 1957."}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 8321, "end_char": 8335, "source": "regex", "metadata": {"statute": null}}, {"text": "December 24,\n\n1956", "label": "DATE", "start_char": 8709, "end_char": 8727, "source": "ner", "metadata": {"in_sentence": "2 and by the Divisional Forest Officer, Harda Division, dated December 24,\n\n1956."}}, {"text": "November 29, 1956", "label": "DATE", "start_char": 8825, "end_char": 8842, "source": "ner", "metadata": {"in_sentence": "2 and the Divisional Forest Officer on November 29, 1956, prior to the actual auction sale."}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 8882, "end_char": 8896, "source": "regex", "metadata": {"statute": null}}, {"text": "December 29, 1956", "label": "DATE", "start_char": 9159, "end_char": 9176, "source": "ner", "metadata": {"in_sentence": "The security bond was signed by the appellant on December 29, 1956 and by the Divisional Forest Officer on March 30, 1957 and.was countersigned by the Chief Conservator on May 3, 1957."}}, {"text": "March 30, 1957", "label": "DATE", "start_char": 9217, "end_char": 9231, "source": "ner", "metadata": {"in_sentence": "The security bond was signed by the appellant on December 29, 1956 and by the Divisional Forest Officer on March 30, 1957 and.was countersigned by the Chief Conservator on May 3, 1957."}}, {"text": "section 3", "label": "PROVISION", "start_char": 10606, "end_char": 10615, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 10695, "end_char": 10704, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 10776, "end_char": 10785, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 11023, "end_char": 11032, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 11076, "end_char": 11085, "source": "regex", "metadata": {"statute": null}}, {"text": "April 25, 1957", "label": "DATE", "start_char": 12366, "end_char": 12380, "source": "ner", "metadata": {"in_sentence": "On April 25, 1957 the appellant was told by the forest auth0; rities t\\lat no further removal of the forest produce would be allowed 'in view of the default of payment of the second instalment."}}, {"text": "Madanlal Pagare", "label": "OTHER_PERSON", "start_char": 12640, "end_char": 12655, "source": "ner", "metadata": {"in_sentence": "The licence book and the transit pass were taken back by the Government Forester, Madanlal Pagare."}}, {"text": "April 29, 1957", "label": "DATE", "start_char": 12798, "end_char": 12812, "source": "ner", "metadata": {"in_sentence": "The report about the loss from fire is Exhibit D2 dated April 29, 1957 and is signed by the contractor and Sheoprasad Parashar, the Forest Guard."}}, {"text": "Sheoprasad Parashar", "label": "OTHER_PERSON", "start_char": 12849, "end_char": 12868, "source": "ner", "metadata": {"in_sentence": "The report about the loss from fire is Exhibit D2 dated April 29, 1957 and is signed by the contractor and Sheoprasad Parashar, the Forest Guard."}}, {"text": "Ziri", "label": "GPE", "start_char": 14705, "end_char": 14709, "source": "ner", "metadata": {"in_sentence": "R.\n\nand until the licence and the transit pass were dulychecked and signed by the Coupe Guard or such other representative as may be present on the spot\", Para 5(C) mentioned:\n\n\"That the contractor or his men were further liable to carry the forest produce for check and examination of forest Depot-officers of Ziri, Rahetgaon and Timarni established for that purpose and after the cut wood was checked by the Depot Officers, the same."}}, {"text": "Rahetgaon", "label": "GPE", "start_char": 14711, "end_char": 14720, "source": "ner", "metadata": {"in_sentence": "R.\n\nand until the licence and the transit pass were dulychecked and signed by the Coupe Guard or such other representative as may be present on the spot\", Para 5(C) mentioned:\n\n\"That the contractor or his men were further liable to carry the forest produce for check and examination of forest Depot-officers of Ziri, Rahetgaon and Timarni established for that purpose and after the cut wood was checked by the Depot Officers, the same."}}, {"text": "Timarni", "label": "GPE", "start_char": 14725, "end_char": 14732, "source": "ner", "metadata": {"in_sentence": "R.\n\nand until the licence and the transit pass were dulychecked and signed by the Coupe Guard or such other representative as may be present on the spot\", Para 5(C) mentioned:\n\n\"That the contractor or his men were further liable to carry the forest produce for check and examination of forest Depot-officers of Ziri, Rahetgaon and Timarni established for that purpose and after the cut wood was checked by the Depot Officers, the same."}}, {"text": "BADRI PRASADV. STATE OF MADHYA PRADESH", "label": "RESPONDENT", "start_char": 16957, "end_char": 16995, "source": "ner", "metadata": {"in_sentence": "BADRI PRASADV."}}, {"text": "May 3,\n\n1957", "label": "DATE", "start_char": 21630, "end_char": 21642, "source": "ner", "metadata": {"in_sentence": "It was in accordance with this instruction that May 3,\n\n1957, the date on which the Chief Conservator signed the contract was mentioned in the preamble of the contract deed."}}, {"text": "clause 2", "label": "PROVISION", "start_char": 21945, "end_char": 21953, "source": "regex", "metadata": {"statute": null}}, {"text": "30th day of June 1958", "label": "DATE", "start_char": 22333, "end_char": 22354, "source": "ner", "metadata": {"in_sentence": "Such a period in the deed G of contract Exhibit D is the period 'from the date the forest contractor furnishes the necessary coupe boundary certificate after inspection of the contract area to the 30th day of June 1958, both days inclusive'."}}, {"text": "February 5. 1957", "label": "DATE", "start_char": 22426, "end_char": 22442, "source": "ner", "metadata": {"in_sentence": "The coupe boundary certificate was furnished on February 5."}}, {"text": "Ragilubar Dayal", "label": "JUDGE", "start_char": 22997, "end_char": 23012, "source": "ner", "metadata": {"in_sentence": "STA.TE Of lolAI>llY.l l.'JW>llllH (Ragilubar Dayal, J,) ll8ll\n\ncontract after checking it before the lessee is asked to sign it.", "canonical_name": "Ragilubar Dayal"}}, {"text": "April 28, 1957", "label": "DATE", "start_char": 27328, "end_char": 27342, "source": "ner", "metadata": {"in_sentence": "2, and the Divisional Forest Officer, had made the contract in December 1956 long before April 28, 1957 and even if the Divisional Forest Officer was not competent to enter into the contract, his act had been subsequently ratified by the competent authority and that therefore the ratification related back to the date of the contract and had the same effect as if the Divisional Forest Officer had performed the act by the authority of the Chief ' Conservator of Forests."}}, {"text": "Agarwala", "label": "OTHER_PERSON", "start_char": 28479, "end_char": 28487, "source": "ner", "metadata": {"in_sentence": "The other point urged by Mr. Agarwala, for the appellant, is that in view of r. 8 of the Forest Contract Rules which empowered the Divisional Forest Officer to stop the removal of forest produce sold on his finding that the value of the forest produce already removed by the contractor exceeded the amount of the instalments already paid by him, the seller in this case had reserved the right\n\nc I\n\nBADRI PRASAD v. STATE Oii' llUDHYA PRADESH (Raghubar Dayal, J.)\n\n39J\n\nof disposal of the forest produce until certain conditions were\n\nfulfilled and that therefore s. 25(1) of the Indian Sale of Goods Act, 1930 (Act III of 193'0) applies to the facts of the case andi that therefore, notwithstanding delivery of the forest produce to respondent No."}}, {"text": "s. 25(1)", "label": "PROVISION", "start_char": 29013, "end_char": 29021, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Sale of Goods Act, 1930", "label": "STATUTE", "start_char": 29029, "end_char": 29059, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 83", "label": "PROVISION", "start_char": 30376, "end_char": 30381, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Forest Act, 1927", "label": "STATUTE", "start_char": 30389, "end_char": 30412, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 83", "label": "PROVISION", "start_char": 30794, "end_char": 30799, "source": "regex", "metadata": {"linked_statute_text": "the Indian Forest Act, 1927", "statute": "the Indian Forest Act, 1927"}}, {"text": "s. 20", "label": "PROVISION", "start_char": 31388, "end_char": 31393, "source": "regex", "metadata": {"linked_statute_text": "the Indian Forest Act, 1927", "statute": "the Indian Forest Act, 1927"}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 31401, "end_char": 31418, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "SUPBEJCE OOUIIT REPORTS [1965", "label": "JUDGE", "start_char": 32008, "end_char": 32037, "source": "ner", "metadata": {"in_sentence": "This section would have applied even if the time of payment\n\nSUPBEJCE OOUIIT REPORTS [1965] 3 s.o.a."}}, {"text": "England", "label": "GPE", "start_char": 33706, "end_char": 33713, "source": "ner", "metadata": {"in_sentence": "This proposition is well-settled in England."}}, {"text": "Cockburn", "label": "JUDGE", "start_char": 33804, "end_char": 33812, "source": "ner", "metadata": {"in_sentence": "Cockburn C.J. said at p. 764:\n\n\"The existing authorities certainly show that when an insurance is effected without authority by one person on another's behalf, the principal may ratify the insurance even after the loss is known."}}, {"text": "Benjamin", "label": "OTHER_PERSON", "start_char": 34037, "end_char": 34045, "source": "ner", "metadata": {"in_sentence": "Mr. Benjamin asked us, as a Court of Appeal, to review those authorities ...... Where an agent effected an insurance subject to ratification, the loss insured against is very likely to happen before ratification, and it must be taken that the insurance so effected involves that possibility as the basis of the contract."}}]}
{"document_id": "1965_3_394_401_EN", "year": 1965, "text": "WORKMEN OF MIS DHARAMPAL PREMCHAND A\n\n(SAUGHANDID)\n\nMIS. DHARAMPAL PREMCHAND (SAUGHANDfil)\n\nMarch 16, 1965\n\n[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, M. HIDAYATULLAH\n\nAND V. RAMASWAMI, JJ.] fodustria! Disputes Act 1947 (14 of 1947), ss.\" 2(k), 10 and 36- \"lndustrial dispute\"-Meaning-D'smissed Employees only members of Union-Union raises dispute-Maintainability.\n\nOut of 45 employees of the respondent, 18 had become members of a Trade Union. Later, these 18 employees were dismissed by an order passed on the same day. The Union took up the cause and ultimately the dispute was referred to the Tll'.bunal, where the respondent raised the preliminary objection that the reference was invalid inasmuch as the dispute referred to the Tribunal was not an industrial dispute but was merely an individua:l dispute, and besides these d'smissed employees no other employees of the respondent was a member of the Union, and so the Union could not raise the dispute. This was upheld by the Tribunal. In appeal by speCial lea:ve;\n\nHELD: The appeal must be allowed.\n\nThe definition of \"industrial dispute\" in s. 2(k) shows that before rny d; spute raised by any person can be said to be an industrial dispute, it must be shown that it 's connected with the employment or non-employment of that person. This condition is satisfied in the present case. [396 DJ\n\nHaving regard to the broad policy underlying the Act, th's Court and indeed a majcrity of Industrial Tribunals are inclined to take the view that notwithstand''ng the width of the words used by the Act in. defining an \"industrial dispute\" it would be expedient to require that a dispute raised by a dism'ssed employee cannot becolne an industrial dispute, uµless it is supported either by his Union -or, in the absence of a Union by a number of workmen. [397 B-CJ\n\nConsiderations which would be relevant in dealing with a dispute relating to an individual employee's dism'ssal, would not be\n\nmaterial in dealing with a case where a largie number of employees have been dismissed on the same day. c399 G-HJ A Union of workmen may validly ra'se a dispute as to dismissal even though it may be a union of minority of the workmen empl-Oy- ed in rny establishment. Similarly if there 's no union of workmen in any establishment, a group of employees can raise the dispute and the dispute then hecomes an industr'al dispute. though it may relate to the dismissal of an individual employee. [399 HJ\n\nIn a given case it is conceivable that the wcrkmen of an establishment have no union of their own and some or all of them jo:in the unin. of another establishment belong'ng to the same industry.\n\nIn sue'. a case, if the said union take up the cause of the workmen working in an establ'shment which hrn no union of its cwn, it would\n\nbe unreasonable to bold that the dispute does not become an industrial dispute because the Union which has sponsored it is n<ib the union exclus'vely of the workmen working in the establ:shment concerned. In every case where industrial adjudication has to decide\n\n:a:\n\nc I\n\nWORKMEN v. Mjs DHARAMPAL (Gajendragadkar, C.J.) 395\n\nwhether a reference in regard to the dismissal of an industrial employee ls validly made or not it would be necessary to inquire whether the Union which has sponsored the case can fa'.rly claim a representative character, in such a way that its support to the case would make the dispute an industrial dispute. [400 F-H]\n\nBes'.des, 18 workmen, dismissed by an order passed on the same day, themselves form a group of workmen which would be just'.fied in supporting the cause of one another. [ 401 C]\n\nCentral Provinces Transport Service v. Raghunath Gopal Patwardhan, [1956] S.C.R. 956 and The Newspapers Ltd. v. The State Industrial Tribunal, U.P., [1957] S.C.R. 754, relied on.\n\nBombay Union of Journalists v. The H:ndu, Bombay, [1961] II L.L.J. 436, explained and a:stinguished.\n\n0.VIL APPELLATE JURISDICTION: Civil Appeal No. 532 of 1963.\n\nAppeal by special leave from the Award dated February 9, 1962, of the Industrial Tribunal, Delhi in l.D. No. 294 of 1961.\n\nSukumar Ghose, for the appellant.\n\nS. V. Gupte, Solicitor-General, S. Murthy and B. P. Maheshwari, for the respondent.\n\nThe Judgment of the Court was delivered by Gajendragadkar, C. J. The short question of law which arises for our decision in this appeal is whether the order passed by the Delhi A-dministration referring the dispute between the appellants, the workmen of Mis Dharampal Premchand, Saughandhi and the respondent, the employer, M/s Dharampal Premchand Saughandhi, Delhi was valid. The brder of reference has been passed by the Delhi Administration under ss. lO(l)(d) and\n\n12(5) of the Industrial Disputes Act, 1947 (No. 14 of 1947) (hereinafter called the Act). When the Industrial Tribunal, Delhi took\n\nup this matter for hearing, the respondent raised a preliminary objection that the reference was invalid inasmuch as the dispute referred to the Tribunal by the impugned order of reference is not an industrial dispute, but is merely an individual dispute which cannot be the subject-matter of a valid reference under s. 10(1) of the Act. This contention has been upheld by the Tribunal, with\n\nthe result that the Tribunal has held that it has no jurisdiction to adjudicate upon the merits of the dispute referred to it. It is against\n\nthis order that the appellants have. come to this Court by special leave. On behalf of the appellants, Mr. Sukumar Ghose contends\n\nthat the view taken by the Tribunal is not sound, and that raises the question as to whether the dispute referred to the Tribunal for its adjudication in the present case can be said to be an industrial dispute within the meaning of s. 2(k) of the Act.\n\nThe facts which it is necessary to state for the purpose of dealing with this point are very few and they are not in dispute.\n\nThe respondent is a firm which carries on business as perfumers and tobacconists in Chandni Chowk, Delhi. On the 28th July,\n\n1961, the respondent passed the impugned order dismissing the services of its 18 employees. On that date, the respondent had in its employment 45 employees. It appears that on the 16th July,\n\nSUPREME COUBT REPORTS\n\n[19611) 3 8,0, R.\n\n1961, the 18 employees who were dismissed by the respondent had become members of the Mercantile Employees' Association which is a registered Trade Union in Delhi. On the 29th July, 1961, the said Association took up the cause of the dismissed employees and carried the dispute before the Conciliation Officer, Delhi. The conciliation proceedings, .however, failed, and at the instance of the Association the present reference was made on the 6th September, 1961. It is in the light of these facts that .we have to decide whether the dispute referred to the Tribunal for its adjudication is an industrial dispute within the meaning of s. 2(k) of the\n\nAct or not.\n\nSection 2(k) defines an \"industrial dispute\" as meaning any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the condition of labour, of any person. This definition shows that before any dispute raised by any person can be said to be an industrial dispute, it must be shown that it is connected with the employment or non-employment of that person. This condition is satisfied in the present case, because the dispute is in relation to the dismissal of 18 workmen, and in that sense, it does .relate either to their employment or none.mployment. The question, however, still remains whether it is a dispute be.tween employers and workmen.\n\nLiterally construed, this definition may take within its sweep a dispute between a single workman and his employer, because the plural, in the context. will include the singular.\n\nBesides, in the present case, the dispute is in fact between 18 workmen on the one hand, and their employer on the other, and that satisfies the requirement imposed by the fact that the word \"workmen\" in the context is used in the plural. But the decisions of this Court have consistently taken the view that in order that dispute between a single employee and his employer should be validly referred under s. 10 of the Act, it is necessary that it should have been taken up by the Union to\n\nwhich the employee belongs or by a number of employees. On this view, a dispute between an employer and a single employee cannot, by itself, be treated as an industrial dispute, unless it is sponsored or espoused by the Union of workmen or by a number of workmen. In other words, if a workman is dismissed by his employer and the dismissed workman's case is that his dismissal is wrongful, he can legitimately have the said dispute referred for adjudication before an Industrial Tribunal under s. 10(1) of the\n\nAct, provided a claim for such a reference is supported either by the Union to which he belongs or by a number of workmen, vide Central Provinces -Transport Services v. Raghunath Gopal Patwardhan(') and The Newspapers Ltd. v. The State Industrial Tribunal,\n\nU.P.(').\n\n[Jfl.56] N.C.R.\n\n{!.) s.e.R. 7G4.\n\nWO]IKMEN lJ. M/s DHARAMPAL (Gajendra.gadkar, O.J.) 397\n\nThis view is based on a consideration of the general policy underlying the provisions of the Act. As is well-known, the Act has been passed for the investigation and settlement of industrial disputes, and its material provisions have been enacted, because it was thought expedient to make provision for such investigation and settlement of disputes. keeping in min.d the importance of the development of Trade Union Movement on proper lines in this country. Having regard to this broad policy underlying the Act, this Court and indeed a majority of Industrial Tribunals are inclined to take the view that notwithstanding the width of the words\n\nused by the Act in defining an \"industrial dispute\", it would be expedient to require that a dispute raised by a dismissed employee cannot become an industrial dispute, unless it is supported either by his Un.ion or, in the absence of a Union, by a number of workmen. Unless such a limitation was introduced, claims for reference may be made frivolously and unreasonably by dismissed employees, and that would be undesirable.\n\nBesides, in order to safeguard the interests of the working class in this country, it was thought that the development of Trade Union movement on healthy Trade Union lines was essential and that requires that disputes between employers and employees should be settled on a collective basis. A complaint against a wrongful dismissal should, therefore, be the subject-matter of reference, provided the workmen acting collectively take up the case of the dismissed employee and contend that the dismissal is unjustified or wrongful. It is on these grounds that this Court has held that an individual dispute arising from an alleged wrongful dismissal of an employee can be validly referred under s. 10 only if it is supported by the Union of the workmen to which the dismissed employee belongs or by a group of his co-employees. There is no dispute that the l\\Iercantile Employees' Association has taken up the dispute on behalf of the 18 dismissed employees. In fact, as we .have already indicated. the said Association took up this dispute before the Conciliation Officer and when the conciliation proceedings failed, it successful!v moved the Delhi Administration to make a reference under s. 10(1) of the Act.\n\nIt was, however, urged before the Tribunal that besides the 18 dismissed employees, no other employee of the respondent is a member of the said Association, and so. it was contended that H !he said Association was not authorised to raise the dispute, and m the absence of proof of the fact that the dispute had been sponsored or espoused by the Union of the employees of the respondent, the reference should be held to be invalid. This contention\n\nhas been upheld by the Tribunal; and so, the questie>n which we have to decide is whether the Tribunal was right in holding that the Mercantile Employees' Association had no authority to raise and support the present dispute.\n\nSUPREME COURT BEPOBTS [1965] 3 s.c.n.\n\nIn support of its conclusion, the Tribunal has relied upon the A decision of this Court in Bombay Union of Journalists and others\n\nv. The \"Hindu\", [Jombay & Anr.('). In that case, the services of one Salivateeswaran, who claimed that he was a full-time employee of the \"Hindu\", a daily newspaper published in Madras, were terminated and an industrial dispute was raised in respect of the said termination by the Bombay Union of Journalists. The contention B raised by the employer was that the reference was invalid inasmuch as the dispute referred for adjudication was an individual dispute and not an industrial dispute. This. contention was accepted by the Tribµnal; and that brought the dispute before this Court.\n\nIn dealing with the effect of the decision pronounced by this o Court in that case and particularly of certain observations maae in the course of the judgment, it is necessary to bear in mind one finding of facfwhich had been recorded by the Tribunal and confirmed by this Court. It appears that in that case, the appellants strongly relied upon a resolution passed on April 17, 1948, by which it .was alleged that the Bombay Union of Journalists had D taken up the dispute of Salivateeswaran against the \"Hindu\" and had decided to demand reliefs for the \"retrenched Journalist\".\n\nEvidence was led to prove that such.a resolution had been passed,\n\nbut that evidence was discarded both by the Tribunal and this Court. and this Court definitely found that \"the evidence tends to establish the plea raised by respondent No. 1 that the record of B the alleged resolution was fabricated with a view to support the case of Salivateeswaran\". In other words, in point of faOt, there was no reliable evidence to show that the Bombay Union of Journalists had taken up the case of the .retrenched employee Salivateeswaran. In view of this finding, it follows that the observations made by this Court in regard to the requirements of a valid referr ence under s. 10(1) of the Act are in the nature of obiter observa< tions.\n\nIt does appear that in dealing with the point of law as to the requirements of a valid reference, this Court observed that \"the dispute, in the present case, being prima facie an individual dis- G pute, in order that it may become an industrial dispute, it had to be established that it had been taken up by the Uni6n of employees\n\nof the \"Hindu\", Bombay, or by appreciable number of employees of the \"Hindu\", Bombay. Similarly; it was also observed that the \"principle that the persons who seek to support the cause of a workman must themselves be directly and substantially inter- B ested in the dispute, applied to the case before the Col!rt\"; and so, one of the tests which this Court applied was whether the persons who supported the cause, were employees of the same employer;\n\nif they were not, it was thought that they could not be regarded as interested in the dispute and as such, their support may not\n\n(') [I962J 3 s.c.R. 893.\n\n\"\"' '11•\n\nWORKMEN v. Mjs DHARAMPAL (Gajerulraga, dkar, C.J.) 399\n\nconvert an individual dispute into an industrial dispute. That is why the support lent to the cause of Salivateeswaran by the Bombay Union of Journalists was found to be insufficient to convert the cause into an industrial dispute.\n\nThese observations, no doubt, prima facie lend support to the view which the Tribunal has accepted. It appears that the. Bombay Union of Journalists had on its roll several working Journalists\n\nin other journals; but out of the three working journalists working with the \"Hindu\" at its Bombay office, two had become the members of the Bombay Union of Journalists, viz., Salivateeswaran and Venkateswaran. Tiwari, the third working journalist working in the office of the \"Hindu\", Bombay, had not become a member of the said Union. In the Office of the \"Hindu\", there were seven other workmen, but they were working on the administrative side.\n\nIn other words, out of the ten employees in the office of the \"Hindu\", seven were on the administrative side, and three on the\n\njournalism side; and out of these three, two were members of the Union. It is in the light of these facts that this Court expressed the opinion that the Bombay Union of Journalists was not competent to raise the dispute, and even if it had raised it, the dispute could not have become an industrial dispute.\n\nIn our opinion, the observations on which the Tribunal has relied in support of its conclusion in the present case, should not be read as laying down any hard and fast rule in the matter. Take, for instance, the case of an employer who employs 20 workmen,\n\nand assume that these workmen have not formed any Union. If the employer illegally dismisses all the workmen employed by him, it cannot be suggested that the dispute about the dismissal of these employees would not become an industrial dispute because there is no Union to support them and the dismissed employees themselves Cinnot convert their individual dispute into an industrial\n\ndispute. fn the present case, out of 45 employees 18 have been dismissed, and there is no evidence to show that these employees have a Union of their own. In such a case, it would be difficult\n\nto hold that though the number of employees dismissed is 18, they cannot raise a dispute by themselves in a formal manner. Considerations which would be relevant in dealing with a dispute relating to an individual employee's dismissal, would not be material in dealing with a case where a large number of employees have been dismissed on the same day. It is not disputed that a union of workmen may validly raise a dispute as to dismissal even though it may be a union of the minority of the workmen employed in any establishment. The majority union, of course, can raise a dispute, and if a reference is made under s. 10(1) of the Act at its instance, the\n\nreference, is valid. Similarly, if there is no union of workmen in any establishment, a group of employees can raise the dispute and the dispute then becomes an industrial dispute, though it may\n\nSUPREME COURT REPORTS [1965] 3 s.o.n.\n\nrelate to the dismissal of an individual employee. This position is not disputed. If that is so, it is difficult, we think, to apply or extend the observations made in the case of the Bombay Union of Journalists(') to the present case. In the present case, we are\n\ndealing with a reference made by the Delhi Administration in relation to the appellants' contention that the dismissal of 18 employees\n\nis invalid, and not with a case of the dismissal of a single employee. B Therefore, we do not think that the Tribunal was right in relying upon the decision in the case of the Bombay Union of Journalists(')\n\nin support of its conclusion that the present reference was invalid.\n\nIt is well-known that in dealing. with industrial disputes, industrial adjudication is generally reluctant to lay down any hard and fast rule or adopt any test of general or universal application. The approach of industrial adjudication in dealing with industrial disputes has necessarily to be pragmatic, and the tests which it\n\napplies and the considerations on which it relies would vary from case to case and would not admit of any rigid or inflexible formula. There is no doubt that the limitations introduced by the decisions of this Court in interpreting the effect of the definition prescribed by s. 2(k) of the Act were based on such pragmatic considerations. It may also be conceded that if\n\nthe dismissal of an individual employee working in an establishment in Delhi is taken up by the union of workmen in a place away from Delhi, that would clearly not make the dispute an industrial dispute.\n\nSection 36 of the Act which deals with the representation of parties, incidently suggests that the union which can raise an individual dispute as to a dismissal validly, should be a union of the same industry. Generally, it is the union of workmen working in the same establishment which has passed the impugned order of dismissal. But in a given case, it is conceivable that the workmen of an establishment have no union of their own, and some or all of them join the union of another establishment belonging to the same industry. In such a case, if the said union takes up the cause of the workmen working in an establishment which has no union of its own, it would be unreasonable to hold\n\nG that the dispute does not become an industrial dispute because the union which has sponsored it is not the union exclusively of the workmen working in the establishment concerned. In every case where industrial adjudication has to decide whether a reference in regard to the dismissal of an industrial employee is validly made or not, it would always be necessary to enquire whether the union which has sponsored the case can fairly claim a representative J! character in such a way that its support to the cause would make . the an industr!al dispute. \"lndust; y'' Iias been defined by s. 2(J) of the Act and 1t seems to us that m some cases, the union of workmen working in one industry may be competent to raise a dispute about the wrongful dismissal of an employee engaged in an establishment belonging to the same industry where workmen\n\n(') [1962) 3 S.C.R. 893.\n\nWOllKMENV. M/S DllARAMPAL (Gajendragadlu1r, C.J.) .[01\n\nA in such an establishment have no union of their own, and an appreciable number of such workmen had joined such other union before their dismissal. In fact, the object of trade union movement is to encourage the formation of larger and bigger unions on healthy and proper trade union lines, and this object would be frustrated if industrial adjudication were to adopt the rigid rule that B before any dispute about wrongful dismissal can be validly refer red under s. 10(1) of the Act, it should the support of the union consisting exclusively of the workmen working in the estab lishment concerned.\n\nBesides, there is another way in which this question can be o considered. If 18 workmen are dismissed by an order passed on the same day, it would be unreasonable to hold that they them selves do not form a group of workmen which would be justified in supporting the cause of one another. In dealing with this question, we ought not to forget the basic theory on which limita\n\ntion has been introduced by this Court on the denotation of the D words \"industrial dispute\" as defined by s. 2(k) of the Act. Therefore, we are satisfied that the Tribunal was in error in rejecting the reference on the preliminary ground that the dispute referred to it was an individual dispute and not an industrial dispute within the meaning of s. 2(k:).\n\nE The result is, the appeal is allowed, the finding of the Tribu nal on the preliminary issue is reversed, and the matter is sent back to the Tribnnal for disposal in accordance with law. There\n\nwould be no order as to costs.\n\nAppeal allowed.", "total_entities": 60, "entities": [{"text": "WORKMEN OF MIS DHARAMPAL PREMCHAND A\n\n(SAUGHANDID", "label": "PETITIONER", "start_char": 0, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "WORKMEN OF M/S DHARAMPAL PREMCHAND (SAUGHANDHI)", "offset_not_found": false}}, {"text": "MIS. DHARAMPAL PREMCHAND (SAUGHANDfil", "label": "RESPONDENT", "start_char": 52, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "MIS. DHARAMPAL PREMCHAND (SAUGHANDHI)", "offset_not_found": false}}, {"text": "March 16, 1965", "label": "DATE", "start_char": 92, "end_char": 106, "source": "ner", "metadata": {"in_sentence": "DHARAMPAL PREMCHAND (SAUGHANDfil)\n\nMarch 16, 1965\n\n[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, M. HIDAYATULLAH\n\nAND V. RAMASWAMI, JJ.]"}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 109, "end_char": 135, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 137, "end_char": 150, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 152, "end_char": 167, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 173, "end_char": 190, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Disputes Act 1947", "label": "STATUTE", "start_char": 203, "end_char": 220, "source": "regex", "metadata": {}}, {"text": "s. 2(k)", "label": "PROVISION", "start_char": 1101, "end_char": 1108, "source": "regex", "metadata": {"linked_statute_text": "Disputes Act 1947", "statute": "Disputes Act 1947"}}, {"text": "Having regard to the broad policy underlying the Act", "label": "STATUTE", "start_char": 1352, "end_char": 1404, "source": "regex", "metadata": {}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 3078, "end_char": 3092, "source": "ner", "metadata": {"in_sentence": "In every case where industrial adjudication has to decide\n\n:a:\n\nc I\n\nWORKMEN v. Mjs DHARAMPAL (Gajendragadkar, C.J.) 395\n\nwhether a reference in regard to the dismissal of an industrial employee ls validly made or not it would be necessary to inquire whether the Union which has sponsored the case can fa'.rly claim a representative character, in such a way that its support to the case would make the dispute an industrial dispute. [", "canonical_name": "Gajendra.gadkar,"}}, {"text": "0.VIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 3888, "end_char": 3916, "source": "ner", "metadata": {"in_sentence": "0.VIL APPELLATE JURISDICTION: Civil Appeal No."}}, {"text": "Sukumar Ghose", "label": "LAWYER", "start_char": 4072, "end_char": 4085, "source": "ner", "metadata": {"in_sentence": "Sukumar Ghose, for the appellant.", "canonical_name": "Sukumar Ghose"}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 4107, "end_char": 4118, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-General, S. Murthy and B. P. Maheshwari, for the respondent."}}, {"text": "S. Murthy", "label": "LAWYER", "start_char": 4139, "end_char": 4148, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-General, S. Murthy and B. P. Maheshwari, for the respondent."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 4153, "end_char": 4169, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-General, S. Murthy and B. P. Maheshwari, for the respondent."}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 4673, "end_char": 4702, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Industrial Tribunal, Delhi", "label": "COURT", "start_char": 4759, "end_char": 4785, "source": "ner", "metadata": {"in_sentence": "When the Industrial Tribunal, Delhi took\n\nup this matter for hearing, the respondent raised a preliminary objection that the reference was invalid inasmuch as the dispute referred to the Tribunal by the impugned order of reference is not an industrial dispute, but is merely an individual dispute which cannot be the subject-matter of a valid reference under s. 10(1) of the Act."}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 5109, "end_char": 5117, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "Sukumar Ghose", "label": "LAWYER", "start_char": 5434, "end_char": 5447, "source": "ner", "metadata": {"in_sentence": "On behalf of the appellants, Mr. Sukumar Ghose contends\n\nthat the view taken by the Tribunal is not sound, and that raises the question as to whether the dispute referred to the Tribunal for its adjudication in the present case can be said to be an industrial dispute within the meaning of s. 2(k) of the Act.", "canonical_name": "Sukumar Ghose"}}, {"text": "s. 2(k)", "label": "PROVISION", "start_char": 5691, "end_char": 5698, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "Delhi", "label": "GPE", "start_char": 5938, "end_char": 5943, "source": "ner", "metadata": {"in_sentence": "The respondent is a firm which carries on business as perfumers and tobacconists in Chandni Chowk, Delhi."}}, {"text": "28th July,\n\n1961", "label": "DATE", "start_char": 5952, "end_char": 5968, "source": "ner", "metadata": {"in_sentence": "On the 28th July,\n\n1961, the respondent passed the impugned order dismissing the services of its 18 employees."}}, {"text": "Mercantile Employees' Association", "label": "ORG", "start_char": 6284, "end_char": 6317, "source": "ner", "metadata": {"in_sentence": "It appears that on the 16th July,\n\nSUPREME COUBT REPORTS\n\n[19611) 3 8,0, R.\n\n1961, the 18 employees who were dismissed by the respondent had become members of the Mercantile Employees' Association which is a registered Trade Union in Delhi."}}, {"text": "29th July, 1961", "label": "DATE", "start_char": 6369, "end_char": 6384, "source": "ner", "metadata": {"in_sentence": "On the 29th July, 1961, the said Association took up the cause of the dismissed employees and carried the dispute before the Conciliation Officer, Delhi."}}, {"text": "6th September, 1961", "label": "DATE", "start_char": 6641, "end_char": 6660, "source": "ner", "metadata": {"in_sentence": "The conciliation proceedings, .however, failed, and at the instance of the Association the present reference was made on the 6th September, 1961."}}, {"text": "s. 2(k)", "label": "PROVISION", "start_char": 6833, "end_char": 6840, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(k)", "label": "PROVISION", "start_char": 6862, "end_char": 6874, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 8253, "end_char": 8258, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 8832, "end_char": 8840, "source": "regex", "metadata": {"statute": null}}, {"text": "WO]IKMEN", "label": "JUDGE", "start_char": 9152, "end_char": 9160, "source": "ner", "metadata": {"in_sentence": "WO]IKMEN lJ. M/s DHARAMPAL (Gajendra.gadkar, O.J.) 397\n\nThis view is based on a consideration of the general policy underlying the provisions of the Act."}}, {"text": "DHARAMPAL", "label": "JUDGE", "start_char": 9169, "end_char": 9178, "source": "ner", "metadata": {"in_sentence": "WO]IKMEN lJ. M/s DHARAMPAL (Gajendra.gadkar, O.J.) 397\n\nThis view is based on a consideration of the general policy underlying the provisions of the Act.", "canonical_name": "DllARAMPAL"}}, {"text": "Gajendra.gadkar,", "label": "JUDGE", "start_char": 9180, "end_char": 9196, "source": "ner", "metadata": {"in_sentence": "WO]IKMEN lJ. M/s DHARAMPAL (Gajendra.gadkar, O.J.) 397\n\nThis view is based on a consideration of the general policy underlying the provisions of the Act.", "canonical_name": "Gajendra.gadkar,"}}, {"text": "used by the Act", "label": "STATUTE", "start_char": 9853, "end_char": 9868, "source": "regex", "metadata": {}}, {"text": "s. 10", "label": "PROVISION", "start_char": 10973, "end_char": 10978, "source": "regex", "metadata": {"statute": null}}, {"text": "l\\Iercantile Employees' Association", "label": "ORG", "start_char": 11135, "end_char": 11170, "source": "ner", "metadata": {"in_sentence": "There is no dispute that the l\\Iercantile Employees' Association has taken up the dispute on behalf of the 18 dismissed employees."}}, {"text": "Delhi Administration", "label": "ORG", "start_char": 11423, "end_char": 11443, "source": "ner", "metadata": {"in_sentence": "the said Association took up this dispute before the Conciliation Officer and when the conciliation proceedings failed, it successful!v moved the Delhi Administration to make a reference under s. 10(1) of the Act."}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 11470, "end_char": 11478, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPREME COURT BEPOBTS [1965] 3 s.c.n", "label": "COURT", "start_char": 12167, "end_char": 12203, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT BEPOBTS [1965] 3 s.c.n."}}, {"text": "Salivateeswaran", "label": "OTHER_PERSON", "start_char": 12406, "end_char": 12421, "source": "ner", "metadata": {"in_sentence": "In that case, the services of one Salivateeswaran, who claimed that he was a full-time employee of the \"Hindu\", a daily newspaper published in Madras, were terminated and an industrial dispute was raised in respect of the said termination by the Bombay Union of Journalists."}}, {"text": "Madras", "label": "GPE", "start_char": 12515, "end_char": 12521, "source": "ner", "metadata": {"in_sentence": "In that case, the services of one Salivateeswaran, who claimed that he was a full-time employee of the \"Hindu\", a daily newspaper published in Madras, were terminated and an industrial dispute was raised in respect of the said termination by the Bombay Union of Journalists."}}, {"text": "Bombay Union of Journalists", "label": "ORG", "start_char": 12618, "end_char": 12645, "source": "ner", "metadata": {"in_sentence": "In that case, the services of one Salivateeswaran, who claimed that he was a full-time employee of the \"Hindu\", a daily newspaper published in Madras, were terminated and an industrial dispute was raised in respect of the said termination by the Bombay Union of Journalists."}}, {"text": "April 17, 1948", "label": "DATE", "start_char": 13294, "end_char": 13308, "source": "ner", "metadata": {"in_sentence": "It appears that in that case, the appellants strongly relied upon a resolution passed on April 17, 1948, by which it .was alleged that the Bombay Union of Journalists had D taken up the dispute of Salivateeswaran against the \"Hindu\" and had decided to demand reliefs for the \"retrenched Journalist\"."}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 14173, "end_char": 14181, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay", "label": "GPE", "start_char": 14648, "end_char": 14654, "source": "ner", "metadata": {"in_sentence": "It does appear that in dealing with the point of law as to the requirements of a valid reference, this Court observed that \"the dispute, in the present case, being prima facie an individual dis- G pute, in order that it may become an industrial dispute, it had to be established that it had been taken up by the Uni6n of employees\n\nof the \"Hindu\", Bombay, or by appreciable number of employees of the \"Hindu\", Bombay."}}, {"text": "Salivateeswaran", "label": "WITNESS", "start_char": 15847, "end_char": 15862, "source": "ner", "metadata": {"in_sentence": "Salivateeswaran and Venkateswaran."}}, {"text": "Venkateswaran", "label": "OTHER_PERSON", "start_char": 15867, "end_char": 15880, "source": "ner", "metadata": {"in_sentence": "Salivateeswaran and Venkateswaran."}}, {"text": "Tiwari", "label": "OTHER_PERSON", "start_char": 15882, "end_char": 15888, "source": "ner", "metadata": {"in_sentence": "Tiwari, the third working journalist working in the office of the \"Hindu\", Bombay, had not become a member of the said Union."}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 18010, "end_char": 18018, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPREME COURT REPORTS [1965] 3 s.o.n", "label": "COURT", "start_char": 18248, "end_char": 18284, "source": "ner", "metadata": {"in_sentence": "Similarly, if there is no union of workmen in any establishment, a group of employees can raise the dispute and the dispute then becomes an industrial dispute, though it may\n\nSUPREME COURT REPORTS [1965] 3 s.o.n."}}, {"text": "s. 2(k)", "label": "PROVISION", "start_char": 19571, "end_char": 19578, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 36", "label": "PROVISION", "start_char": 19873, "end_char": 19883, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(J)", "label": "PROVISION", "start_char": 21155, "end_char": 21162, "source": "regex", "metadata": {"statute": null}}, {"text": "[1962) 3 S.C.R. 893", "label": "CASE_CITATION", "start_char": 21415, "end_char": 21434, "source": "regex", "metadata": {}}, {"text": "WOllKMENV", "label": "JUDGE", "start_char": 21437, "end_char": 21446, "source": "ner", "metadata": {"in_sentence": "WOllKMENV."}}, {"text": "DllARAMPAL", "label": "JUDGE", "start_char": 21452, "end_char": 21462, "source": "ner", "metadata": {"in_sentence": "M/S DllARAMPAL (Gajendragadlu1r, C.J.) .[01\n\nA in such an establishment have no union of their own, and an appreciable number of such workmen had joined such other union before their dismissal.", "canonical_name": "DllARAMPAL"}}, {"text": "Gajendragadlu1r", "label": "JUDGE", "start_char": 21464, "end_char": 21479, "source": "ner", "metadata": {"in_sentence": "M/S DllARAMPAL (Gajendragadlu1r, C.J.) .[01\n\nA in such an establishment have no union of their own, and an appreciable number of such workmen had joined such other union before their dismissal.", "canonical_name": "Gajendra.gadkar,"}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 21959, "end_char": 21967, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(k)", "label": "PROVISION", "start_char": 22579, "end_char": 22586, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(k:)", "label": "PROVISION", "start_char": 22821, "end_char": 22829, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_411_420_EN", "year": 1965, "text": "TATA moN AND STEEL co. LTD.\n\nS. N. MODAK March 19, 1965\n\nJP. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO AND V. RAMASWAMI,\n\nJJ.J Industrial Disputes Act 1947 (14 of 1947\\, s. 33-Application pending industrial dispute-Industrial dispute finalty decided-If appiicaLion survives.\n\nThe appel'ant applied under s. 33(2)(b) of the Ind.ustrial Disputes Act, 1947 to the Industrial Tribunal for the Tribunal's approval of the order passed by the appellant discharging its employee -the respondent. This ai:plication was made because certain industrial disputes were prnding hetween the appellant and its employees, but when the matter came to be argued before the Tribunal. the pending disputes had been disposed of. HYence, the\n\na; ipel!ant contended that the application made by it no longer survived, which the Tribunal rejected. In appeal by Special Leave.\n\nHELD: The Tribunal was right in overruling the appellant's contention. [419 E].\n\nA proceeding validly commenced under s. 33(2)(bl would not automatically come to an end merely because the main industrial\n\nc!:spute had in the meanwhile been finally determined. [417 D-E].\n\nThe application of the appellant can 1in a sense, be treated as an incidental proceeding; but it is a separate proceeding all the\n\nsame, and in that sense it will be governed by the provi:::ions of s. 33(2)(b) as an independent' proceeding. It is not an interlocutory proceeding properly so called in its full sense and significance; it is a proceeding between the employer and his employee who was no doubt concuned with the main industrial dispute along with other employees; but it is nevertheless a proceeding between two\n\nparties in res; o2ct of a matter not covered by the main dispute. [417\n\nB-D].\n\nThe order being incomplete and inchoate until tile approval is obtained, cannot effectively terminate the relationship of the employer and the employee between the appellant and the respondent; and so even if the main industrial dispute was finally dcc'dcc1. the qucs'.ion abcut the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal, the employer would be bound to treat the respQndent: as its employee and pay him full wages for the period even though the appellant may subsequently proceed to terminate th<;- respondent's\n\nservice. [ 418 C-El.\n\nBesides, if it were held that with the final determination of the main industrial dispute such application would autcmatically come to an end, it would mean that s. 33-A under which a complaint by the employee is treated as an independent proceedin!\\,\n\nwould be rendered nugatory. [419 A].\n\nAlkali and Chemical Corporation of India Ltd. v. Seventh Industrial Tribunal. West Bengal and Ors. (1964) II L.L.J. 568, Mettur Industries Ltd. v. Sundara Naidu and Anr. (1963) II L.L.J. 303 and Shah (A.T.) v. State of Mysore and Ors\n\n(1964) I L.L.J. 237, disapproved\n\nKannan Devan Hill Produce Company Ltd. Munnar v. Miss Aleyamma Varughesa and Anr. (1962) II LL.J. 158, Om Prakash Sharma v. Industrial Tribunal, Punjab and Anr. (1962\\ II L.LJ. 272 and Amrit Bazar Patrika (Private) Ltd. v. Uttar Pradesh State\n\nIndustrial Tribunal and Ors. (1964) II L.L.J. 53, approved.\n\nCrvrL APPELLATE JURISDICTION: Civil Appeal No. 422 of A 1964.\n\nAppeal by special leave from the order dated September 29, 1962, of the Central Government Industrial Tribunal at Dhanbact in Application No. 45 of 1960 in Reference Nos. 40 and 34 of 1960.\n\nS. V. Gupte, Solicitor-Genera/ and /. N. Shroff, for the appel- B !ant.\n\nJitendra Sharma and Janardan Sharma, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nGajendragadkar, C.J. The short question of law which u arises in this appeal relates to the scope and effect of the provisions contained ins. 33(2) of the Industrial Disputes Act, 1947 (No. 14 o[ 1947) (hereinafter called 'the Act'). The appellant, the Tata Iron & Steel Co. Ltd., Jamadoba, applied before the Chairmun, Central Government Industrial Tribunal, Dhanbad, (hereafter called \"the Tribunal\") under s. 33(2)(b) of the Act for approval of the order D passed by it discharging the respondent, its employee S. N. Modak.\n\nfrom its service. In its application, the appellant alleged that the respondent had been appointed as a Grade II Clerk in the Chief Mining Engineer's Office at Jamadoba. One of the duties assigned to the respondent was to check arithmatical calculations ''cconling\n\nro sanctioned rate of the bills coming from the Heads of Department.\n\nE He was required to bring to the notice of the Deputy Chief Mining Engineer cases of discrepancies or irregularities, and also cases where additions or alterations in the bills had been made, but not initialled.\n\nOn re-checking of the bills which had been passed by the respondent. it was discovered that several additions and alterations made in the bills were not noticed by him and were not reported. This F failure constituted misconduct under the Standing Orders of the appeliant. For this misconduct, the respondent was charge-sheeted (No. 51 dated I /5-10-1960); that led to a departmental enquiry; and as a result of the report made by the Enquiry Officer, the appellant passed an order on December 17, 1960, terminating the services of the respondent as from December 24, 19o0. The present applica- G ticn was drafted on the 17th December and it reached the Tribunal on the 23rd December 1960. It appears that this applicction was made by the appellant under s. 33(2)!b), because four industrial disputes were pending between the aPpellant and its employees at\n\nthat time in References Nos. 27, 34, 40 & 49 of 1960.\n\nAfter this application was filed, the challenged the propriety of the order passed by the appelknt for which <:pproval was sought by it, and several contentions were raised by him in\n\nsupport of his case that the enquiry held against him was invalid and improper and the order of dism!ssal passed against him was the result of ma/a fide.'. Evidence was led by the parties in support of \\heir respective plea'\n\nTATA IRON v. s. N. '10DAK (Gajendragadkar' C.J.)\n\nWhen the matter came to be ai\"gued before the Tribunal, it was urged by the appellant that the application made by it no longer\n\nbecause all the industrial disputes which were pending between the appellant and its employees and as a result of the pcndency of which it had made the application under s. 33(2)(b) of the Act, had been decided by the Tribunal; Awards had been made in all the said References and they had been published in the Gazette. It does appear that the four References wl]ich we have\n\nmentioned, ended in Awards made on 31-10-1960, 8 11-1960, 14-4-1961, anj 22-9-1961 respectively. The award on the present apo:; cation was made on 29-9-1962, and it is common grnund that at the time when the appellant urged its contention that the 2pplication made by it did not survive any longer, all the four References hal}, in fact, been disposed of. The plea thus raised by the naturally raised the questicn as to what would be the effect of the awards pronounced by the Tribunal on industrial disputes pending\n\nbefore it at the time when the appellant moved the Tribunal under s. 33(2)(b)? If, as a result. of the pendency of an industrial dispute between an employer and his emplpyees, the employer is required to apply for approval of the dismissal of his employee under s. 33 (2)(b), does such an application survive if the main industrial dispute is me:mwhile finally decided and an award pronounced on it? That is the question which this appeal raises for our decision, and the answer to this question would depend upon a fair determination of the true scope and effect of the provisions of s. 33(2)\\b) of the Act.\n\nThis question has been answered by the Tribunal against the appellant. Having held that the application made by the appellant survived the decision of the main industrial disputes, the Tribunaf has considered the merits of the controversy between the parties.\n\nAfter examining the evidence, the Tribunal has found that the enquiry made by the appellant before passing the impugned order of discharge against the respondent. was invalid. It has pointed out that the Enquiry Officer, Mr. Watcha, did not in fact record the statement of any witnesses who gave evidence before him. and the on! y record of the enquiry is the report made by Mr. Watcha. It has also noticed that the enquiry in question suffered from the serious infirmity that Mr. Watcha who acted as the Enauiry Officer himself gave evidence against the respondent, and the evidence which was actually recorded in the case was taken not by Mr. Watcha, but by Paravatiyar. In the result, the conclusion of the Tribunal on the merits was that the enquiry \"was a farce, a mere eve-wash,\n\nbiased with pre-determined result, and entirely mq!a fide and not at all fair\". As a result of this conclusion, the Tribunal refused to accord approval to the order of discharge passed by the appellant agaimt the respondent. It is against this crder that the appellant has corr'.e 1,1 this Court by special leave.\n\nRc•.erfo1g then to the question of construing s. 33 of the Act,. we may refer to some genernl considerations at the outset. Broadly\n\n411 SUPREME COUlt'l' REPORTS [1965] 3 s.c.R.\n\nWtted, s. 33 provides that the conditioi; is of service, etc. should n:main unchanged under certain circumstances during the pendency of industrial adjudication proceedings. It is unnecessa; y to refer to\n\nthe previous history of this !; ection. It has undergone many changes; but for the purpose of the present appeal, we need not refer to the said changes. We are concerned withs. 33 as it stands after its final\n\namendment in 1956. Section 33 consists of five sub-sections. For the\n\npurpose of this appeal, it is necessary to read sub-sectio:;; s (I) &\n\n(2) of s. 33 :-\n\n. ' \"(!) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal:.in n:spect of an industrial dispute, no employer shall--\n\n(a) in regard to any matter C;}nnected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immdiately before the comme11cement of such proceedings; or\n\n(b) for any misconduct connected with the dispute,\n\ndischarge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute save with the express permission ir1 writing of the authority before which the proceeding is pending.\n\n(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute,-\n\n(a) alter, in regard to any matter not connected with\n\nthe dispute, the c6nditions of service applicable to that workman immediately before the commencement of such prcceeding; or\n\n(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that worktm n: Provided that no such workman shall be discharged\n\nor dismissed, unless he has been paid wages one month and an application has been made by the employer to the authority befcre which the proceeding is pending for approval of the <>ction taken by the employer\".\n\nA reading of the above two sub-sections of s. 33 makes it clear that 'its provisions are intended to be applied during the pendency of any i•roceeding either in the nature of ccnciliation proceeding or in the\n\n. TATA IRON\"· 8. N. MODAK (Gajendra.qadkar, C.J.) 415.\n\nnature of proceeding by way of reference made under s. 10. The pendency of the. relevant proceeding is thus one of the conditions prescribed for the application ofs. 33. Section 33(1) also shows that the provisions of the said sub-secticn protect workmen concerned in the main dispute which is pending, conciliation or acljudication.\n\neffect of sub-s. (I) is that where the conditions precedent prescribed by it are satisfied, the employer is prohibited from taking any action in regard to matters specified by clauses (a) & (b) against employees concerned in such dispute without the preyious expfess permission in writing of the authority before whjch the proceedmg\n\nis pen:ling. In other words, in cases falling under sub-s. (!), before any action can be taken by the employer to which reference is made by clauses (a) & (b), he must obtain the express permission of the specified authority. Section 33(2) proceeds to hy dowr. a similar p;-ovision and the conditions precedent prescribed by it are the same as those ccntained in s. 33(1). The proviso to s. 33(2) is important for our purpose. This proviso shows that where action is intended to be taken by an employer against any of his employees which falls within the scope of cl. (b), he can do so, subject to the requirements of the proviso. If the employee is il)tended to be discharged or dismissed, an order can be passed by the employer against him, provided he has paid such employee the wages for one month, a!'d he has made an application to the authority before which the pro\n\nis pending for approval of the action taken by him. The requirements o, f the pmviso have been frequently considered by Industrial Tribunals and have been the subject-matter of• decisions of this Court as well. It is now well-settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction; and stated generally, the employer must either pay or offer the salary for one mcnth to the empioyee before passing an order of his discharge or dismissal, and must apply to the specified authority for approval of his action at the same time, or within such reasonably short time thereafter as to fcrm part of the same transaction. It is also settled that if approval is granted, it takes effect from the date of the order passed by the employer for which approval was sought. If approval is not granted, the order of dismissal or discharge passed by the employer is wholly invalid or inoperative, and the employee can legitimately claim to ccntinue to be in the employment of the employer notwithstandmg the order passed by him dismissing or discharging him. In other words, approval by the prescribed authority makes the order of discharge or dismissal effective; in the absence of SUl'h all order is invalid and inoperative in law.\n\nSub-sections (3) & (4) of s. 33 deal with cases of protected workmen, but with the provisions contained in these two sub-sectiom . . we are not concerned m the present appeal. That leaves s. 33(3) to be ccmsidrred. This sub-section requires th\"! where an application is made under the proviso to sub-s. (2), the specified authority has to\n\ndispose of lhe application without delay; and indeed, it expressly\n\nptescribes that the said proceedings must be dealt with as expeditiously as possible. This sub-section is naturally limited to' cases falling under sub-s. (2). In regard to cases falling under sub-s. (!),\n\nthe employer can act only with the previous express sanction of the prescribed authority, and, therefore, there is no need to make any provision in regard to an applicat_ion which the employer may make under sub-s. (I) requiring that the said application should be dealt with expediticusly. That is the general scheme of s. 33.\n\nIt is quite clear that s. 33 imposes a ban on the employer exercising his common-law, statutory, or contractual right to terminate the services of his employee3 according to the contract or the provisions of .law governing such service. In all cases where industrial disputes' are pending between the employers and their employees, it was thought necessary that such disputes should be adjudicated upon by the Tribunal in a peaceful atmosphere, undisturbed by any subsequent cause for bitterness or unpleasantness. It was, however, realized that if the adjudication of such disputes takes long the employers cannot be prevented absolutely from taking action which is the subject matter of s. 33(1) and (2). The Legislature, therefore, devised a formula for reconciling the need of the employer tc have liberty to take action against his employees, and the necessity for keeping the atmosphere calm and peaceful pending adjudication of industrial disputes. In regard to actions covered by s. 33(1), previous permission has to be _obtained by the employer, while in regard to actions falling under s. 33(2), he has to obtain subsequent approval, subject to the conditions which we have already considered. In that sense, it would be correct to say that the pendency of an industrial dispute is in the nature bf a condition precedent for the applicability of s. 33(1) & {2). It would, prima facie,\n\nseem to follow that as soon as the said condition precedent ceases to exist, s. 33(1) and (2) should also cease to apply; and the learned Solicitor-General for the appellant has naturally laid considerable emphasis on this basic aspect of the matter.\n\nIt is also true that having regard to the conditions precedent prescribed by s. 33(1) and (2), it may be possible to describe the application made by the .employer either under s. 33(1) or under s. 33(2) as incidental to the main industrial dispute pendin!! between the parties. We have noticed that such applications have t;;- be made before the specified authority which is dealing with the main industrial dispute; and so, the argument is that an incidental or an inter- !ocutory application which arises from the pendency of the main\n\ncannot survive the decision of the main dispute itself: That is another aspect of the matter on which the learned Sohc1to.r-c:; eneral. relit; s. He urges that it is during the pendency of\n\nmam mdustnal distmte that s. 33 apphes; that it applies in relation to workmen concerned with such main dispute; and that the\n\n'l'ATA IRON v. s. N. MO!lAK (liu:ie11dragadkar, c. J.) 417\n\np iwer conferred by it has to be exercised by the authority before \\\\ hich the main dispute is pending. These broad features of s. 33 impress upon the applications made under s. 33(1) and (2) the character of interlocutory proceedings, and thus considered, interlocutory proceedings must be deemed to come to an end as soon as the main dispute has been finally determined.\n\nOn the other band, there are several considerations which do not support the argument of the appellant that as soon as the main industrial dispute is decided, the application made by it for approval\n\nunder s. 33(2) should automatically come to an end. As we have already indicated, the application of the appellant can, in a sense,\n\nbe treated as an incidental proceeding; but it is a separate proceeding all the same, and in that sense, it will be governed by the provisions of s. 33(2)(b) as an independent proceeding. It is not an interlocutory proceeding properly so calle_d in its full sense and significance; it is a proceeding between the employer and his employee who was no doubt concerned with the main industrial dispute along with other employees; but it is nevertheless a proceeding between two parties in respect of a matter not covered by the said main dispute. It is. therefore, difficult to accept the argument that a proceeding which validly commences by way of an application made by the employer under s. 33(2)(b) should automatically come to an end because the main dispute has in the meanwhile been decided. What is the order that should be passed in such a proceeding, is a question which cannot be satisfactorily answered, unless it is held that the proceeding in question must proceed according to law and dealt with as such.\n\nIn .this connection it is significant that though the Legislature has specifically issued by s. 33(5) a directive to the specified auihorities to dispose of the applications without delay and_ act as expeditiously as possible, it has not made any provision indicating that if the decision on the applications made under s. 33(2) is not reached before the main dispute is decided no order should be passed on such applications. There is little doubt that the Legislature intends that applications made under s. 33(2) should be disposed of well before the main dispute is determined; but failure to provide for the automatic termination of such applications in case the main dispute is decided before such applications are disposed of, indicates that the Legislature intends that the proceedings which begin with an application properly made under s. 33(2) must run their own course and must be dealt with in accordance with law. The direction that the said proceeding should be disposed of as expeditiously as possible emphasises the fact that the legislature intended that proper orders .should be passed on such applications without delay, but according to law and on the merits of the applications\n\nthemselves.\n\nIt is, however, urged by the learned Solicitor-General that it would be futile to allow the present application to proceed any\n\nfurther. because the appellant can proceed to dismiss the respondent notwithstanding the fact that the Tribunal does not accord its approval to its order in question. This argument, in our opinion, is misconceived. It cannot be denied that with final determination of the main dispute between the parties, the employer's right to\n\nterminate the services of the respondent according to the terms of service revives and the ban imoosed on the exerCise of the said power i> lifted. But it cannot overlooked that for the period between the date on which the appellant passed its order in question ag2inst the respondent, and the date when the ban was lifted by the final determination of the main dispute, the order cannot be said to be valid unless it receives the approval of the Tribunal:.\n\nIn other words, the order being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and the employee between the appellant and the\n\nrespondent; and so, even if the main industrial dispute is finally decided, the question about the validity of the order would stiT! have to be tried and if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and pay him his full wages for the period even though the appellant may subsequently proceed to terminate the respondent's services. Thereilore, the argument that the proceedings if continued beyond the date of the final decision cf the main industrial dispute would become futile and meaningless, cannot be accepted.\n\nThere is another aspect of this matter to which reference must be made. Section 33A makes a special provision for adjudication as to whether any employer has contravened the provisions of s. 33.\n\nThis section has conferred on industrial employees a very valuable right of seeking the protection of the Industrial Tribunal in case their' rights have'been violated contrary to the provisions of s. 33.\n\nSection 33-A provides that wherever an employee has a grievance that he has been dismissed by his employer in contravention of s. 33(2), he may make a complaint to the specified authorities and such a complaint would\" be tried as if it was an industrial dispute referred to the Tribunal under s. 10 of the Act. In other words, the complaint is treated as an independent industrial proceediHg and an award has to be pronounced on it by the Tribunal concerned.\n\nNow. take the present case and how the acceptance of the appellant's argument would work. As we have already pointed out, in the present case the Tribunal has considered the merits of the appellant's prayer that it should accord approval to tl:e proposed dismissal of the respondent and it has come to the conclusion that having regard to the relevant circumstances, , the approval should not be accorded. If the appellant's argument is accepted and it is held that as soon as the main industrial disputes were finallv deter' mined, the application made by the appellant under s. 33(2l automatically came to an end, the respondent would not be able tc\n\nTATA TRON v. s. N. MODAK (Gqjemlragadkar, C.J.)\n\nget any relief against the appellant for the wrongful termination of his services between the date of the impugned order and the final disposal of the main industrial disputes; and this would mean\n\nthat in a case like the present, s: 33A would be rendered nugatory, because the employer having duly applied under s. 33(2)(b), the employee cannot complain that there has been a contravention of s. 33 by the employer, even though on the merits the dismissal of\n\nthe employee may not be justified. That, in our opinion, could not have been the intention of the Legislature. This aspect of the matter supports the conclusion that a proceeding validly commenced under s. 33(2)(b) would not automatically come to an end merely\n\nbecause the main industrial dispute has in the meanwhile been finally determined.\n\nIt is of course true that under s. 33 the authority to grant permission or to accord approval in cases falling under s. 33(1)\n\nand (2) respectively is vested in the. Tribunal, before which the main industrial dispute is pending, but that is not an unqualified or inflexible requirement, because s. 33B(2) seems to permit transfers of applications before one Tribunal to another, and in that sense. the argument urged by .the appellant that the condition that a specified Tribunal alone can deal with applications made to it is an inflexible condition, cannot be accepted. We are, therefore, satisfied that the Tribunal was right in over-ruling the contention raised by the appellant that the application made by it for approval under s. 33(2)(b) ceased to constitute a valid proceeding by reason\n\nof the fact that the main industrial disputes, the pendency of which had !llade the application necessary, had been finally decided.\n\nThis questk .1 has been consi'1ered by several High Courts in this country. The High Courts of Calcutta, Madras and Mysore have taken the view for which the learned Solicitor-General has contended before us, vide Alkali and Chemical Corporation of India Ltd.\n\nv. Seventh Industrial Tribunal, West Bengal and Ors.('); Mettur\n\nIndustries Ltd. v. Sundara Naidu and Anr.;(') and Shah (A.T.) v.\n\nState of Mysore and Ors.(') respectively. On the other hand, the Kerala, the Punjab, and the Allahabad High Courts have taken the view which we are inclined to adopt, vide Kannan Devan Hill Produce Company Ltd., Munnar v. Miss Aleyamma Varughese and\n\nAnr.;(') Om Parkash Sharma v. Industrial Tribunal, Punjab and Anr.;(') and Amrit Bazar Patrika (Private) Ltd. v. Uttar Pradesh State Industrial Tribunal and Ors.(') respectively. In our opinion, the former view does not, while the latter does, eorrectly represent\n\nthe true legal position under s. 3J(2)(b).\n\nThat takes us to the merits of the findings recorded by the Tribunal in support of its final decision not to accord approval to the\n\n(') [1964) II L.L.J. 568.\n\n(1) [1964) I L.L.J. 237.\n\n(1) [1962)'II L.L.J. 272.\n\n(') [1963] II L.L.J. 3()3.\n\n(1) [1962] II L.L.J. 158.\n\n(') [1964] II L.L.J. 53.\n\n'LI B(N)SBCI-14\n\nSUPREME COURT REPORTI: [1965] 3 s.c.R.\n\naction proposed to be taken by the appellant against the respondent.\n\nWe have already indicated very briefly the nature and effect of the said findings. The learned Solicitor-General no doubt wanted to contend that the said findings were not justified on the evidence adduced before the Tribunal. We did not, however, allow the learned Solicitor-General to develop this point because, in our opinion, the findings in question are based on the appreciation of oral evidence, and it cannot be suggested that there is no legal evidence on the record to support them. Usually, this Court does not under Art. 136 of the Constitution entertain a plea that the findings of fact recorded by the Industrial Tribunal are erroneous on the ground that they are based on a misappreciation of evidence. The propriety or the correctness of the findings of fact is not ordinarily allowed to oe challenged in such appeals.\n\nThe result is the appeal fails and is dismissed with costs.\n\nAppeal dismissed.", "total_entities": 90, "entities": [{"text": "TATA moN AND STEEL co. LTD", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "Tata Iron & Steel Co. Ltd.,", "offset_not_found": false}}, {"text": "S. N. MODAK", "label": "RESPONDENT", "start_char": 29, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "S. N. MODAK", "offset_not_found": false}}, {"text": "March 19, 1965", "label": "DATE", "start_char": 41, "end_char": 55, "source": "ner", "metadata": {"in_sentence": "S. N. MODAK March 19, 1965\n\nJP."}}, {"text": "JP. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 57, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 86, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "V. RAMASWAMI,\n\nJJ", "label": "JUDGE", "start_char": 104, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Industrial Disputes Act 1947", "label": "STATUTE", "start_char": 124, "end_char": 152, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 33", "label": "PROVISION", "start_char": 167, "end_char": 172, "source": "regex", "metadata": {"linked_statute_text": "Industrial Disputes Act 1947", "statute": "Industrial Disputes Act 1947"}}, {"text": "s. 33(2)(b)", "label": "PROVISION", "start_char": 301, "end_char": 312, "source": "regex", "metadata": {"linked_statute_text": "Industrial Disputes Act 1947", "statute": "Industrial Disputes Act 1947"}}, {"text": "Disputes Act, 1947", "label": "STATUTE", "start_char": 332, "end_char": 350, "source": "regex", "metadata": {}}, {"text": "s. 33", "label": "PROVISION", "start_char": 2489, "end_char": 2494, "source": "regex", "metadata": {"statute": null}}, {"text": "CrvrL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3192, "end_char": 3220, "source": "ner", "metadata": {"in_sentence": "CrvrL APPELLATE JURISDICTION: Civil Appeal No."}}, {"text": "S. V. Gupte", "label": "OTHER_PERSON", "start_char": 3446, "end_char": 3457, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-Genera/ and /. N. Shroff, for the appel- B !"}}, {"text": "N. Shroff", "label": "LAWYER", "start_char": 3484, "end_char": 3493, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-Genera/ and /. N. Shroff, for the appel- B !"}}, {"text": "Jitendra Sharma", "label": "LAWYER", "start_char": 3519, "end_char": 3534, "source": "ner", "metadata": {"in_sentence": "Jitendra Sharma and Janardan Sharma, for the respondent."}}, {"text": "Janardan Sharma", "label": "LAWYER", "start_char": 3539, "end_char": 3554, "source": "ner", "metadata": {"in_sentence": "Jitendra Sharma and Janardan Sharma, for the respondent."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 3621, "end_char": 3635, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendragadkar, C.J. The short question of law which u arises in this appeal relates to the scope and effect of the provisions contained ins.", "canonical_name": "Gajendra.qadkar,"}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 3776, "end_char": 3805, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Tata Iron & Steel Co. Ltd.,", "label": "PETITIONER", "start_char": 3874, "end_char": 3901, "source": "ner", "metadata": {"in_sentence": "The appellant, the Tata Iron & Steel Co. Ltd., Jamadoba, applied before the Chairmun, Central Government Industrial Tribunal, Dhanbad, (hereafter called \"the Tribunal\") under s. 33(2)(b) of the Act for approval of the order D passed by it discharging the respondent, its employee S. N. Modak.", "canonical_name": "Tata Iron & Steel Co. Ltd.,"}}, {"text": "Central Government Industrial Tribunal, Dhanbad", "label": "COURT", "start_char": 3941, "end_char": 3988, "source": "ner", "metadata": {"in_sentence": "The appellant, the Tata Iron & Steel Co. Ltd., Jamadoba, applied before the Chairmun, Central Government Industrial Tribunal, Dhanbad, (hereafter called \"the Tribunal\") under s. 33(2)(b) of the Act for approval of the order D passed by it discharging the respondent, its employee S. N. Modak."}}, {"text": "s. 33(2)(b)", "label": "PROVISION", "start_char": 4030, "end_char": 4041, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "S. N. Modak", "label": "RESPONDENT", "start_char": 4135, "end_char": 4146, "source": "ner", "metadata": {"in_sentence": "The appellant, the Tata Iron & Steel Co. Ltd., Jamadoba, applied before the Chairmun, Central Government Industrial Tribunal, Dhanbad, (hereafter called \"the Tribunal\") under s. 33(2)(b) of the Act for approval of the order D passed by it discharging the respondent, its employee S. N. Modak.", "canonical_name": "S. N. MODAK"}}, {"text": "Jamadoba", "label": "GPE", "start_char": 4309, "end_char": 4317, "source": "ner", "metadata": {"in_sentence": "In its application, the appellant alleged that the respondent had been appointed as a Grade II Clerk in the Chief Mining Engineer's Office at Jamadoba."}}, {"text": "/5-10-1960", "label": "DATE", "start_char": 5043, "end_char": 5053, "source": "ner", "metadata": {"in_sentence": "51 dated I /5-10-1960); that led to a departmental enquiry; and as a result of the report made by the Enquiry Officer, the appellant passed an order on December 17, 1960, terminating the services of the respondent as from December 24, 19o0."}}, {"text": "December 17, 1960", "label": "DATE", "start_char": 5184, "end_char": 5201, "source": "ner", "metadata": {"in_sentence": "51 dated I /5-10-1960); that led to a departmental enquiry; and as a result of the report made by the Enquiry Officer, the appellant passed an order on December 17, 1960, terminating the services of the respondent as from December 24, 19o0."}}, {"text": "December 24, 19o0", "label": "DATE", "start_char": 5254, "end_char": 5271, "source": "ner", "metadata": {"in_sentence": "51 dated I /5-10-1960); that led to a departmental enquiry; and as a result of the report made by the Enquiry Officer, the appellant passed an order on December 17, 1960, terminating the services of the respondent as from December 24, 19o0."}}, {"text": "23rd December 1960", "label": "DATE", "start_char": 5369, "end_char": 5387, "source": "ner", "metadata": {"in_sentence": "The present applica- G ticn was drafted on the 17th December and it reached the Tribunal on the 23rd December 1960."}}, {"text": "s. 33(2)", "label": "PROVISION", "start_char": 5454, "end_char": 5462, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)(b)", "label": "PROVISION", "start_char": 6371, "end_char": 6382, "source": "regex", "metadata": {"statute": null}}, {"text": "31-10-1960", "label": "DATE", "start_char": 6612, "end_char": 6622, "source": "ner", "metadata": {"in_sentence": "It does appear that the four References wl]ich we have\n\nmentioned, ended in Awards made on 31-10-1960, 8 11-1960, 14-4-1961, anj 22-9-1961 respectively."}}, {"text": "14-4-1961", "label": "DATE", "start_char": 6635, "end_char": 6644, "source": "ner", "metadata": {"in_sentence": "It does appear that the four References wl]ich we have\n\nmentioned, ended in Awards made on 31-10-1960, 8 11-1960, 14-4-1961, anj 22-9-1961 respectively."}}, {"text": "29-9-1962", "label": "DATE", "start_char": 6724, "end_char": 6733, "source": "ner", "metadata": {"in_sentence": "The award on the present apo:; cation was made on 29-9-1962, and it is common grnund that at the time when the appellant urged its contention that the 2pplication made by it did not survive any longer, all the four References hal}, in fact, been disposed of."}}, {"text": "s. 33(2)(b)", "label": "PROVISION", "start_char": 7161, "end_char": 7172, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 7357, "end_char": 7362, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)", "label": "PROVISION", "start_char": 7680, "end_char": 7688, "source": "regex", "metadata": {"statute": null}}, {"text": "Watcha", "label": "OTHER_PERSON", "start_char": 8191, "end_char": 8197, "source": "ner", "metadata": {"in_sentence": "It has pointed out that the Enquiry Officer, Mr. Watcha, did not in fact record the statement of any witnesses who gave evidence before him."}}, {"text": "Paravatiyar", "label": "OTHER_PERSON", "start_char": 8626, "end_char": 8637, "source": "ner", "metadata": {"in_sentence": "It has also noticed that the enquiry in question suffered from the serious infirmity that Mr. Watcha who acted as the Enauiry Officer himself gave evidence against the respondent, and the evidence which was actually recorded in the case was taken not by Mr. Watcha, but by Paravatiyar."}}, {"text": "s. 33", "label": "PROVISION", "start_char": 9113, "end_char": 9118, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 9253, "end_char": 9258, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33", "label": "PROVISION", "start_char": 9681, "end_char": 9691, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 9810, "end_char": 9815, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 11341, "end_char": 11346, "source": "regex", "metadata": {"statute": null}}, {"text": "N. MODAK", "label": "JUDGE", "start_char": 11525, "end_char": 11533, "source": "ner", "metadata": {"in_sentence": "N. MODAK (Gajendra.qadkar, C.J.) 415."}}, {"text": "Gajendra.qadkar,", "label": "JUDGE", "start_char": 11535, "end_char": 11551, "source": "ner", "metadata": {"in_sentence": "N. MODAK (Gajendra.qadkar, C.J.) 415.", "canonical_name": "Gajendra.qadkar,"}}, {"text": "s. 10", "label": "PROVISION", "start_char": 11616, "end_char": 11621, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33(1)", "label": "PROVISION", "start_char": 11734, "end_char": 11747, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33(2)", "label": "PROVISION", "start_char": 12459, "end_char": 12472, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(1)", "label": "PROVISION", "start_char": 12596, "end_char": 12604, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)", "label": "PROVISION", "start_char": 12621, "end_char": 12629, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 14435, "end_char": 14440, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(3)", "label": "PROVISION", "start_char": 14597, "end_char": 14605, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 15344, "end_char": 15349, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 15375, "end_char": 15380, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(1)", "label": "PROVISION", "start_char": 16041, "end_char": 16049, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(1)", "label": "PROVISION", "start_char": 16340, "end_char": 16348, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)", "label": "PROVISION", "start_char": 16448, "end_char": 16456, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(1)", "label": "PROVISION", "start_char": 16708, "end_char": 16716, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(1)", "label": "PROVISION", "start_char": 16825, "end_char": 16833, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(1)", "label": "PROVISION", "start_char": 17077, "end_char": 17085, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(1)", "label": "PROVISION", "start_char": 17177, "end_char": 17185, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)", "label": "PROVISION", "start_char": 17195, "end_char": 17203, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 17755, "end_char": 17760, "source": "regex", "metadata": {"statute": null}}, {"text": "ie11dragadkar", "label": "JUDGE", "start_char": 17889, "end_char": 17902, "source": "ner", "metadata": {"in_sentence": "relit; s. He urges that it is during the pendency of\n\nmam mdustnal distmte that s. 33 apphes; that it applies in relation to workmen concerned with such main dispute; and that the\n\n'l'ATA IRON v. s. N. MO!lAK (liu:ie11dragadkar, c. J.) 417\n\np iwer conferred by it has to be exercised by the authority before \\\\ hich the main dispute is pending."}}, {"text": "s. 33", "label": "PROVISION", "start_char": 18044, "end_char": 18049, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(1)", "label": "PROVISION", "start_char": 18091, "end_char": 18099, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)", "label": "PROVISION", "start_char": 18496, "end_char": 18504, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)(b)", "label": "PROVISION", "start_char": 18769, "end_char": 18780, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)(b)", "label": "PROVISION", "start_char": 19312, "end_char": 19323, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(5)", "label": "PROVISION", "start_char": 19735, "end_char": 19743, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)", "label": "PROVISION", "start_char": 19962, "end_char": 19970, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)", "label": "PROVISION", "start_char": 20149, "end_char": 20157, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)", "label": "PROVISION", "start_char": 20488, "end_char": 20496, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33A", "label": "PROVISION", "start_char": 22634, "end_char": 22645, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 22750, "end_char": 22755, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 22955, "end_char": 22960, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33", "label": "PROVISION", "start_char": 22963, "end_char": 22973, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)", "label": "PROVISION", "start_char": 23090, "end_char": 23098, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 23256, "end_char": 23261, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)(b)", "label": "PROVISION", "start_char": 24438, "end_char": 24449, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 24519, "end_char": 24524, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)(b)", "label": "PROVISION", "start_char": 24789, "end_char": 24800, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 24963, "end_char": 24968, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(1)", "label": "PROVISION", "start_char": 25048, "end_char": 25056, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33B(2)", "label": "PROVISION", "start_char": 25226, "end_char": 25235, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)(b)", "label": "PROVISION", "start_char": 25665, "end_char": 25676, "source": "regex", "metadata": {"statute": null}}, {"text": "High Courts of Calcutta, Madras and Mysore", "label": "COURT", "start_char": 25942, "end_char": 25984, "source": "ner", "metadata": {"in_sentence": "The High Courts of Calcutta, Madras and Mysore have taken the view for which the learned Solicitor-General has contended before us, vide Alkali and Chemical Corporation of India Ltd.\n\nv. Seventh Industrial Tribunal, West Bengal and Ors.(');"}}, {"text": "State of Mysore", "label": "RESPONDENT", "start_char": 26253, "end_char": 26268, "source": "ner", "metadata": {"in_sentence": "and Shah (A.T.) v.\n\nState of Mysore and Ors.(')"}}, {"text": "Allahabad High Courts", "label": "COURT", "start_char": 26346, "end_char": 26367, "source": "ner", "metadata": {"in_sentence": "On the other hand, the Kerala, the Punjab, and the Allahabad High Courts have taken the view which we are inclined to adopt, vide Kannan Devan Hill Produce Company Ltd., Munnar v. Miss Aleyamma Varughese and\n\nAnr.;(')"}}, {"text": "s. 3J(2)(b)", "label": "PROVISION", "start_char": 26799, "end_char": 26810, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 27763, "end_char": 27771, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_421_428_EN", "year": 1965, "text": "A HEit IDGHNESS MAHARANI MANDALSA DEVI AND ORS.\n\nM. RAMNARAIN (P) LTD. AND ORS.\n\nMarch 19, 1965\n\nIK. SuBBA RAo, J.C. SHAH AND R. S. BA<CHAWAT, JJ.J\n\nCode of Civil Procedure, 1908 (Act 5 of 1908), ss. 87, 87-B Orde1 21, Rule 50(2) and Order 30-Execution against partners of a firm-Ruler of Indian State a partner-Liability of partners- Defences available-Protection to Ruler of a State--If available to rest.\n\nUnder Order 30 of the Code of Civil Procedure the respondent No. 1 a firm sued another firm of which the appellants and a Ruler of a former Indian State were partners. The consent of the Central Government to the institution of the suit under s. 87-B of the Code of Civil Procedure was not obtained. The firm admitted the liability\n\nand the Court passed a decree and di.reeled that the cjecretal .amount would be payable in certain instalments. On the firm's\n\ndefault in paying the instalments an application was filed under Order 21 Rule 50(2) of the Code of Civil Procedure for leave to execute the decree against the appellants, excepting the Ruler as partners of the firm. The Court allowed the application. The appellants' appeal was (lismissed by the High Court. On appeal by certificate;\n\nHELD: (i) The suit so far as it was one against the Ruler was incompetent and the decree against the firm so far as it was a decree against him personally was a nullity. In the absence of the\n\nrequisite consent ol the Central Goviernment a suit ag., inst the Ruler was barred by s. 87 read withs. 87-B. [425 F, G].\n\n(ii) The application of respondent No. 1 under Order +1 Rule 50(2) for leave to execute. the decree against the other partners\n\nwas maintainable. (427 G].\n\nA suit may be brought under the provisions of 0. 30 of the Code a2ainst a firm of which a partner is not capable of being sued or\n\nbeing adjudged a debtor, and in such a suit a decree enforceable against the other partner and the partnership assets may be passed.\n\n[427 B].\n\nCase law referred to.\n\n(iii) In an application under 0. 21 Rule 50(2) the judgmentde btor could q uest10n the decree on the ground of collusion, fraud or the hke but so as not to have the suit tried over again or to raise issues between himself and his other partners. ( 428 A].\n\nH The Judgment-debtor was also entitled to raise a plea of special protection under the law; and might also defend the application\n\non the. ground that the decree sought to be executed against him\n\nis a nullity. But m the instant case none of the appellants was entitled to any special protecmon; nor was it alleged that respondent\n\nNo. 1 was a party to any fraud or collusion or that it obtained the\n\ndecree by fraud or collusion. [ 428 B, CJ.\n\nGambhir Ma! Pandiya v. J. K. Jute Mi!!$ Co. Ltd., Kanpur [lg63] 3 S. C. R. 190 relied upon.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 130 of 1964.\n\nAppeal from the judgment and order dated November 21, 1958 of the Bombay High Court in Appeal No. 31 of 1958.\n\nD. N. Mukherjee; for the appellants.\n\nG. S. Pathak, S. N. Andley and Rameshwar Nath, for respondent No. l.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. Maharaja Sir Rajendra Prakash Bahadur Maharaja of Sirmur, Maharani Mandalsa Kumari Debi Rajmata of Sirmur, Maharani Premlata Debi of Chhota Udaipur, Maiyan Sahiba Sheba Kumari Debi of Jharipani, Major Rao Raja Sirendra Singh, Jagat Pershad, Shib Chander Kumar, Praduman Kumar and Dayawati Rani carried on business in co-partnership under the firm na/ne and style of Messrs. Jagatsons International Corporation (hereinafter referred to as the firm) at New Delhi. Respondent No. !, Ramnarain (Private) Ltd. instituted Summary Suit No. 162 of l 957 against Messrs. Jagatsons International Corporation on the Original Side of the Bombay High Court claiming a money decree for Rs. 1,96,831.58 N.P. The suit wasinstituted on the allegation\n\nthat respondent No. 1 and the firm had entered into an agreement in writing dated September 26, 1956, whereby respondent No. 1 agreed to provide finance to the firm, as a result of the dealings\n\nunder the agreement a sum of Rs. 1,96,831.58 N.P. was due to respondent No. 1 from the firm, and in view of the breaches of the agreement by the firm, the agreement has stood terminated. The\n\nconsent of the Central Government to the institution of the suit\n\nwas not obtained, though the Maharaja of Sirmur is a Ruler of the former Indian. State within the meaning of s. 87B of the Code of Civil Procedure. The summons of the suit was served on Shib Chander Kumar as a partner of the firm and as a person having the control or management of the partnership business. On July 15,\n\n1957, at the hearing of the summons for judgment taken out by respondent No. l, the firm admitted its liability as claimed in the plaint and applied for instalments. and the Court passed a decree for Rs. 1,89,643.98 N.P. and further interest, and directed that the decretal amount would be payable in certain instalments. The firm committed defaults in payment of the instalments payable under the decree. On December 13. 1957. respondent No. 1 filed an application under 0. 21 r. 50(2) of the Code of Civil Procedure for leave to execute the decree a2ainst (I) Maharani Mandalsa Kumari Debi, (2) Maharani Premlata Debi, (3) Maiyan Sahiba Sheba Kumari Debi, (41 Major Rao Raja Sirendra Singh, (5) Jagat Pershad. (6) Praduman Kumar and (7) Dayawati Rani claiming that respondent No. I was entitled to cause the decree to be executed against them\n\n.MLNDALSA DEV1 V. RAMNARAIN (P) L1'D. j,) 423\n\nas being partners in the firm. The opposite parties to the application filed an affidavit alleging (!) that the suit and all proceedings therein were incompetent in the absence of the requisite consent of the Central Government under s. 86 of the Code of Civil Procedure; (2) Jagat Pershad and Shib Chander Kumar entered into the agreement dated September 26, 1956 and utilised the moneys rl'- ceived under it in fraud of the other partners and without their authority, Shib Chander Kumar dishonestly and fraudulently concealed from the other partners the fact of the institution of the suit and without the authority and knowledge of the other partners submitted to a consent decree in the suit.\n\nBy an order dated March 18, 1958, a learned single Judge of the High Court rejected all the contentions in the affidavit, and\n\nallowed the application under 0. 21, r. 50(2) of the Code of Civil Procedure. The learned single Judge held that (!) the defect of the absence of the requisite consent under s. 86 read with s. 87-B did\n\nnot render the decree a nullity, and the objection could not be taken in execution proceedings; (2) the other defences to the merits\n\nof the claim in the suit could not be agitated in a proceeding under\n\n0. 21. r. 50(2) of the Code of Civil Procedure. An appeatpreferred by appellants, Maharani Mandalsa Kumar_i Debi, Maharani Premlata Debi, Major Rao Raja Sirendra Singh and Maiyan Sahiba Sheba Kumari Debi was dismissed by a Bench of the High Court on November 21, 1958. The appellate Court held thai (I) though the decree against the firm was a decree against all its partners\n\nincluding the Maharaja of Sirmur, and though the decree against the Maharaja of Sirmur might be a nullity, the decree against the other partners of the firm was valid, and (2) the appellants were not entitled to raise other defences to the merits of rhc claim on an application under 0. 21, r. 50(2) of the Code of Civil Procedure. The appellants now appeal to this Court under a certificate granted by the High Court.\n\nOn behalf of the appellants Mr. D. N. Muli:herjee contended that (11 the suit against the firm of Jagatsons International Corpora tion was a suit agaihst all its partners and in the absence of the\n\nrequisite consent under s. 86 read with s. 87-B of the Code of Civil Procedure. the suit was not competent against the Maharaja of Sirmur, and the decree against him was null and void: (2) consequently, the suit against the firm under the provisions of 0. 30 of the Code of Civil Procedure was not competent and the decree passed in the suit was wholly void, the decree not being a decree against the firm could not be executed by recourse to the machinery of O. 21, r. 50, Code of Civil Procedure, and the application against the appellants under 0. 21, r. 50(2), Code of Civil Procedure was not maintainable; and (3) the appellants were entitled to dispute their liability in an application under 0. 21. r. 50(2) of the Code\n\nof Civil Procedure on all the grounds raised in the affidavit field\n\non their behalf and the court ought to have tried and decided all\n\nthose questions.\n\nIn answer to the first contention of Mr. D. N. Mukherjee, Mr.\n\nAndley argued that for the purposes of a suit under 0. 30, Code of Civil Procedure, the firm of Jagatsons International Corporation is a legal entity separate and distinct from its partners, and no question of obtaining the consent of the Central Government to sue one of its partners under s. 86 read with s. 87-B of the Code of Civil Procedure to the institution of such a suit arises. Mr.\n\nAndley relied upon the observations of Das, J. in Dulichand Lakshminarayan v. The Commissioner of Income-tax, Nagpur(') that for the sake of convenience, 0. 30 of the Code of Civil Procedure permits a firm. to sue or be sued in the firm name \"as if it, were a corporate body\". Consistently with this legal fiction, R. 3 permits service of the summons on a partner or a person havini: control .or management of the partnership business, R. 4 permits the institution and continuance cif the suit in the firm name in spite of death of a partner before the institution. or during the pendency of the suit without jcining the legal representatives of the deceased partner as a party to the suit, and R. 9 permits a suit between a firm and one or more of its partners and between firl)ls having one or more common partners. But the legal fiction must not be carried too far. For some purposes the law has extended a limited personality to a firm, see Bhagangi Morarji Goculda.1 v.\n\nAlembic Chemicals Works Co.('), but the firm is not a legal entitv, see Purushottam Umedbhai & Co. v. M / s. Mani/al & Sons('), Lindley on Partnership, 12th Edn., pp. 27-28. The persons\n\nwho are individually called partners are collectively called a firm, and the name under which their business is carried on is called\n\nthe firm name: see s. 4 of the lnJian PHtncrohip Act, 1932. Order 30, R. l of the Code of Civil Procedure enables two or more perscns claiming or being liable as partners and carrying on business in India to sue or be sued in the name of the firm of which they were partners at the time of the accrual of the cause of action.\n\nRule I shows that the individual partners sue or are sued in their collective firm name. Rule 2 provides that on disclosure of the names of the partners of the plaintiff firm, the suit proceeds as if they are named as plaintiffs in the plaint. Rule 6 provides that the persons sued in the firm name must appear individually in their own names. A suit by or in the. name of a firm is thus really a suit\n\nby or in the name of all its partners, see Rodriguez v. Speyer B1r'/:ers ('), Purushottam Umedbhai & Co. v. M /s. Manila/ & Sons(') at pp. 991, 993, 995. So also a suit against the firm is really\n\n(') [1956J s.r.R. 156, 162.\n\n(') [1948] L.R. 75 I.A. 147.\n\n(') [1961] I S.C.R. 982, 994.\n\n(') [1919) A.C. 59.\n\nMANDALSA DEVI v. RAMNARAI!< (P) LTD. (Bachawat, J.) i25\n\na suit against all the partners of the firm. In Western National Bank\n\nof City of New York v. Pere;, Triana & Co.('), Lindley, LJ. said:\n\n\"When a firm's name is used, it is only a convenient method of denoting those persons who compose the\n\nfirm at the time when that name is used, and a plaintiff who sues partners in the name of their firm in truth sues them individually, just as much as if he had set out all their names\".\n\nThe decree passed in the suit, though in form against the firm, is in effect a decree against all the partners. In Lovell & Christmas v. Beauchamp(') Lord Herschell. L. C. said:\n\n\"Although the judgment Jllay be pronounced against the firm in the firm's name, it is in reality a judgment against all the persons who are in fact members of the firm; and it is because such a judgment exists that the right of execution follows\".\n\nThe firm name of Jagatsons International Corporation applies as much to the Maharaja of Sirmur as to the other\n\npartners. When respondent No. 1 sued the firm of Jagatsons International Corporation, it sued the Maharaja of Sirmur and all the other partners as if the plaint had set out their namos, and the decree passed in the suit is in reality a decree against all the partners of the firm including the Maharaja of Sirmur.\n\nNow, the Maharaja of Sirmur is the Ruler of a former Indian State, and s. 86 read with s. 87-B of the Code of Civil Procedure barred the institution of a suit against him except with the consent of the Central Government. No such consent was given for the institution of the suit against the Maharaja of Sirmur. In the absence of the requisite consent of the Central Government, a suit, which is in reality, though not in form, a suit against the Maharaja of Sirmur, is barred by s. 86 read with s. 87-B. See\n\nGaekwar Baroda State Railway v. Hafiz Habib-VI-Haq(').\n\nConsequently, the suit so far as it was one against the Maharaja of Sirmur was incompetent and the decree against the firm so far as it is a decree against him µersonally was a nullity. The first contention of Mr. Mukherjee is. therefore, sound and should be accepted.\n\nBut we think that the second contention of Mr. Mukherjoe should be rejected. Beyond doubt, in a normal case where all\n\nthe partners of a firm are capable of being sued and of being adjudged judgment-debtors. a suit may be filed and a decree may be obtained against a firm under 0. 30 of the Code of Civil Procedure, and such a decree may be executed against the orooerty of the partnership and against all the partners by following the procedure of 0. 21, r. 50 of the Code of Civil Procedure.\n\n(') [l8Dl] l Q.B. 304.\n\n('; \"18D4] A.O. 607.\n\n1 1U38] T,, R. 65 J.A. 182, ms.\n\nSUPREME COURT (1965] 3 s.c.R.\n\nBut there may be abnormal cases where a suit is filed against a\n\nA . firm under the provisions of 0. 30, of the Code of Civil Procedure, and it is found that one of its partners cannot be sued or cannot be adjudged a judgment-debtor. Thus, take the case of an infant who under the English law, can be a partner in a firm, but, though a partner, cannot contract debts by trading and cannot be adjudged to be a debtor in respect of such debts. In Lovell &\n\nChristmas v. Beauchamp('), the House of Lords held that a B creditor of a firm of which an infant was a partner could issue a writ the firm in the firm's name, and in such a suit judgment could be recovered against the defendant firm other than the infant partner, and if a judgment had been improperly signed against the firm simply, such a judgment could C be suitably amended so as to make it a judgment against the firm other than the infant partner. The precise point decided in\n\nthis case cannot arise in this country, because under our law, a minor may not be a' partner in a firm, though he may be admitted to the benefits of the partnership. But the case shows that a creditor of a firm of which or>e of the partners cannot be D adjudged to be a debtor, may institute a suit against a firm in the firm name under 0. 30 o{ the Code of Civil Procedure, and may in such a suit obtain a decree against the firm other than the partner who cannot be adjudged a debtor. Again, take a case where the creditor of a firm institutes a suit against a firm and one of its partners at the time of the accrual of the cause of E action is dead at the time of the institution of the suit. The suit against the firm is really a suit against ail the partners who were its partners at the time of the accrual of the cause of action. including the dead partner. Order 30, R. 4 of a Code of Civil Prociedure enables the creditor to institute the suit against the firm in the firm name without joining the legal representative F of the deceased partner. The suit is, therefore, competent, but no suit can be instituted nor can a decree be obtained against a dead person. The decree passed in such a suit will, therefore,\n\nbind the partnership and all the surviving partners. but will not affect the separate property of the deceased partner. In Ellis v.\n\nWadeson('), Romer, L J. observed: G .\"Now consider the question of death. Suppose a partner dies before action brought. and an acltion is brought against the firm in the firm's name. The dead man is not a party to the action, so far as his private\n\nestate is concerned. for a dead man cannot be sued, though the legal personal representative of a dead man 'H can be sued in n proper case. Tn that case the action would be an action solely against the surviving partners....\n\nTf the legal personal representatives of a deceased partner are not added expressly as defendants.\n\n(') [IR941 A.O. 607. (') [lR991 l Q.R. 714 at 718.\n\nH.!.llDALSA. DEVI V. IW!NA.lWN (P} LTJ;>. (Badiawat, J.) i27\n\nand the action is broui; ht against the firm in the firm's name, then judgment oan only be obtained as against the surviving partners and be enforced <igainst them and against the partnership assets\".\n\nThe above illustrations show that a suit may be brought under the provisions of 0. 30 of the Code of Civil Procedure against a furn of which a partner is not capable of bemg sued or being adjudged a debtor, and in such a suit a decree entorceable against the other partners and the partnership assets may be passed. Now, in the instant case, respondent No. I sued the firm of Jagatsons International Corporation under the provisions of 0. 30 of the Code of Civil Procedure. The assets of the firm as also all its partners jointly and severally are liable to satisfy the debts of the firm. Even the Maharaja of Sirmur is jointly and severally liable for the debts of the firm; only the institution of a suit against him without the consent of the Central Government is barred by s. 86 read with s. 87-B of the Code of Civil Procedure. As the suit. was instituted without the requisite consent of the Central Government, no decree could be passed in the suit against the Maharaja of Sirmur. But the suit against the firm other than the Maharaja of Sirmur was competent, and a decree could be passed against the firm other than the Maharaja of Sirmur, and such a decree could be executed against the partnership property and against the other partners by following the procedure of 0. 21, r. 50 of the Code of Civil\n\nProcedure. It is true that respondent No. I obtained a decree against the _firm of Jagatsons International Corporation simply, but the decree should be suitabli)' amended so as to make it a\n\ndecree against the firm of Jagatsons International Corporation other than the Maharaja of Sirmur, and the decree so read is a valid decree which may be executed against the partnership property and the other partners of the firm by recourse to the machinery of 0. 21, r. 50 of the Code of Civil Procedure. The application of respondent No. 1 under 0. 21, r. 50(2) for leave to execute the decree against the other partners is, therefore\n\nmaintainable. The second of M'r. Mukherjee must, therefore, be rejected.\n\nThe third contention of Mr. Mukherjee raises the question as to what defences may be raised by a respondent to an application under 0. 21, r. 50(2) of the Code of Civil Procedure. The law on this point is now well-settled. In Gambhir Mal Pandiya\n\nv. J. K. Jute Mills Co. Ltd., Kanpur('), Hidayatullah, J. speaking on behalf of the Court observed:\n\n\"... primarily the question to try would be whether the person against whom the decree is sought to be executed was a partner of the firm, when the cause of action accrued, but he may question the decree on the\n\n('l [I963J 2 s.c.n. mo.\n\nSUPREME\n\nOOURT\n\nBEFOBT8 (1965] 3\n\nground of collusion, fraud or the like but so as not to have the suit tried over again or to raise issues between himself and his other partners''.\n\nThe respondent to an applioation under 0. 21, r. 50(2) of the Code. of Civil Procedure is also entitled to raise a plea of special protection under the law, and on this ground, the learned judge at pp. 205-206 of the Report distinguished the case of Chhattoo\n\nLal Misser & Co. v. Naraindas JJaijnath Prasad('). We may add that the respondent may also defend the application on the ground that the decree sought to be executed against him is a nullity.\n\nNow, in the instant case, none of the appellant is entitled to any special protection from the institution of the suit under s. 86 read with s. 87-B, Code of Civil Procedure. The Maharaja of Sirmur was entitled to this special protection, but he was not a party to the application unden 0. 21, r. 50(2) of the Code of Civil Procedure: Nor is the decree against the firm other than\n\nthe Maharaja of Sirmur a nullity. The affidavit filed on behalf of the appellants does not sufficiently raise a plea that the decree was the result of any collusion, fraud or the like. The affidavit incorrectly assumes that the decree passed on admission of the\n\nappearing partner, was a consent dec\\ree. Allegations of dishonesty and fraudulent concealment of the fact of the institution of the suit are made against Shib Chander Kumar, one of th partners of the firm, but no allegation of fraud or collusion is made against respondent No. I. It was not alleged that respondent No. 1 was a party to any fraud or collusion or that it obtained the decree by fraud or collusion. The alleged that their partners, Jagat Pershad and Shib Chander Kumar, had entered into the agreement dated September 26, 1956, and had utilised the moneys received under it in fraud of the appellants and without their authority, but the appellants are not entitled to raise these pleas in the application under 0. 21 r. 50(2) of the Code of Civil Procedure. The appellants were admittedly partners of the firm of Jagatsons International Corporation at the time when the cause of action accrued. In the absence of any plea questioning the decree on the ground of collusion, fraud or the like, respondent No. 1 is entitled to an order under O. 21, r. 50(2) of the Code of Civil Procedure giving it leave to execute the decree against the appellants as partners in the firm. The third contention of Mr. Mukherjee must, therefore, be rejected.\n\nIn the result, the appeal is dismisse, d with costs.\n\n(') [1928] I.L.R. 56 ral. 704.\n\nl; fB(N)1SCl--2,500-22·3 66-GIPS\n\nAppeal dismissed.", "total_entities": 104, "entities": [{"text": "A HEit IDGHNESS MAHARANI MANDALSA DEVI AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "HER HIGHNESS MAHARANI MANDALSA DEVI AND ORS", "offset_not_found": false}}, {"text": "M. RAMNARAIN (P) LTD. AND ORS", "label": "RESPONDENT", "start_char": 49, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "M. RAMNARAIN (P) LTD. AND ORS", "offset_not_found": false}}, {"text": "March 19, 1965", "label": "DATE", "start_char": 81, "end_char": 95, "source": "ner", "metadata": {"in_sentence": "March 19, 1965\n\nIK."}}, {"text": "IK. SuBBA RAo, J", "label": "JUDGE", "start_char": 97, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 114, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Code of Civil Procedure, 1908", "label": "STATUTE", "start_char": 149, "end_char": 178, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 87, 87", "label": "PROVISION", "start_char": 196, "end_char": 206, "source": "regex", "metadata": {"linked_statute_text": "Code of Civil Procedure, 1908", "statute": "Code of Civil Procedure, 1908"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 427, "end_char": 454, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Central Government", "label": "ORG", "start_char": 596, "end_char": 614, "source": "ner", "metadata": {"in_sentence": "The consent of the Central Government to the institution of the suit under s. 87-B of the Code of Civil Procedure was not obtained."}}, {"text": "s. 87", "label": "PROVISION", "start_char": 652, "end_char": 657, "source": "regex", "metadata": {"linked_statute_text": "Execution against partners of a firm-Ruler of Indian State a partner-Liability of partners- Defences available-Protection to Rule", "statute": "Execution against partners of a firm-Ruler of Indian State a partner-Liability of partners- Defences available-Protection to Rule"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 663, "end_char": 690, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Order 21 Rule 50(2)", "label": "PROVISION", "start_char": 934, "end_char": 953, "source": "regex", "metadata": {"linked_statute_text": "Execution against partners of a firm-Ruler of Indian State a partner-Liability of partners- Defences available-Protection to Rule", "statute": "Execution against partners of a firm-Ruler of Indian State a partner-Liability of partners- Defences available-Protection to Rule"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 957, "end_char": 984, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 87", "label": "PROVISION", "start_char": 1484, "end_char": 1489, "source": "regex", "metadata": {"statute": null}}, {"text": "D. N. Mukherjee", "label": "PETITIONER", "start_char": 2943, "end_char": 2958, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee; for the appellants.", "canonical_name": "D. N. Mukherjee"}}, {"text": "G. S. Pathak", "label": "LAWYER", "start_char": 2981, "end_char": 2993, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak, S. N. Andley and Rameshwar Nath, for respondent No."}}, {"text": "S. N. Andley", "label": "LAWYER", "start_char": 2995, "end_char": 3007, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak, S. N. Andley and Rameshwar Nath, for respondent No."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 3012, "end_char": 3026, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak, S. N. Andley and Rameshwar Nath, for respondent No."}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 3095, "end_char": 3103, "source": "ner", "metadata": {"in_sentence": "l.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. Maharaja Sir Rajendra Prakash Bahadur Maharaja of Sirmur, Maharani Mandalsa Kumari Debi Rajmata of Sirmur, Maharani Premlata Debi of Chhota Udaipur, Maiyan Sahiba Sheba Kumari Debi of Jharipani, Major Rao Raja Sirendra Singh, Jagat Pershad, Shib Chander Kumar, Praduman Kumar and Dayawati Rani carried on business in co-partnership under the firm na/ne and style of Messrs. Jagatsons International Corporation (hereinafter referred to as the firm) at New Delhi."}}, {"text": "Sirmur", "label": "GPE", "start_char": 3158, "end_char": 3164, "source": "ner", "metadata": {"in_sentence": "l.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. Maharaja Sir Rajendra Prakash Bahadur Maharaja of Sirmur, Maharani Mandalsa Kumari Debi Rajmata of Sirmur, Maharani Premlata Debi of Chhota Udaipur, Maiyan Sahiba Sheba Kumari Debi of Jharipani, Major Rao Raja Sirendra Singh, Jagat Pershad, Shib Chander Kumar, Praduman Kumar and Dayawati Rani carried on business in co-partnership under the firm na/ne and style of Messrs. Jagatsons International Corporation (hereinafter referred to as the firm) at New Delhi."}}, {"text": "Maharani Mandalsa Kumari Debi Rajmata", "label": "PETITIONER", "start_char": 3166, "end_char": 3203, "source": "ner", "metadata": {"in_sentence": "l.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. Maharaja Sir Rajendra Prakash Bahadur Maharaja of Sirmur, Maharani Mandalsa Kumari Debi Rajmata of Sirmur, Maharani Premlata Debi of Chhota Udaipur, Maiyan Sahiba Sheba Kumari Debi of Jharipani, Major Rao Raja Sirendra Singh, Jagat Pershad, Shib Chander Kumar, Praduman Kumar and Dayawati Rani carried on business in co-partnership under the firm na/ne and style of Messrs. Jagatsons International Corporation (hereinafter referred to as the firm) at New Delhi.", "canonical_name": "Maharani Mandalsa Kumari Debi Rajmata"}}, {"text": "Maharani Premlata Debi", "label": "PETITIONER", "start_char": 3215, "end_char": 3237, "source": "ner", "metadata": {"in_sentence": "l.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. Maharaja Sir Rajendra Prakash Bahadur Maharaja of Sirmur, Maharani Mandalsa Kumari Debi Rajmata of Sirmur, Maharani Premlata Debi of Chhota Udaipur, Maiyan Sahiba Sheba Kumari Debi of Jharipani, Major Rao Raja Sirendra Singh, Jagat Pershad, Shib Chander Kumar, Praduman Kumar and Dayawati Rani carried on business in co-partnership under the firm na/ne and style of Messrs. Jagatsons International Corporation (hereinafter referred to as the firm) at New Delhi.", "canonical_name": "Maharani Premlata Debi"}}, {"text": "Chhota Udaipur", "label": "GPE", "start_char": 3241, "end_char": 3255, "source": "ner", "metadata": {"in_sentence": "l.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. Maharaja Sir Rajendra Prakash Bahadur Maharaja of Sirmur, Maharani Mandalsa Kumari Debi Rajmata of Sirmur, Maharani Premlata Debi of Chhota Udaipur, Maiyan Sahiba Sheba Kumari Debi of Jharipani, Major Rao Raja Sirendra Singh, Jagat Pershad, Shib Chander Kumar, Praduman Kumar and Dayawati Rani carried on business in co-partnership under the firm na/ne and style of Messrs. Jagatsons International Corporation (hereinafter referred to as the firm) at New Delhi."}}, {"text": "Maiyan Sahiba Sheba Kumari Debi", "label": "PETITIONER", "start_char": 3257, "end_char": 3288, "source": "ner", "metadata": {"in_sentence": "l.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. Maharaja Sir Rajendra Prakash Bahadur Maharaja of Sirmur, Maharani Mandalsa Kumari Debi Rajmata of Sirmur, Maharani Premlata Debi of Chhota Udaipur, Maiyan Sahiba Sheba Kumari Debi of Jharipani, Major Rao Raja Sirendra Singh, Jagat Pershad, Shib Chander Kumar, Praduman Kumar and Dayawati Rani carried on business in co-partnership under the firm na/ne and style of Messrs. Jagatsons International Corporation (hereinafter referred to as the firm) at New Delhi.", "canonical_name": "Maiyan Sahiba Sheba Kumari Debi"}}, {"text": "Jharipani", "label": "GPE", "start_char": 3292, "end_char": 3301, "source": "ner", "metadata": {"in_sentence": "l.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. Maharaja Sir Rajendra Prakash Bahadur Maharaja of Sirmur, Maharani Mandalsa Kumari Debi Rajmata of Sirmur, Maharani Premlata Debi of Chhota Udaipur, Maiyan Sahiba Sheba Kumari Debi of Jharipani, Major Rao Raja Sirendra Singh, Jagat Pershad, Shib Chander Kumar, Praduman Kumar and Dayawati Rani carried on business in co-partnership under the firm na/ne and style of Messrs. Jagatsons International Corporation (hereinafter referred to as the firm) at New Delhi."}}, {"text": "Rao Raja Sirendra Singh", "label": "PETITIONER", "start_char": 3309, "end_char": 3332, "source": "ner", "metadata": {"in_sentence": "l.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. Maharaja Sir Rajendra Prakash Bahadur Maharaja of Sirmur, Maharani Mandalsa Kumari Debi Rajmata of Sirmur, Maharani Premlata Debi of Chhota Udaipur, Maiyan Sahiba Sheba Kumari Debi of Jharipani, Major Rao Raja Sirendra Singh, Jagat Pershad, Shib Chander Kumar, Praduman Kumar and Dayawati Rani carried on business in co-partnership under the firm na/ne and style of Messrs. Jagatsons International Corporation (hereinafter referred to as the firm) at New Delhi.", "canonical_name": "Rao Raja Sirendra Singh"}}, {"text": "Jagat Pershad", "label": "OTHER_PERSON", "start_char": 3334, "end_char": 3347, "source": "ner", "metadata": {"in_sentence": "l.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. Maharaja Sir Rajendra Prakash Bahadur Maharaja of Sirmur, Maharani Mandalsa Kumari Debi Rajmata of Sirmur, Maharani Premlata Debi of Chhota Udaipur, Maiyan Sahiba Sheba Kumari Debi of Jharipani, Major Rao Raja Sirendra Singh, Jagat Pershad, Shib Chander Kumar, Praduman Kumar and Dayawati Rani carried on business in co-partnership under the firm na/ne and style of Messrs. Jagatsons International Corporation (hereinafter referred to as the firm) at New Delhi."}}, {"text": "Shib Chander Kumar", "label": "OTHER_PERSON", "start_char": 3349, "end_char": 3367, "source": "ner", "metadata": {"in_sentence": "l.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. Maharaja Sir Rajendra Prakash Bahadur Maharaja of Sirmur, Maharani Mandalsa Kumari Debi Rajmata of Sirmur, Maharani Premlata Debi of Chhota Udaipur, Maiyan Sahiba Sheba Kumari Debi of Jharipani, Major Rao Raja Sirendra Singh, Jagat Pershad, Shib Chander Kumar, Praduman Kumar and Dayawati Rani carried on business in co-partnership under the firm na/ne and style of Messrs. Jagatsons International Corporation (hereinafter referred to as the firm) at New Delhi."}}, {"text": "Praduman Kumar", "label": "OTHER_PERSON", "start_char": 3369, "end_char": 3383, "source": "ner", "metadata": {"in_sentence": "l.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. Maharaja Sir Rajendra Prakash Bahadur Maharaja of Sirmur, Maharani Mandalsa Kumari Debi Rajmata of Sirmur, Maharani Premlata Debi of Chhota Udaipur, Maiyan Sahiba Sheba Kumari Debi of Jharipani, Major Rao Raja Sirendra Singh, Jagat Pershad, Shib Chander Kumar, Praduman Kumar and Dayawati Rani carried on business in co-partnership under the firm na/ne and style of Messrs. Jagatsons International Corporation (hereinafter referred to as the firm) at New Delhi."}}, {"text": "Dayawati Rani", "label": "RESPONDENT", "start_char": 3388, "end_char": 3401, "source": "ner", "metadata": {"in_sentence": "l.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. Maharaja Sir Rajendra Prakash Bahadur Maharaja of Sirmur, Maharani Mandalsa Kumari Debi Rajmata of Sirmur, Maharani Premlata Debi of Chhota Udaipur, Maiyan Sahiba Sheba Kumari Debi of Jharipani, Major Rao Raja Sirendra Singh, Jagat Pershad, Shib Chander Kumar, Praduman Kumar and Dayawati Rani carried on business in co-partnership under the firm na/ne and style of Messrs. Jagatsons International Corporation (hereinafter referred to as the firm) at New Delhi.", "canonical_name": "Dayawati Rani"}}, {"text": "Jagatsons International Corporation", "label": "ORG", "start_char": 3670, "end_char": 3705, "source": "ner", "metadata": {"in_sentence": "162 of l 957 against Messrs. Jagatsons International Corporation on the Original Side of the Bombay High Court claiming a money decree for Rs."}}, {"text": "s. 87B", "label": "PROVISION", "start_char": 4405, "end_char": 4411, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 4415, "end_char": 4442, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "July 15,\n\n1957", "label": "DATE", "start_char": 4607, "end_char": 4621, "source": "ner", "metadata": {"in_sentence": "On July 15,\n\n1957, at the hearing of the summons for judgment taken out by respondent No."}}, {"text": "December 13. 1957", "label": "DATE", "start_char": 5026, "end_char": 5043, "source": "ner", "metadata": {"in_sentence": "On December 13."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 5107, "end_char": 5134, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Maharani Mandalsa Kumari Debi", "label": "PETITIONER", "start_char": 5179, "end_char": 5208, "source": "ner", "metadata": {"in_sentence": "21 r. 50(2) of the Code of Civil Procedure for leave to execute the decree a2ainst (I) Maharani Mandalsa Kumari Debi, (2) Maharani Premlata Debi, (3) Maiyan Sahiba Sheba Kumari Debi, (41 Major Rao Raja Sirendra Singh, (5) Jagat Pershad. (", "canonical_name": "Maharani Mandalsa Kumari Debi Rajmata"}}, {"text": "Dayawati Rani", "label": "RESPONDENT", "start_char": 5356, "end_char": 5369, "source": "ner", "metadata": {"in_sentence": "6) Praduman Kumar and (7) Dayawati Rani claiming that respondent No.", "canonical_name": "Dayawati Rani"}}, {"text": "s. 86", "label": "PROVISION", "start_char": 5744, "end_char": 5749, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 5753, "end_char": 5780, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "September 26, 1956", "label": "DATE", "start_char": 5856, "end_char": 5874, "source": "ner", "metadata": {"in_sentence": "that the suit and all proceedings therein were incompetent in the absence of the requisite consent of the Central Government under s. 86 of the Code of Civil Procedure; (2) Jagat Pershad and Shib Chander Kumar entered into the agreement dated September 26, 1956 and utilised the moneys rl'- ceived under it in fraud of the other partners and without their authority, Shib Chander Kumar dishonestly and fraudulently concealed from the other partners the fact of the institution of the suit and without the authority and knowledge of the other partners submitted to a consent decree in the suit."}}, {"text": "March 18, 1958", "label": "DATE", "start_char": 6226, "end_char": 6240, "source": "ner", "metadata": {"in_sentence": "By an order dated March 18, 1958, a learned single Judge of the High Court rejected all the contentions in the affidavit, and\n\nallowed the application under 0."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 6384, "end_char": 6411, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 86", "label": "PROVISION", "start_char": 6509, "end_char": 6514, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 87", "label": "PROVISION", "start_char": 6525, "end_char": 6530, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 6761, "end_char": 6788, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Maharani Mandalsa Kumar_i Debi", "label": "PETITIONER", "start_char": 6824, "end_char": 6854, "source": "ner", "metadata": {"in_sentence": "An appeatpreferred by appellants, Maharani Mandalsa Kumar_i Debi, Maharani Premlata Debi, Major Rao Raja Sirendra Singh and Maiyan Sahiba Sheba Kumari Debi was dismissed by a Bench of the High Court on November 21, 1958.", "canonical_name": "Maharani Mandalsa Kumari Debi Rajmata"}}, {"text": "Maharani Premlata Debi", "label": "PETITIONER", "start_char": 6856, "end_char": 6878, "source": "ner", "metadata": {"in_sentence": "An appeatpreferred by appellants, Maharani Mandalsa Kumar_i Debi, Maharani Premlata Debi, Major Rao Raja Sirendra Singh and Maiyan Sahiba Sheba Kumari Debi was dismissed by a Bench of the High Court on November 21, 1958.", "canonical_name": "Maharani Premlata Debi"}}, {"text": "Rao Raja Sirendra Singh", "label": "PETITIONER", "start_char": 6886, "end_char": 6909, "source": "ner", "metadata": {"in_sentence": "An appeatpreferred by appellants, Maharani Mandalsa Kumar_i Debi, Maharani Premlata Debi, Major Rao Raja Sirendra Singh and Maiyan Sahiba Sheba Kumari Debi was dismissed by a Bench of the High Court on November 21, 1958.", "canonical_name": "Rao Raja Sirendra Singh"}}, {"text": "Maiyan Sahiba Sheba Kumari Debi", "label": "PETITIONER", "start_char": 6914, "end_char": 6945, "source": "ner", "metadata": {"in_sentence": "An appeatpreferred by appellants, Maharani Mandalsa Kumar_i Debi, Maharani Premlata Debi, Major Rao Raja Sirendra Singh and Maiyan Sahiba Sheba Kumari Debi was dismissed by a Bench of the High Court on November 21, 1958.", "canonical_name": "Maiyan Sahiba Sheba Kumari Debi"}}, {"text": "November 21, 1958", "label": "DATE", "start_char": 6992, "end_char": 7009, "source": "ner", "metadata": {"in_sentence": "An appeatpreferred by appellants, Maharani Mandalsa Kumar_i Debi, Maharani Premlata Debi, Major Rao Raja Sirendra Singh and Maiyan Sahiba Sheba Kumari Debi was dismissed by a Bench of the High Court on November 21, 1958."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 7422, "end_char": 7449, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "D. N. Muli", "label": "OTHER_PERSON", "start_char": 7571, "end_char": 7581, "source": "ner", "metadata": {"in_sentence": "On behalf of the appellants Mr. D. N. Muli:herjee contended that (11 the suit against the firm of Jagatsons International Corpora tion was a suit agaihst all its partners and in the absence of the\n\nrequisite consent under s. 86 read with s. 87-B of the Code of Civil Procedure."}}, {"text": "Jagatsons International Corpora tion", "label": "ORG", "start_char": 7637, "end_char": 7673, "source": "ner", "metadata": {"in_sentence": "On behalf of the appellants Mr. D. N. Muli:herjee contended that (11 the suit against the firm of Jagatsons International Corpora tion was a suit agaihst all its partners and in the absence of the\n\nrequisite consent under s. 86 read with s. 87-B of the Code of Civil Procedure."}}, {"text": "s. 86", "label": "PROVISION", "start_char": 7761, "end_char": 7766, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 87", "label": "PROVISION", "start_char": 7777, "end_char": 7782, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 7788, "end_char": 7815, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 7999, "end_char": 8026, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 8211, "end_char": 8234, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 8302, "end_char": 8325, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 8660, "end_char": 8675, "source": "ner", "metadata": {"in_sentence": "In answer to the first contention of Mr. D. N. Mukherjee, Mr.\n\nAndley argued that for the purposes of a suit under 0.", "canonical_name": "D. N. Mukherjee"}}, {"text": "Andley", "label": "OTHER_PERSON", "start_char": 8682, "end_char": 8688, "source": "ner", "metadata": {"in_sentence": "In answer to the first contention of Mr. D. N. 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The Commissioner of Income-tax, Nagpur(') that for the sake of convenience, 0."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 9238, "end_char": 9265, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 4", "label": "PROVISION", "start_char": 10391, "end_char": 10395, "source": "regex", "metadata": {"statute": null}}, {"text": "Jian PHtncrohip Act, 1932", "label": "STATUTE", "start_char": 10405, "end_char": 10430, "source": "regex", "metadata": {}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 10450, "end_char": 10477, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "India", "label": "GPE", "start_char": 10571, "end_char": 10576, "source": "ner", "metadata": {"in_sentence": "Order 30, R. l of the Code of Civil Procedure enables two or more perscns claiming or being liable as partners and carrying on business in India to sue or be sued in the name of the firm of which they were partners at the time of the accrual of the cause of action."}}, {"text": "L.R. 75 I.A. 147", "label": "CASE_CITATION", "start_char": 11339, "end_char": 11355, "source": "regex", "metadata": {}}, {"text": "Lindley", "label": "JUDGE", "start_char": 11585, "end_char": 11592, "source": "ner", "metadata": {"in_sentence": "In Western National Bank\n\nof City of New York v. Pere;, Triana & Co.('), Lindley, LJ."}}, {"text": "Maharaja of Sirmur", "label": "RESPONDENT", "start_char": 12399, "end_char": 12417, "source": "ner", "metadata": {"in_sentence": "The firm name of Jagatsons International Corporation applies as much to the Maharaja of Sirmur as to the other\n\npartners."}}, {"text": "s. 86", "label": "PROVISION", "start_char": 12821, "end_char": 12826, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 87", "label": "PROVISION", "start_char": 12837, "end_char": 12842, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 12848, "end_char": 12875, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 86", "label": "PROVISION", "start_char": 13230, "end_char": 13235, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 87", "label": "PROVISION", "start_char": 13246, "end_char": 13251, "source": "regex", "metadata": {"statute": null}}, {"text": "Mukherjee", "label": "OTHER_PERSON", "start_char": 13530, "end_char": 13539, "source": "ner", "metadata": {"in_sentence": "The first contention of Mr. Mukherjee is.", "canonical_name": "Mukherjee"}}, {"text": "Mukherjoe", "label": "OTHER_PERSON", "start_char": 13633, "end_char": 13642, "source": "ner", "metadata": {"in_sentence": "But we think that the second contention of Mr. Mukherjoe should be rejected.", "canonical_name": "Mukherjee"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 13873, "end_char": 13900, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 14051, "end_char": 14078, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "SUPREME COURT (1965] 3 s.c.", "label": "COURT", "start_char": 14160, "end_char": 14187, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT (1965] 3 s.c."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 14299, "end_char": 14326, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 15477, "end_char": 15504, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Romer", "label": "JUDGE", "start_char": 16499, "end_char": 16504, "source": "ner", "metadata": {"in_sentence": "In Ellis v.\n\nWadeson('), Romer, L J. observed: G .\"Now consider the question of death."}}, {"text": "H.!.llDALSA. DEVI", "label": "JUDGE", "start_char": 17114, "end_char": 17131, "source": "ner", "metadata": {"in_sentence": "H.!.llDALSA."}}, {"text": "Badiawat", "label": "JUDGE", "start_char": 17157, "end_char": 17165, "source": "ner", "metadata": {"in_sentence": "Badiawat, J.) i27\n\nand the action is broui; ht against the firm in the firm's name, then judgment oan only be obtained as against the surviving partners and be enforced <igainst them and against the partnership assets\"."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 17467, "end_char": 17494, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 17823, "end_char": 17850, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 86", "label": "PROVISION", "start_char": 18156, "end_char": 18161, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 87", "label": "PROVISION", "start_char": 18172, "end_char": 18177, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 18183, "end_char": 18210, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 19160, "end_char": 19187, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 19546, "end_char": 19573, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 19683, "end_char": 19695, "source": "ner", "metadata": {"in_sentence": "In Gambhir Mal Pandiya\n\nv. J. K. Jute Mills Co. Ltd., Kanpur('), Hidayatullah, J. speaking on behalf of the Court observed:\n\n\"... primarily the question to try would be whether the person against whom the decree is sought to be executed was a partner of the firm, when the cause of action accrued, but he may question the decree on the\n\n('l [I963J 2 s.c.n."}}, {"text": "s. 86", "label": "PROVISION", "start_char": 20741, "end_char": 20746, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 87", "label": "PROVISION", "start_char": 20757, "end_char": 20762, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 20766, "end_char": 20789, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 20922, "end_char": 20949, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 22005, "end_char": 22032, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 22334, "end_char": 22361, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1965_3_429_432_EN", "year": 1965, "text": "THE TATA IRON AND STEEL CO. LTD.\n\nD.R. SINGH March 19, 1965\n\n[P. B. GAJENDRAGADKAR, c. J., K. N. WANCHOO AND B\n\nV. RAMASWAMI, JJ.]\n\nIndustrial Disputes Aci, 1947 (14 of 1947), s.\n\nRequest to Tribunal to conSider workman-Rej)usal-Pro priety of.\n\nBecause certain industrial disputes were pending before the In dustrial Tribunal at the relevant time. between the appellant and its C employees, the appellant filed an application under s. 33(2) (b) asking\n\ntor approval of action which it proposed to take against its employee- the respondent. The appellant urged that this application was made\n\n\"5 a matter of abundant caution and it wanted the Tribunal to consider the question as to whether the respondent was a workman concerned in the relevant industrial dispute at all before dealing with D the merits of the application. The Tribunal, being of the view that\n\nif the appellant thought that s. 33 did not apply, it should withdraw the application and take the consequences, dealt with the merits of the application. In appeal by special leave:\n\nHELD: The Tribunal was in error in not considering. the preliminary point raised by the appellant that the respondent was not a E workman concerned with the main industrial dispute and as such\n\nthe application made by it was unnecessary. [ 431E]\n\nIt is plain that in a situation like the present, where• judicial decisions differed on the construction of the words \"workman concerned in such dispute\", even if the appellant took the view that the workman against whom it was taking action was not a workman concern .. r ed with the main industrial disputes, it would be justified in refusing\n\nto take the risk of deciding the said point for itself. It would ho legitimate for an employer to make an application under s. 33 without pre\n\njudice to his case that s. 33 did not apply. [431D-E]\n\nCase law referred to.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 423 of\n\nG 1964.\n\nAppeal by special leave from the order dated October 5, 1962 of the Central Government Industrial Tribunal at Dhanbad in Application No. 53 of l.961 in Reference Nos. 45, 56, 63 and 65 of 1961.\n\nS. V. Gupte, Solicitor-General and I. N. Shroff, for the appel- B !ant.\n\nJitendra Sharma and Janardan Sharma, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nGajendragadkar, C. J. This appeal raises a very short point for our decision. The appellant, the Tata Iron & Steel Co. Ltd.,\n\nL/P(N)6SCI 429\n\nSUPREME COURT REPORTS\n\n. (19651 3 B.0.B\n\nJamadoba, filed a.11 application under s. 33(2)(b) of the Industrial A Disputes Act, 1947 (No. 14 of 1947) (hereinafter called \"the Act\"), before the Central Government Industrial Tribunal, Dhanbad (hereinafter called \"the Tribunal\"), asking for its approval of the action\n\nwhich it proposed to take against its employee, the respondent D. R. Singh. This application was made by the appellant, because certain industrial disputes were pending at the relevant time between B\n\nthe appellant and its employees under References Nos. 45, 56, 63 and 65 of 1961. This application was opposed by the respondent who filed his written statement. At the hearing of the application, the appellant urged before the Tribunal that though it had made the present application as a matter of abundant caution, its case was that it was not necessary to apply under s. 32(2), because the C respondent was not concerned with the industrial disputes which were pending between the appellant and its employees in the different References to wh, ich we have already referred. In other words, the appellant wanted the Tribunal to consider the question as to whether the respondent was a workman concerned in the relevant D industrial disputes at all, before dealing with the merits of its av.- plication. The appellant's case was that one of the conditions precedent for the applicability of s. 33 is that the workman against whom the employer seeks to take action falling under s. 33(2), must be a workman concerned in the main industrial disputes; if he is not so concerned, s. 33(2) will not apply. In order to avoid any complica· tions and with a view to save itself from the charge that it had con- E travened s. 33 of the Act, the appellant had no doubt made arl application as a precautionary measure; that is why it wanted the Tribunal to consider its contention that. s. 33 did not apply as a preliminary point. The Tribunal took the view that the appellant cocld not raise such a contention. It held that if the appellant thought that s. 33 did not apply, it should withdraw the application F and take the consequences. On that view, it refused to entertain the plea raised by the appellant and proceeded to deal with the merits of the application. In the result, the Tribunal was not satisfied that a prima facie case had been made out for the dismissal of the respondent, and so, approval was not accorded to the act; on which the appellant wanted to take against the respondent and its applica- G tion was accordingly dismissed. It is against this order that the appellant has come to this Court by special leave.\n\nThe learned Solicitor-General for the appellant contends, and we think rightly, that the Tribunal was in error in not dealing with the preliminary point as to whether s. 33 applied to the facts of this case. It is plain that in a situation like the present, even if the H appellant took the view that the workman against whom it was taking action was not a workman concerned with the main industrial disputes, it would be justified in refusing to take the risk of deciding the said point for itself. It would be legitimate for an employer like the appellant to make an application under s. 33, without prejudice to his case that s. 33 did not apply. The question\n\n'l'ATA IRON & STEEt do. LTD. !), ]), R. SINGH (Gtrjendragadkar, O.J.) 4Sl\n\nA about the construction of the words \"a workman. concerned in such\n\ndispute\" which occur in .s. 33(1) and (2) has been the subject matter of judicial decisions and somewhat inconsistent views had been\n\ntaken by different High Courts on this point. Some High Courts canstrued the said words in a narrow way, vide New Jehangir\n\nVakil Mills Ltd., Bhavnagar v. N. L. Vya!' & Ors.,(') while others B put a broader construction on them, vide Ea!'tern Plywood Manufacturing Company Ltd v. Eastern Plywood Manufacturing Workers' Union('). Newton Studios Ltd. v.\n\nEthiraju/u\n\n(T. R.) & Others('), and Andhra Scientific Company Ltd. v. Seshagiri Rao IA.).('). This problem was ultimately resolved by this Court in its two recent decisions, viz., New India Motors (Private) Ltd. v. 0 Morris (K.T.)('l and Digwadih Colliery v. Ramji Singh('}. In this\n\nlatter this Court considered the conflicting judicial decisions rendered\" by the different High Courts and has approved of the broader construction of the words \"workmen concerned in such dispute\". Where judicial decisions differed on the construction of the words \"workmen concerned in such dispute'', it would be idle D and unreasonable to suggest that the employer should make up his\n\nmind whether s. 33 apphs or not, and if he thinks that s. 33 does not apply, he need not make the application; on the other hand, if he thinks that s. 33 applies, he should make an application, but then he cannot be permitted to urge that the application is unnecessary. Such a view is, in our opinion, wholly illogical and unsatisfac- E tory. Therefore, we must hold that the Tribunal was in error in not\n\nconsidering the preliminary point raised by the appeilant that the respondent was not a workman concerned with the main industrial disputes and as such, the application made by it wits unnecessary.\n\nThal raises the question as to the course that we should adopt in dealing with the merits of the present appeal. Logically, it would F be necessary to make a finding on the preliminary point raised by\n\nthe appellant before the merits are considered, because if the appellant is right in contending that the respondent is not a \"workman concerned with such disputes\" within the meaning of s. 32(2), the application would be unnecessary and there would be no jurisdiction in the Tribunal either to accord or to refuse approval G to the action proposed to be taken by the appellant against the respondent. In the present case, however, we do not propose to adopt such a course. The order terminating the services of the respondent was passed on December 4, 1961 and it was to take effect from December 9, 1961. The Award was pronounced by the Tribunal on October 5, 1962, and when the appeal has come for final disposal II before us, more than three years have elapsed since the date of dismissal of the respondent. The learned Solicitor-General fairly conceded that the appellant has come to this Court not so much to enforce its order of dismissal against the respondent, as to have a\n\n(') [19581 II LLJ 575.\n\n(') [19521 I LLJ 628.\n\n(') [1958] I LLJ 63.\n\n(') [1959] II LL.J 717.\n\n(') [1960] I LLJ 551.\n\n(') [1964] II LLJ 143.\n\n. 432 SUPBBllll: OOUBT Bl!PORTS [19611] S 1.0.a.\n\ndecision from this Court on the point of law raised by it before the A Tribunal. Accordingly, we have decided that point in favour of the appellant; but having regard to the long passage of time between\n\nthe date of the impugned order and the date when we are pronouncing our judgment in the present appeal, we think it would be in expedient and unjust to send 'the matter back to the Tribunal with a direction that it should decide the preliminary point raised by the\n\nJI appellant as to whether the respondent is a \"workman concerned in such disputes\" within the meaning of s. 33(2) of the Act. That is\n\nwhy though we have reversed the finding of the Tribunal on the preliminary point, we do not propose to give this litigation any further lease of life.\n\nIn the result, without examining the merits of the findings G recorded by the Tribunal for not according approval to the dismissal of the respondent, we direct that the appeal fails and is dismissed. There would be no order as to costs.\n\nAppeal dismissed.", "total_entities": 43, "entities": [{"text": "THE TATA IRON AND STEEL CO. LTD", "label": "PETITIONER", "start_char": 0, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "THE TATA IRON AND STEEL CO. LTD", "offset_not_found": false}}, {"text": "R. SINGH March", "label": "RESPONDENT", "start_char": 36, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "R. SINGH March", "offset_not_found": false}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 62, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "P. B. GAJENDRAGADKAR", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 91, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "V. 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Shroff", "label": "LAWYER", "start_char": 2154, "end_char": 2166, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-General and I. N. Shroff, for the appel- B !"}}, {"text": "Jitendra Sharma", "label": "LAWYER", "start_char": 2192, "end_char": 2207, "source": "ner", "metadata": {"in_sentence": "Jitendra Sharma and Janardan Sharma, for the respondent."}}, {"text": "Janardan Sharma", "label": "LAWYER", "start_char": 2212, "end_char": 2227, "source": "ner", "metadata": {"in_sentence": "Jitendra Sharma and Janardan Sharma, for the respondent."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 2294, "end_char": 2308, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendragadkar, C. J. This appeal raises a very short point for our decision.", "canonical_name": "P. B. GAJENDRAGADKAR"}}, {"text": "Tata Iron & Steel Co. Ltd.", "label": "PETITIONER", "start_char": 2391, "end_char": 2417, "source": "ner", "metadata": {"in_sentence": "The appellant, the Tata Iron & Steel Co. Ltd.,\n\nL/P(N)6SCI 429\n\nSUPREME COURT REPORTS\n\n. ("}}, {"text": "Jamadoba", "label": "PETITIONER", "start_char": 2477, "end_char": 2485, "source": "ner", "metadata": {"in_sentence": "19651 3 B.0.B\n\nJamadoba, filed a.11 application under s. 33(2)(b) of the Industrial A Disputes Act, 1947 (No."}}, {"text": "s. 33(2)(b)", "label": "PROVISION", "start_char": 2516, "end_char": 2527, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial A Disputes Act, 1947", "label": "STATUTE", "start_char": 2535, "end_char": 2566, "source": "regex", "metadata": {}}, {"text": "Central Government Industrial Tribunal, Dhanbad", "label": "COURT", "start_char": 2627, "end_char": 2674, "source": "ner", "metadata": {"in_sentence": "14 of 1947) (hereinafter called \"the Act\"), before the Central Government Industrial Tribunal, Dhanbad (hereinafter called \"the Tribunal\"), asking for its approval of the action\n\nwhich it proposed to take against its employee, the respondent D. R. Singh."}}, {"text": "D. R. Singh", "label": "RESPONDENT", "start_char": 2814, "end_char": 2825, "source": "ner", "metadata": {"in_sentence": "14 of 1947) (hereinafter called \"the Act\"), before the Central Government Industrial Tribunal, Dhanbad (hereinafter called \"the Tribunal\"), asking for its approval of the action\n\nwhich it proposed to take against its employee, the respondent D. R. Singh."}}, {"text": "s. 32(2)", "label": "PROVISION", "start_char": 3323, "end_char": 3331, "source": "regex", "metadata": {"linked_statute_text": "the Industrial A Disputes Act, 1947", "statute": "the Industrial A Disputes Act, 1947"}}, {"text": "s. 33", "label": "PROVISION", "start_char": 3844, "end_char": 3849, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)", "label": "PROVISION", "start_char": 3931, "end_char": 3939, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)", "label": "PROVISION", "start_char": 4029, "end_char": 4037, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 4167, "end_char": 4172, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 4329, "end_char": 4334, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 4497, "end_char": 4502, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 5247, "end_char": 5252, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 5667, "end_char": 5672, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 5709, "end_char": 5714, "source": "regex", "metadata": {"statute": null}}, {"text": "'l'ATA IRON & STEEt do. LTD", "label": "JUDGE", "start_char": 5744, "end_char": 5771, "source": "ner", "metadata": {"in_sentence": "The question\n\n'l'ATA IRON & STEEt do."}}, {"text": "R. SINGH", "label": "JUDGE", "start_char": 5781, "end_char": 5789, "source": "ner", "metadata": {"in_sentence": "R. SINGH (Gtrjendragadkar, O.J.) 4Sl\n\nA about the construction of the words \"a workman.", "canonical_name": "R. SINGH March"}}, {"text": "Gtrjendragadkar", "label": "JUDGE", "start_char": 5791, "end_char": 5806, "source": "ner", "metadata": {"in_sentence": "R. SINGH (Gtrjendragadkar, O.J.) 4Sl\n\nA about the construction of the words \"a workman."}}, {"text": "s. 33(1)", "label": "PROVISION", "start_char": 5913, "end_char": 5921, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 7061, "end_char": 7066, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 7103, "end_char": 7108, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 7196, "end_char": 7201, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32(2)", "label": "PROVISION", "start_char": 8042, "end_char": 8050, "source": "regex", "metadata": {"statute": null}}, {"text": "December 4, 1961", "label": "DATE", "start_char": 8396, "end_char": 8412, "source": "ner", "metadata": {"in_sentence": "The order terminating the services of the respondent was passed on December 4, 1961 and it was to take effect from December 9, 1961."}}, {"text": "December 9, 1961", "label": "DATE", "start_char": 8444, "end_char": 8460, "source": "ner", "metadata": {"in_sentence": "The order terminating the services of the respondent was passed on December 4, 1961 and it was to take effect from December 9, 1961."}}, {"text": "October 5, 1962", "label": "DATE", "start_char": 8506, "end_char": 8521, "source": "ner", "metadata": {"in_sentence": "The Award was pronounced by the Tribunal on October 5, 1962, and when the appeal has come for final disposal II before us, more than three years have elapsed since the date of dismissal of the respondent."}}, {"text": "S 1", "label": "PROVISION", "start_char": 9020, "end_char": 9023, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(2)", "label": "PROVISION", "start_char": 9606, "end_char": 9614, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_433_438_EN", "year": 1965, "text": "RAI SAHIB DR. GURDITIAMAL KAPUR\n\nMAHANT AMAR DAS CHELA MAHANT RAM\n\nSARAN AND ORS.\n\nMarch 19, 1965\n\n[K. N. WANCHOO, J.R. MUDHOLKAR AND S. M. S11w, JJ.)\n\nMverse possession-Doubtftul whether Akhara, or its Mahant was oc<:Upancy tenant-Forfeiture of tenancy-Right of Mahant's successor to sue for possession,\n\nThe appellant was the owner of the suit land. Alleging that the 2nd respondent, who was the Mahant of an Akhara, was the occupancy tenant and that he had allowed his lessee to dig it up and rendered it unfit for cultivation, the. appellant evicted the 2nd respondent from a part of the land in 194-0, and from the rest of it in\n\n1943. In 1950, the 2nd respondent was removed from tbe office of Mahan!, in proceedings under s. 92, C.P.C., and in 1953, the 1st respondent was appointed in his place. In 1957 the 1st respondent filed a •uit for possession ot the land, alleging that the Akhara itself was the occupancy tenant. The trial court decreed :the suit and the High <:ourt confirmed the decree. In the appe\"l to this Court, the appellant contended that the suit was barred by limitation.\n\nHELD: Upon the eviction of the 2nd respondent the occupancy right in the land merged in .the right of ownership of the appellant.\n\nApart from it, the actual physical possession of the land having been continuously wi.n the appellant to the exclusion of the occupancy tenant, . whether it was the 1st respondent or the Akhara itself, for a period of more than 12 years before the institution of the suit, the occupancy right was extinguished. If the 2nd respondent reJ)Tesented the Akhara in the eviction proceeding the decrees therein would bind the 1st respondent as his successor. If the 2nd respondent.did not represent the Akhara, the possession of the appellant under those decrees would be adverse to the Akhara. The 2nd respondent as the Mahant, or the Receiver appointed by the Court in the s. 92 J)Toceedings, could have filed a suit on behalf of the Akhara, and so, the 1st respondent's suit after 12 vears of adverse possession by the appellant was barred. [ 436D\"E; 438F-H]\n\nSudaram Das v. Ram Kirpal, L.R. 77 I.A. 42 and Subbaiya v.\n\nMustapha, L.R. 50 I.A. 295, applied\n\nDwi; endra Narain Roy v. Joges Chandra De, A.I.R. 1924 Cir!, 600, referred to.\n\nCML APPELLATE JURISDICTION: Civil Appeal No. 471 of 1963. .\n\nAppeal by special leave from the judgment and decree dated November 9. 1960 of the Punj:tb High Court in Regular Second Appeal No. 1627 of 1960.\n\nSUPREME COURT REPORTS [1965] 3 s.c.it.\n\nS. V. Gupte, Solicitor General, B. K. Khanna, R. K. Garg, A D. P. Singh, S. C. Agarwal and M.K. Ramamurthi, for the appellant.\n\nN.C. Chatterjee and M.S. Gupta, for respondent No. 1.\n\nP.K. Chatterjee and RH. Dhebar, for respondent No. 11.\n\nThe Judgment of the Court was delivered by\n\nMudholkar, J. 'fhe short point which falls to be considered in this appeal by special leave from a judgment of the High Court of Punjab dismissing the appellant's appeal in limine is whether the\n\nsuit for possession instituted by the plaintiff-respondent No. 1 is within time. There are ten respondents to the appeal out of whom only two, the plaintiff-respondent No. 1 Amardas and respondent No. 11 Union of India are represented .. While the appeal is contested by the first respondent it is supported by the Union of India.\n\nThe facts which are not disputed before us are briefly these:·\n\nThe appellant has a share of 122! /143! in the land in suit.\n\nThe occupancy tenant of this land is Akhara Nirbansar of Sultanwind Gate, Amritsar. The second respondent Ram Saran Das was Mahant of this Akhara till the year 1950 when he was removed by virtue of an order made by a civil court in a suit under s. 92 of the Code of Civil Procedure, confirmed in appeal on September 11,\n\n1950. On December. 29, 1953 respondent No. 1 was appointed as Mahant in place of respondent No. 2.\n\nOn September 15, 1939 the appellant instituted a suit in a revenue court under ss. 38 and 39 of the Punjab Tenancy Act (hereafter referred to as the Act) for possession of 141 kanals 8 marlas of land on the ground that he had granted a sub-lease thereof for the manufacture of bricks to someone by utilising earth dug up from that Janet This, according to the appellant, was in contraven- tion of the provisions of s. 39 of the Act and entitled him to eject\n\nrespondent No. 2. The Revenue Court held that out of the land sub-leased by respondent No. 2 only a certain portion was dug up\n\nby the sub-Jessee and, therefore, the ejectment of the second respon- . G dent was confined to that area of land which had been dug up. The date of the ejectment decree was June 3, 1940. The second respon- . dent preferred an appeal before the Collector from that decree\n\nwhich was dismissed on October 19, 1940. Shortly thereafter the appellant obtained possession of the land from which the second\n\nrespondent was ordered to be ejected The lessee of the second respondent, however, continued to dig up the rest of the land and, therefore, the appellant instituted a second suit for the ejectment of the second respondent therefrom. The Assistant Collector who tiied the suit granted a decree to the appellant in respect of the e1,1tire land which was left with the second respondent after he was d1Spossessed from a part of the land leased to him unde rthe earlier decree. In appeal, however, the Collector modified the order of\n\nKAPUR v. AMAR l>A8 (Mudholkar, J.) 430\n\nA ejectment by leaving out of the land 29 kanals and 14 marlas. This order was made on May 31, 1943. Shortly thereafter the appellant obtained possession of the land with respect to which the Collector\n\nhad confirmed the order of ejectment in the appeal.\n\nOn March, 18, 1957 the first respondent instituted a suit n against the appellant and the second respondent. According to respondent No. I Akhara Nirbansar was not bound by the actions of Mahant Ram Saran Das, the second respondent, which were tanta mount to alienation of the land which, according to him, were neither for legal necess; ty nor for the benefit of the estate. He contended that on the contrary the action of Ram Saran Das in alienat- . O ing the land was unauthorised and illegal and because what he did\n\nwas not for legal necessity nor for conferring any benefit on the estate.\n\nThe appellant contested the suit on two main grounds. The first was that the land in question was never attached to the Akhara D hut that Mahant Ram Saran Das, the second respondent, was it.5 occupancy tenant and that as the sub-lessee of the land had dug it up and rendered it unfit for cultivation the appellant as the owner of the land was entitled to eject respondent No. 2 by forfeiting the lease. He denied that the land was wakf property and contended that the occupancy rights existing in favour of the second respon- E dent were extinguished by the orders of the revenue courts which still hold good. The second point was that as the appellant was in continuous possession of the .land in suit as owner in his own right for more than 12 years preceding the suit openly and to the exclusion of the second respondent and respondent No. I the suit was barred by time.\n\nIn his replication respondent No. I reiterated that the property in suit belongs to and is owned by the Akhara Nirbansar as its occupancy tenant and that the second respondent was never its occupancy tenant. Therefore, according to him, there was no question of extinguishment of occupancy rights in consequence of the two decrees made by the revenue courts. He contended that the action of !he second respondent in leasing out the land for digging\n\nup earth was a transfer which, not being for legal necessity nor for the benefit of the estate, was unauthorised. According to him the mere fact that the appellant was in possession of. the land for more than 12 years makes no difference to the suit and that the land being trust property a suit for its recovery could be brought within 12 years from the date of \"death, resignation or removal\" of the manager of such a property. He added that there was no question of the appellant being in possession in his own right of the land for more than 12 years. The suit was decreed by the trial court and\n\nits decision was uoheld in aopeal by the second Additional District Judge, Amritsar. The appellant's second appeal was dismissed in limine by the High Court, ·\n\n. 436\n\nSUPREME COURT REPORTS [1965] 3 S.C.Re\n\nUpon the view which we take on the question of limitation it has become unnecessary to decide the other points.\n\nThe learned Solicitor General who appears for the appellant relies strongly upon the averments of the appellant in his written statement that he is occupying the land in suit for a period of over 12 years from the date of the institution of the suit as owner in his own right and not as an occupancy tenant and that even if his occupation is regarded to be that of an occupancy tenant as alleged by the first respondent, he has acquired the proprietary rights in this property by operation of statute. The Solicitor General relies on the further averments to the effect that the original occupancy tenant of the land was the second respondent and not the Akhara and also contended that whether it was one or the other made no difference. For, the tenant's occupancy rights were extinguis)led by\n\nthe decrees passed in the ejectment suits and consequently there was no cause of action for the present suit As pointed out by the learned Solicitor General, respondent N:o. 1 in his replication has not disputed the fact that the appellant was in possession for more than 12 years before the institution of the suit and that the only way dn which he tried to meet it was by saying that this fact made\n\nno difference to his case.\n\nIt seems to us clear that upon the eviction of respondent No. 2 from a part of the land in the year 1940 and the rest of it in the year 1943 the occupancy right with respect to the land merged In the right of ownership of the appellant. Apart from that it is clear that the actual physical i; ossession of the land having been continuously with the appellant to the exclusion of the occupancy tenant, whether it was respondent No. 1 or the Akhara itself. for a period more than 12 years before the institution of the suit that right was extinguished.\n\nMr. Gupta, learned counsel for respondent No. 1, however, sought to meet this position by urging that the second respondent's act amounted to an alienation, that it was not established that it was for legal necessity and that, therefore, respondent No. 1 as the successor of respondent No. 2 to the office of Mahantship of the\n\nAkhara could institute a su, it within 12 years of his succession to the office. This succession to his office must, according to him; be deemed to have occurred when upon the dismissal in the year 1950 of the appeal preferred by respondent No. 2 against the decision of the trial court removing him from Mahantship; later the respondent No. 1 was appoinfed a Mahant. That was on December 12, 1953.\n\nThe suit having been filed within 12 years of that date, so Mr.\n\nGupta contends, must be held to be within time. The simple answer\n\nto this contention is that what happened in this case was the forfeiture of the occupancy tenancy by t)le appellant as landlord .. In no sense can this be regarded as, or even likened to alienation, which is a voluntary act of the alienor in favour of the aEenee. The appellant is thus not an alieriee from the respondent No. 2 Ram Saran Das.\n\n, .\n\nKAPUR v. AMAR DAS\n\nJ.) 437\n\nA Mr. N. C. Chatterjee who also appeared for the first respondent raised a novel contention. According to him, adverse possession against the Akhara, which was the real occupancy tenant, could not commence till respondent No. 1 was appointed as Mahant because during the interval there was no person who was competent to institute a suit on behalf of the Akhara for the possession of the B lands of which the appellant was in adverse possession. In support of the contention he has placed reliance upon the decision in Dwijendra Narain Roy v. loges Chandra De('). In particular learned counsel has relied upon the following observations of Mookerjee J., who delivered the judgment of the.Court. They are:\n\n\"The substance of the matter is that time runs when the cause of action accrues, and a cause of action accrues, when there is in existence a person who can sue and another who can be sued ......... The cause of action arises when and only when the aggrieved party has the right to apply to the proper tribunals for relief. The statute (of limitation) does not attach to a claim for which there is as yet no right of action and does not ruri against a right for which there is no corresponding remedy or for which judgment cannot be obtained. Consequently the true test to determine when a cause of action has accrued is to ascer- 'tain the time when plaintiff could first have maintained his\n\naction to a successful result.\" (p. 609).\n\nHe further brought to our notice that these observations have received the approval of this Court in F. Lakshmi Reddy v. L. Lakshmi Reddy('), at p. 206. In the case which came up before this Court\n\nthe facts which are set out in the head note were as follows:\n\n\"V died an infant in 1927 and H, an agnatic relation filed a suit for the recovery of the properties belonging to V which were in the possess; on of third parties, on the ground that he was the sole nearest male agnate entitled to all the properties. During the pendency of the suit a Receiver was appointed for the properties in February, 1928.\n\nThe suit having been decreed H obtained possession of\n\nthe properties from the Receiver on January 20, 1930, and after his death in 1936, his nephew, the appellant, got into possession as H's heir. On October 23, 1941 the respondent brought the present suit for the recovery of a oncthird share of the properties from the appellant on the footing that he and his brother were agnatic relations of V of the same degree as H, that all th_e three were equal co-heirs of V and that H obtained the decree and got into possession on behalf of all the co-heirs. The appellant resisted the suit and contended that the respondent lost his right by the adverse possession of H and Ii.is successor and that for this purpose not only the period from\n\n(') A.I.R. 1924 Ca.I. 600.\n\n(1) [1957] S.C.R. 195.\n\nSUPREME COURT REPORTS [1965) 3 s.c.R.\n\nJanuary 20, 1930 to October 23, 194i was to be counted but also the prior period when the Receiver was in possession of the properties during the pendency of H's suit.\n\nIt was found that the respondent's case that H obtained the decree and got possessfon from the Receiver on behalf of the other co-heirs was not true.\"\n\nThe facts of that case were different and it was on these facts that B\n\nthis Court held that the respondent did not lose his right by adverse possession. It is in the context of these facts that the learned Judges cited with approval the observations of Mookerjee J., which we have set out. Assuming these observations are sound, it cannot be\n\nsaid in the case before us that i:t any point of time there was no person who was competent to institute a suit on behalf of the C Akhara. Respondent No. 2 was still the Mahant and could well have instituted a suit on behalf of the Akhara if in fact there was any cause of action for such a suit. Further, in the course of the suit the possession was with a Receiver who had been appointed\n\nby the court and was thus competent in law to institute a suit.\n\nWe may point out that a Mahant of an Akhara represents the D Akhara and has both the right to institute a wit on its behalf as also the duty to defend one brought against it. The law on the subject has been stated very clearly at pp. 274 and 275 in Mukherjea's Hindu Law of Religious and Charitable Trust, 2nd, ed. It is poinied out that in the case of an execution sale of debutter property it\n\nis not the date of death of the incumbent of the Mutt but the date E of effective possession as a result of the sale from which the commencement of the adverse possession of the purchaser is to be computed for the purposes of art. 144 of the Limitation Act. This is in fact what the Privy Council has laid down in Sudarsan Das v.\n\nRam Kirpal ('). A similar view has been taken by the Privy Council\n\nin Subbaiya v. Mustapha('). What has been said in this case would F also apply to a case such as the present. Thus if respondent No. 2 could be said to have represented the Akhara in the two earlier suits, decrees made in them would bind the respondent No. l as he\n\nis successor in office of respondent No. 2. On the other hand if respondent No. 2 did not represent the Akhara, the possession of the appellant under the decree passed in these suits would clearly be G adverse to the Akhara upon the view taken in the two decisions of the Privy Council just referred to. The first respondent's suit having been instituted after the appellant has completed more than 12 years of adverse possession must, therefore be held to be barred by time.\n\nFor these reasons disagreeing with the courts below we set aside the 'decrees of the courts below and instead dismiss the suit of respondent No. 1 with costs in all the courts. 11\n\n(1) L. R. 77 I:A. 42. {') L.R. Ill) I.A. 295.\n\nAppeal allowed,", "total_entities": 57, "entities": [{"text": "RAI SAHIB DR. GURDITIAMAL KAPUR", "label": "PETITIONER", "start_char": 0, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "RAI SAHIB DR. GURDITIAMAL KAPUR", "offset_not_found": false}}, {"text": "MAHANT AMAR DAS CHELA MAHANT RAM\n\nSARAN AND ORS", "label": "RESPONDENT", "start_char": 33, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "MAHANT AMAR DAS CHELA MAHANT RAM SARAN AND ORS", "offset_not_found": false}}, {"text": "March 19, 1965", "label": "DATE", "start_char": 83, "end_char": 97, "source": "ner", "metadata": {"in_sentence": "March 19, 1965\n\n[K. N. WANCHOO, J.R. MUDHOLKAR AND S. M. S11w, JJ.)"}}, {"text": "K. N. WANCHOO, J", "label": "JUDGE", "start_char": 100, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 117, "end_char": 129, "source": "metadata", "metadata": {"canonical_name": "R. MUDHOLKAR", "offset_not_found": false}}, {"text": "S11", "label": "PROVISION", "start_char": 140, "end_char": 143, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 92", "label": "PROVISION", "start_char": 729, "end_char": 734, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 736, "end_char": 741, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 92", "label": "PROVISION", "start_char": 1899, "end_char": 1904, "source": "regex", "metadata": {"statute": null}}, {"text": "L.R. 77 I.A. 42", "label": "CASE_CITATION", "start_char": 2114, "end_char": 2129, "source": "regex", "metadata": {}}, {"text": "L.R. 50 I.A. 295", "label": "CASE_CITATION", "start_char": 2157, "end_char": 2173, "source": "regex", "metadata": {}}, {"text": "S. V. Gupte", "label": "PETITIONER", "start_char": 2511, "end_char": 2522, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor General, B. K. Khanna, R. K. Garg, A D. P. Singh, S. C. Agarwal and M.K. Ramamurthi, for the appellant."}}, {"text": "B. K. Khanna", "label": "LAWYER", "start_char": 2543, "end_char": 2555, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor General, B. K. Khanna, R. K. Garg, A D. P. Singh, S. C. Agarwal and M.K. Ramamurthi, for the appellant."}}, {"text": "R. K. Garg", "label": "LAWYER", "start_char": 2557, "end_char": 2567, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor General, B. K. Khanna, R. K. Garg, A D. P. Singh, S. C. Agarwal and M.K. Ramamurthi, for the appellant."}}, {"text": "A D. P. Singh", "label": "LAWYER", "start_char": 2569, "end_char": 2582, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor General, B. K. Khanna, R. K. Garg, A D. P. Singh, S. C. Agarwal and M.K. Ramamurthi, for the appellant."}}, {"text": "S. C. Agarwal", "label": "LAWYER", "start_char": 2584, "end_char": 2597, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor General, B. K. Khanna, R. K. Garg, A D. P. Singh, S. C. Agarwal and M.K. Ramamurthi, for the appellant."}}, {"text": "M.K. Ramamurthi", "label": "LAWYER", "start_char": 2602, "end_char": 2617, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor General, B. K. Khanna, R. K. Garg, A D. P. Singh, S. C. Agarwal and M.K. Ramamurthi, for the appellant."}}, {"text": "N.C. Chatterjee", "label": "LAWYER", "start_char": 2639, "end_char": 2654, "source": "ner", "metadata": {"in_sentence": "N.C. Chatterjee and M.S. Gupta, for respondent No.", "canonical_name": "N. C. Chatterjee"}}, {"text": "M.S. Gupta", "label": "LAWYER", "start_char": 2659, "end_char": 2669, "source": "ner", "metadata": {"in_sentence": "N.C. Chatterjee and M.S. Gupta, for respondent No."}}, {"text": "P.K. Chatterjee", "label": "LAWYER", "start_char": 2694, "end_char": 2709, "source": "ner", "metadata": {"in_sentence": "P.K. Chatterjee and RH."}}, {"text": "RH. Dhebar", "label": "LAWYER", "start_char": 2714, "end_char": 2724, "source": "ner", "metadata": {"in_sentence": "P.K. Chatterjee and RH."}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 2794, "end_char": 2803, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMudholkar, J. 'fhe short point which falls to be considered in this appeal by special leave from a judgment of the High Court of Punjab dismissing the appellant's appeal in limine is whether the\n\nsuit for possession instituted by the plaintiff-respondent No.", "canonical_name": "R. MUDHOLKAR"}}, {"text": "High Court of Punjab", "label": "COURT", "start_char": 2909, "end_char": 2929, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMudholkar, J. 'fhe short point which falls to be considered in this appeal by special leave from a judgment of the High Court of Punjab dismissing the appellant's appeal in limine is whether the\n\nsuit for possession instituted by the plaintiff-respondent No."}}, {"text": "Amardas", "label": "RESPONDENT", "start_char": 3164, "end_char": 3171, "source": "ner", "metadata": {"in_sentence": "1 Amardas and respondent No."}}, {"text": "Union of India", "label": "RESPONDENT", "start_char": 3194, "end_char": 3208, "source": "ner", "metadata": {"in_sentence": "11 Union of India are represented .. While the appeal is contested by the first respondent it is supported by the Union of India."}}, {"text": "Union of India", "label": "ORG", "start_char": 3305, "end_char": 3319, "source": "ner", "metadata": {"in_sentence": "11 Union of India are represented .. While the appeal is contested by the first respondent it is supported by the Union of India."}}, {"text": "Akhara Nirbansar", "label": "RESPONDENT", "start_char": 3485, "end_char": 3501, "source": "ner", "metadata": {"in_sentence": "The occupancy tenant of this land is Akhara Nirbansar of Sultanwind Gate, Amritsar.", "canonical_name": "Akhara Nirbansar"}}, {"text": "Amritsar", "label": "GPE", "start_char": 3522, "end_char": 3530, "source": "ner", "metadata": {"in_sentence": "The occupancy tenant of this land is Akhara Nirbansar of Sultanwind Gate, Amritsar."}}, {"text": "Ram Saran Das", "label": "RESPONDENT", "start_char": 3554, "end_char": 3567, "source": "ner", "metadata": {"in_sentence": "The second respondent Ram Saran Das was Mahant of this Akhara till the year 1950 when he was removed by virtue of an order made by a civil court in a suit under s. 92 of the Code of Civil Procedure, confirmed in appeal on September 11,\n\n1950.", "canonical_name": "Ram Saran Das"}}, {"text": "s. 92", "label": "PROVISION", "start_char": 3693, "end_char": 3698, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 3702, "end_char": 3729, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "September 11,\n\n1950", "label": "DATE", "start_char": 3754, "end_char": 3773, "source": "ner", "metadata": {"in_sentence": "The second respondent Ram Saran Das was Mahant of this Akhara till the year 1950 when he was removed by virtue of an order made by a civil court in a suit under s. 92 of the Code of Civil Procedure, confirmed in appeal on September 11,\n\n1950."}}, {"text": "December. 29, 1953", "label": "DATE", "start_char": 3778, "end_char": 3796, "source": "ner", "metadata": {"in_sentence": "On December."}}, {"text": "Mahant", "label": "RESPONDENT", "start_char": 3831, "end_char": 3837, "source": "ner", "metadata": {"in_sentence": "1 was appointed as Mahant in place of respondent No."}}, {"text": "September 15, 1939", "label": "DATE", "start_char": 3872, "end_char": 3890, "source": "ner", "metadata": {"in_sentence": "On September 15, 1939 the appellant instituted a suit in a revenue court under ss."}}, {"text": "ss. 38 and 39", "label": "PROVISION", "start_char": 3948, "end_char": 3961, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 4284, "end_char": 4289, "source": "regex", "metadata": {"statute": null}}, {"text": "June 3, 1940", "label": "DATE", "start_char": 4629, "end_char": 4641, "source": "ner", "metadata": {"in_sentence": "The date of the ejectment decree was June 3, 1940."}}, {"text": "October 19, 1940", "label": "DATE", "start_char": 4751, "end_char": 4767, "source": "ner", "metadata": {"in_sentence": "dent preferred an appeal before the Collector from that decree\n\nwhich was dismissed on October 19, 1940."}}, {"text": "May 31, 1943", "label": "DATE", "start_char": 5515, "end_char": 5527, "source": "ner", "metadata": {"in_sentence": "This order was made on May 31, 1943."}}, {"text": "March, 18, 1957", "label": "DATE", "start_char": 5687, "end_char": 5702, "source": "ner", "metadata": {"in_sentence": "On March, 18, 1957 the first respondent instituted a suit n against the appellant and the second respondent."}}, {"text": "Akhara Nirbansar", "label": "RESPONDENT", "start_char": 5823, "end_char": 5839, "source": "ner", "metadata": {"in_sentence": "I Akhara Nirbansar was not bound by the actions of Mahant Ram Saran Das, the second respondent, which were tanta mount to alienation of the land which, according to him, were neither for legal necess; ty nor for the benefit of the estate.", "canonical_name": "Akhara Nirbansar"}}, {"text": "Mahant Ram Saran Das", "label": "RESPONDENT", "start_char": 5872, "end_char": 5892, "source": "ner", "metadata": {"in_sentence": "I Akhara Nirbansar was not bound by the actions of Mahant Ram Saran Das, the second respondent, which were tanta mount to alienation of the land which, according to him, were neither for legal necess; ty nor for the benefit of the estate."}}, {"text": "Ram Saran Das", "label": "RESPONDENT", "start_char": 6108, "end_char": 6121, "source": "ner", "metadata": {"in_sentence": "He contended that on the contrary the action of Ram Saran Das in alienat- .", "canonical_name": "Ram Saran Das"}}, {"text": "SUPREME COURT REPORTS [1965] 3 S.C.Re", "label": "COURT", "start_char": 8374, "end_char": 8411, "source": "ner", "metadata": {"in_sentence": "436\n\nSUPREME COURT REPORTS [1965] 3 S.C.Re\n\nUpon the view which we take on the question of limitation it has become unnecessary to decide the other points."}}, {"text": "Gupta", "label": "OTHER_PERSON", "start_char": 10308, "end_char": 10313, "source": "ner", "metadata": {"in_sentence": "Mr. Gupta, learned counsel for respondent No."}}, {"text": "Akhara", "label": "RESPONDENT", "start_char": 10632, "end_char": 10638, "source": "ner", "metadata": {"in_sentence": "2 to the office of Mahantship of the\n\nAkhara could institute a su, it within 12 years of his succession to the office.", "canonical_name": "Akhara"}}, {"text": "December 12, 1953", "label": "DATE", "start_char": 11012, "end_char": 11029, "source": "ner", "metadata": {"in_sentence": "That was on December 12, 1953."}}, {"text": "N. C. Chatterjee", "label": "PETITIONER", "start_char": 11547, "end_char": 11563, "source": "ner", "metadata": {"in_sentence": "KAPUR v. AMAR DAS\n\nJ.) 437\n\nA Mr. N. C. Chatterjee who also appeared for the first respondent raised a novel contention.", "canonical_name": "N. C. Chatterjee"}}, {"text": "Akhara", "label": "RESPONDENT", "start_char": 11683, "end_char": 11689, "source": "ner", "metadata": {"in_sentence": "According to him, adverse possession against the Akhara, which was the real occupancy tenant, could not commence till respondent No.", "canonical_name": "Akhara"}}, {"text": "Mookerjee", "label": "JUDGE", "start_char": 12181, "end_char": 12190, "source": "ner", "metadata": {"in_sentence": "In particular learned counsel has relied upon the following observations of Mookerjee J., who delivered the judgment of the."}}, {"text": "January 20, 1930", "label": "DATE", "start_char": 13682, "end_char": 13698, "source": "ner", "metadata": {"in_sentence": "The suit having been decreed H obtained possession of\n\nthe properties from the Receiver on January 20, 1930, and after his death in 1936, his nephew, the appellant, got into possession as H's heir."}}, {"text": "October 23, 1941", "label": "DATE", "start_char": 13792, "end_char": 13808, "source": "ner", "metadata": {"in_sentence": "On October 23, 1941 the respondent brought the present suit for the recovery of a oncthird share of the properties from the appellant on the footing that he and his brother were agnatic relations of V of the same degree as H, that all th_e three were equal co-heirs of V and that H obtained the decree and got into possession on behalf of all the co-heirs."}}, {"text": "October 23, 194i", "label": "DATE", "start_char": 14441, "end_char": 14457, "source": "ner", "metadata": {"in_sentence": "R.\n\nJanuary 20, 1930 to October 23, 194i was to be counted but also the prior period when the Receiver was in possession of the properties during the pendency of H's suit."}}, {"text": "Mukherjea", "label": "OTHER_PERSON", "start_char": 15791, "end_char": 15800, "source": "ner", "metadata": {"in_sentence": "274 and 275 in Mukherjea's Hindu Law of Religious and Charitable Trust, 2nd, ed."}}, {"text": "art. 144", "label": "PROVISION", "start_char": 16164, "end_char": 16172, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 16180, "end_char": 16194, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1965_3_439_447_EN", "year": 1965, "text": "A COMMISSIONER OF INCOME-TAX, WEST BENGAi.,\n\nCALCUTTA\n\nGUNGADHAR BANERJEE AND CO. (P) LTD.\n\nMarch 22, 1965 IK. SUBBA RAo. J. C. SHAH AND S. M. SIKRI, JJ.J Indian Income-tax Act, 1922 (11 of 1922), s. 23A-Dividend-Distribution-Burden of showing whether low-Circumstances to be considered-\"Smal!ness of profit\"-Meaning of-\"Accountino profits\" and \"assessable profits\", distinction between.\n\nAs the dividend declared to be distributed by the respondentcompany at its General\" Body Meeting was below 60 per cent of the profits available for distribution, the Income-Tax Officer, with the previous approval of the Inspecting Assistant Commissioner, passed\n\nan order under s. 23-A of the Income-Tax Act directing that a certain higher amount shall be deemed to have been distributed as dividends as on the date of the annual general meeting\"of the Company. He found that, having regard to the profits earned in the earlier years and the capital and taxation reserves, payment of larger dividend would not be unreasonable. This was affirmed, on assessee's appeals by the Appellate Assistant Commissioner, and ihe Income-tax Appellate Tribunal. The Tribunal referred the question to the High Court under sec.\n\n66(1) of the Act, which concluded that having regard to the smallness of the profits. the order of the Income-tax Officer was not justified and answered the question in the assessee's favour. In appeal by certificate.\n\nHELD: Section 23A of the Income-tax Act is in the nature of a penal provision. In the circumstances mentioned therein, the entire undistributed portion of the assessable income of the company is deemed to be distributed as dividends. Therefore, the Revenue has strictly to comply with the conditions laid down thereunder. The\n\nburden therefore, was upon the Revenue to prove that the conditions laid down thereunder were satisfied, before the order was made.\n\nThomas Fattorini (Lancashire) Ltd. v. Inland Revenue Commis sion L.R. [1942] A.C. 643 applied.\n\nIn the present case the Revenue failed to discharge the said burden: indeed, the facts established stamp the order of the Income-tax Officer as unreasonable .. [ 446F, Gl\n\nThough the object of the section is to prevent evasion of tax, the provision must be worked not from the stand point of the tax collector but from that of a. businessman. The reasonableness or the unreasonableness of the amount distributed as dividends is judj!ed by business considerations, such as the previous losses, the present profits, the availability of surplus money and the reasonable requirements of the future •nd similar others. It is neither possible nor advisable to lay down any decisive tests for the guidance of the Income-tax Officer.\n\nIt depends upon the facts of each case. The only guidance is his capacity to put himself in the position of a prudent businessman. It is difficult to say that the Income-tax Officer cannot take into consideration any circUrnstances other than losses and smallness of profits. This argument ignores the expression \"having regard to\" that precedes\n\nthe said words in s. 23A of the Act. [ 444B-E] ,39\n\n440 SUPREME COURT llEPOllTS [19e5] S s.c.11.\n\nCommissioner of Income-tax v. Williamson Diamond Ltd. L.R.\n\nA (1958] A.C. 41, applied.\n\nSir Kasturchand Ltd. v. Commissioner of Income-tax, Bombay City, (1949) 17 I.T.R. 493, referred to. ' 'Ihe words \"smallness of profit\" in s. 23A of the Act refer to actual accounting profits in comparison With the assessable profits of the year. The two concepts \"accounting profits\" and '\"assessable profits\" are distinct. In arriving at the assessable profits the Income-tax Officer may disallow many expenses actually incurred by the assessee; and in computing his income he may include many items on notional basis. But the commercial or accounting profits are the actual profits earned by 1 an assessee calculated on commercial principles.· [ 445F-HJ\n\nCommissioner of Income-tax, Bombay City v. Bipinchandrc.\n\nMagan!a! and Co. Ltd. (1961) 41 I.T.R. 296, followed.\n\nIn a case whe<re an Income-tax Officer takes action under s. 23A of the Act before the tax for the relevant period is assessed, only the estimated tax can be deducted; but, there is no reason why, when the tax had already been assessed before he takes action under this sec• tion. the estimated tax and not the real tax shall be deducted from. [ 445H-446B]\n\nThere is no provision in the Income-tax Act. which makes the Balance Sheet final for the purpose of s. 23A of the Act or even for the assessment. It no doubt affords a prima facie proof of the financial position of the company on the date when the dividend was declared.\n\nBut nothing prevents the parties .in a suitable Gase to establish by cogent evidence that certain items were,· either by mistake or by design. inflated or deflated or that there were some omissions.\n\n[446B-D]\n\nOVIL APPELLATE JURISDICTION: Civil Appeal No. 807 of\n\n' Appeal from the judgment and order dated September 4, 1961 of the Calcutta High Court Income-tax Reference No. 85 of 1956.\n\nC.K. Daphtary, Attorney General,. R. Ganapathy Iyer and R. N. Sachthey, for the appeilant.\n\nF A. V. Viswanatha Sastri and S. C. Muzumdar, for the respondent.\n\nThe Judgment of the Court was deiivered by Sobba Rao, J. This appeal by certificate raises the question of the construction of the provisions of s. 23A of the Indian Income>- tax Act, 1922, hereinafter called the Act, before it was amended by the Finance Act. 1955. ·\n\nThe relevant and undisputed facts may be briefly stated.\n\nMessrs. Gungadhar Banerjee & Co. (Private) Ltd., the respondent herein, is a private limited company. At the General Body Meeting of the Company held on December 6, 1948, the Directors declared a dividend at the rate of 5! per cent. per share. The said distribution of dividends related to the accounting year 1947-48 which ended on April 13, 1948. According to the balance-sheet of the Company for that year the net profit for the said year was Rs .. l,28,112/7 /5. The taxation reserve was Rs. 56,000. The profit\n\nleft was Rs. 72,000. The Directors declared a dividend at the rate of 51 per cent. per share thus making a total distribution of Rs. 44,000.\n\nOn that basis the profit that was available for further distribution was Rs. 28,000. Though under the balance-sheet the estimated tax was Rs. 66,000, the tax assessed for the year was Rs. 79 ,400. If the difference between the tax assessed and the estimated tax was also deducted from the profits, there would only be a sum of Rs. 4,000 that would remain as undistributed profits.\n\nThe income-tax Officer assessed the total income of the assessee for the year 1948-49 at Rs. 2,66,766. After deducting the tax payable under the two heads, namely, LT. of Rs. 81,517/1310 and C.T. of Rs. 33,345/12/0, he held that a sum of Rs. 1,51,902/7 /0 was ava; lable for distribution to the shareholders as dividends. As the amount distributed by the Company was below 60 per cent. of the profits available for distribution. the Income-tax Officer, with\n\nthe previous approval of the Inspecting Assistant Commissioner of Income-tax, passed an order under s. 23-A of the Act directing that the 'amount of Rs 1.07,902 (i.e., Rs. 1,51,902 minus Rs. 44,000= Rs. 1,07,902) shall be deemed to have been distributed as dividends as on the date of the annual general meet'ng of the Company. He found that, having regard to the profits earned in the earlier years and the capital and taxation reserves, payment of larger dividends would not be unreasonable.\n\nThe assessee preferred an appeal to the Appellate Assistant Commissioner against the order made by the Income-tax Officer\n\nunder s. 23A of the Act. By the time the appeal came to be disposed of, in an appeal against the order of assessment the assessed income was reduced by a sum of Rs. 80,926. Notwithstanding the said deduction, as the amount of Rs. 44,000 distributed by the Company was less than 60 per cent. of the balance of Rs. 1,64,440 arrived at on the basis of the revised calculation, the Appellate Assistant Commissioner held that an action under s. 23A of the Act\n\nwas justified. He further held. that the assesee incurred no losses in the previous years, that in almost all the past assessments the assessee showed substantial profits, that the profits disclosed in the year of account were not small and that, therefore, the direction to pay a higher dividend was not unreasonable.\n\nOn a further appeal, the Income-tax Appellate Tribunal held that the amount of profits should be judged only from the balancesheet and that judged by the figures given thereunder a dividend to\n\nthe extent of Rs. 64,000 being 60 per cent. of the assessed profits less income-tax, could be distributed and that such distribution was\n\nnot unreasonable.\n\nThe Tribunal referred the following question under s. 66(1) of the Act for the decision of the High Court of Calcutta :\n\n\"Whether on the facts and in the circumstances of the case any larger dividend than that declared by the company could reasonably be distributed within the meaning\n\nof Section 23A of the Indian Income-tax Act and the application of Section 23A of the Indian lncome-tax Act was in accordance with law.\" The High Court held that the Tribunal went wrong in taking consideration the past profits instead of the past losses, the taxation reserves without considering the past liabilities for taxat10n, the profits for the year in question disclosed in the balance-sheet, 1gr:oring the actual tax assessed for that year. It came to the conclusion\n\nthat, having regard to the smaUness of the profits, the order of the Income-tax Officer was not justified. In the result, it answered both parts of the question referred to it in the negative. Hence the appeal.\n\nLearned Attorney-General, appearing for the Revenue, con tended that the balance-sheet of a company on the basis of which dividends were declared was final and the profits disclosed thereunder would be the correct basis for the Income-tax Officer acting under s. 23A of the Act; and, as the balance-sheet of the company for the relevant year showed a sum of Rs. 1,05,950 as \"capital reserve brought forward'', a sum of Rs. 5,73,161 as taxation reserve, and a sum of Rs. 56,000 as estimated tax, the Income-tax Officer rightly held that the financial condition of the Company was sufficiently sound to warrant an order under s. 23A of the Act. Alternatively he contended that if the respondent could be permitted to go behind the balance-sheet to ascertain the real profit, the Depart ment should also be likewise allowed to go behind the balance-sheet. to show that the commercial profit was larger and the reserves were in excess of the past liabilit; es and that in that event to remand the case for ascertaining the true state of facts.\n\nMr. AV. Viswanatha Sastri, appearing for the assessee-Company, contended that the burden lies on the Revenue to establish that .the dividend declared was not a reasonable one and that in the present case it had not discharged that burden. He further argued that for the purpose of \"testing the smallness of the profit\" the Income-tax Officer had to take into consideration not the assessable income but the commercial profit of the Company and that in\n\nthe present case, having regard to the commercial profit, a declaration of a higher dividend would be unreasonable. He pleaded that, should this Court hold that the Income-tax Officer could establish that the reserves were more than the liabilities, the assessee should also be permitted to prove what were its real, commercial profits\n\nthat the reserves were far less than the demands.\n\nThe contentions of learned counsel turn upon the provisions of s. 23A of the Act, before it was. amended by the Finance Act of\n\n1955. The mater'al part of that section reads:\n\n\"(1) Where the Income-tax Officer is satisfied that in respect of a'lY previous year the profits and gains distributed as dividends by any company up to the end of the\n\nsixth month after its accounts for that previous year are\n\nlaid before the company in general meeting are less than\n\nsixty per cent of the assessable income of the company of that previous year, as reduced by the amount of incometax and super-tax payable by the company in , respect\n\nthereof he shall, unless he is satisfied that having regard to losses incurred by the company in earlier years or to the smallness of the profit made, the payment of a dividend or a larger dividend than that declared would he unreasonable, make with tqe previous approval of the Inspecting\n\nAssistant Commissioner an order in writing that the undistr; buted portion of the assessable income of the company\n\nof that previous year as computed for income-tax purposes and reduced by the amount of income-tax and super-tax payable by the company in respect thereof shall be deemed to have been distributed as dividends\n\namongst the shareholders as at the date of the general meeting aforesaid, and thereupon the proportionate share thereof of each shareholder shall be included in the total. income of such shareholder for the purpose of assessing his total income.\"\n\nThe section is in three parts: the first part defines the scope of the\n\njurisdiction of the Income-tax Officer to act under s. 23A of the Act; the second part provides for the exercise of the jurisdiction in the manner prescribed thereunder; and the third part provides for the assessment of the statutory dividends in the hands of the shareholders. This section was introduced to prevent exploitation of\n\njuristic personality of a private company by the members thereof for the purpose of evading higher taxation. To act under this section the Income-tax Officer has to be satisfied that the dividends distributed by the Company during the prescribed period are\n\nless than the statutory percentage, i.e., 60 per cent., of the assessable income of the Company of the previous year less. the amount of Income-tax and super-tax payable by the Company in respect\n\nthereof. Unless there is a deficiency ; n the statutory percentage, the\n\nIncome-tax Officer has no jurisdiction to take further action thereunder. If that condition is complied with, he shall make an order declaring that the undistributed portion of the assessable income less the said taxes shall be deemed to have been distributed as d'vidends amongst the shareholders. But before doing so, a duty is cast on him to satisfy himself that, having regard to the losses 'ncurred by the company in earlier years or \"the smallness of the\n\nprofit made,\" the payment of a dividend or a larger dividend than that declared would be reasonable. The argument mainly centred\n\non this part of the section. Would the sat'sfaction of the Income-tax Officer depend only on the two circumstances, namely, losses and smallness of profit? Can he take into consideration other relevant circumstances? What does the expression \"profit\" mean? Does it\n\nmean only the assessable income or does it mean commercial or\n\nSUl>REME COliR't REPORTS\n\n(1965] 3 S.C.R.\n\naccounting profits? If the scope of the section is properly appreciated the answer to the said questions would be The Income tax Officer, acting under th's section. is not assessing any mcome t( tax: that will be assessed in the hands of the shareholders. He only does what the directors should have done. He puts himself in the\n\nplace of the directors. Though the object of the section is to prevent evasion of tax, the provision must be worked not from the standpoint of the tax collector but from that of a businessman.\n\nThe yardstick is that of a prudent businessman. The reasonableness or the unreasonableness of the amoqnt distributed as divi dends is judged by business considerations, such as the previous\n\nlosses, the present profits, the availability of surplus money and the reasonable requirements of the future and similar others. He must take an overall picture of the financial position of the bueyiness. It is neither possible nor advisable to lay down any decisive tests for the guidance of the Income-tax Officer. It depends upon the facts of each case. The only guidance is his capacity to put himself in the position of a prudent businessman or the director of a company and his sympathetic and objective approach to the difficult problem that arises in each case. We find it difficult to accept the argument that the Income-tax Officer cannot take into considera\n\ntion any circumstances other than losses and smallness of profits.\n\nThis argument ignores the expression \"having regard to\" that precedes the s 1id words.\n\nOn the interpretation of the words \"having regard to\" in s. 23A of the Act, the decision of a Division Bench of the Bombay High Court, consist; ng of Chagla C. J., and Tendolkar J., in Sir Kasturchand Ltd, v. Commissioner of Income-tax, Bombay City(') was relied upon by the appellant. Chagla C.J., speaking for the Court. held in that case that \"the reasonableness or unreasonableness of the payment of a dividend or a larger dividend has to be judged only with reference to the two facts mentioned in the section, viz., losses incurred by the company in earlier years and the smallness of the profit.\" To put the contrary construction, the learned Chief Justice said, \"would be to import into it words which the Legislature did not think fit to insert in that section and to expand the ambit of the discretion exercised by the Income-tax Officer.\" But the learned Chief of Justice did not expressly consider the scope of the expres sion \"having regard to\" found in the section. The Judicial Com mittee in Commissioner of Income-tax v.\n\nWilliamson Diamond Ltd.(') had to consider the srope of s. 21(1) of the Tanganyika In come-tax (Consolidation) Ordinance, 27 of 1950, which was pari materia with s. 23A of the Act. Adverting to the argument based\n\nupon the words \"having regard to\", their Lordships observed:\n\n\"The form of words used no doubt lends itself to the suggestion that regard should be paid only to the two mat ters mentioned, but it appears to their Lordships that it is\n\n(1) (1949] 17 I.T.R. 493.\n\n(') L.R. [1958] A.C. 41, 49.\n\nc. I. T. v. GUNGADHAR BANEBJEE (Subba Rao, J. 445\n\nimpossible to arrive at a conclusion as to reasonableness by considering the two matters mentioned isolated from other relevant factors. Moreover, the statute does not say \"having regard only\" to losses previously in9urred by the\n\ncompany and to the smallness of the profits made. No answer, which can be said to be in any measure adequate, can be given to the question of \"unreasonableness\" by considering these two matters alone. Their Lordships are of the opinion that the statute by the words used, while making sure that \"losses and smallness of profits\" are never lost sight of, requires all matters relevant to the question of unreasonableness to be considered. Capital losses,\n\nif established, would be one of them.\" With great respect, we entirely agree with this view. The contrary view unduly restricts the discretion of the. Income-tax Officer and compels him to hold a particular dividend reasonable though in fact it may be unreasonable.\n\nThe expression \"smallness of profit\" came under the judicial scrutiny of this Court in Commissioner of Income-tax, Bombay City v. Bipinchandra Magan/al & Co. Ltd.(') Therein, Shah, J., speaking for the Court observed thus:\n\n\"Smallness of the profit in section 23A has to be adjudged in the light of commercial principles and not in\n\nthe light of total receipts, actual or fictional. This view\n\na pp ears to have been taken by the High Courts in India without any dissentient opinion.\" The learned Judge laid down the following test: \"Whether it would be unreasonable to distribute a larger dividend is to be judged in the light of the profits of the year in question.\" If the assessable income\n\nwas the test and if the commercial profits are small, the learned Judge pointed out, the company would have to fall back either upon\n\nlts reserves or upon its capital which in law it could not do. This decision is binding on us and no further citation in this regard is\n\ncalled for. These tivo concepts, \"accounting profits\" and \"assessable profits\", are distinct. In arriving at the assessable profits the Income-tax Officer may disallow many expenses actually incurred by the assessee: and in computing his income, he may include many items on notional basis. But the commercial or accounting profits are the actual profits earned by an assessee calculated on commercial principles. Therefore, the words \"smallness of profit\" in the section refer to actual accounting profits in comparison with the assessable profits of the year.\n\nH Another incidental question is whether for the purpose of ascertaining the net commercial profits the tax estimated or the tax actually assessed shall be deducted. In a case where an Income-tax Officer takes action under s. 23A of the Act before the tax for the\n\nrelevant period is assessed, only the estimated tax can be deduct-\n\n(') (1961) 41 I.T.R. 290, 296,\n\nL P(N)4SCIed; but, there is no reason why, when the tax had already been assessed before he takes action under this section, the estimated tax and not the real tax shall be deducted therefrom. In this view, in the present case to ascertain the commercial profits what should be deducted is not the tax shown in the balance-sheet but the actual tax assessed on the income of the Company.\n\nAnother question raised is whether the balance-sheet is final and both the parties are precluded from questioning its correctness in any respect. There .js no provision in the Income-tax Act which makes the balance-sheet final for the purpose of s. 23A of the Act or even .for the assessment. It no doubt affords a prima facie proof of the financial position of the company on the date when the dividend was declared. But nothing prevents• the parties in a suitable case to establish by cogent evidence that certain items were, either by mistake or by design, inflated or deflated or that there were some omissions. It does not also preclude the assessee from proving that the estimate in regard to certain items has turned out to be wrong and placing the actual figures before the Income-tax Officer. But in this case no attempt was made before the Tribunal to canvass the correctness of the figures either on the debit side or on the credit side and we do not think we are justified to give another opportunity to either of the parties in this regard. Before the Tribunal there was no dispute that the actual tax assessed for the relevant year was much higher than the estimated tax shown in the balancesheet.\n\nSection 23A of the Act is in the nature of a penal provision.\n\nIn the circumstances mentioned therein the entire undistributed portion of the assessable income of the Company is deemed to be distributed as dividends. Therefore, the Revenue has strictly to comply with the conditions laid down thereunder. Th11 burden, therefore, lies upon the Revenue to prove that the conditions laid down thereunder were satisfied before the order was made: see Thomas Fat torini (Lancashire) Ltd. v. Inland Revenue Commissioners('). In the present case the Revenue failed to discharge the said burden: indeed, the facts established stamp the order of the Income-tax Officer as unreasonable.\n\nThe assessment orders passed by the Income-tax Officer are not before the Court. The balance-sheet shows a net profit of Rs. 1,28,112/7 /5 whereas the Income-tax Officer has computed the assessable income at Rs. 2,66,766, which was later reduced in appeal by'Rs. 80,925. There is no evi.dence on the record that the real commercial profits were artificially reduced in the balancesheet. Nor is there evidence to show what part of the income assessed represents commercial profits, and what part the notional income. In the circumstances it must be assumed that the amount mentioned in the balance-sheet correctly represented the commercial profits.\n\n(!) L.R. [1942] A.C. 643.\n\nC. I. T. V •. GUNGADHAR BANERJEE (Sub/Ja Rao, J.) 447\n\nFrom the figures already extracted at an earlier stage it is manifest that the net commercial profit was barely Rs. 4,000 and it is not possible to hold that it not unreaso.nable for the Income-tax Officer to make an order to the effect that the additional sum of Rs. 64,000 should be deemed to have been distribut ed as dividends amongst the shareholders.\n\nIn the result we hold that the order of the High Court is correct and dismiss the appeal with costs.\n\nAppeal dismissed.", "total_entities": 55, "entities": [{"text": "A COMMISSIONER OF INCOME-TAX, WEST BENGAi.,\n\nCALCUTTA", "label": "PETITIONER", "start_char": 0, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, WEST BENGAL CALCUTTA", "offset_not_found": false}}, {"text": "GUNGADHAR BANERJEE AND CO. (P) LTD", "label": "RESPONDENT", "start_char": 55, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "Gungadhar Banerjee & Co. (Private) Ltd.", "offset_not_found": false}}, {"text": "1965 IK. SUBBA RAo", "label": "JUDGE", "start_char": 102, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 125, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. M. SIKRI, JJ", "label": "JUDGE", "start_char": 137, "end_char": 152, "source": "metadata", "metadata": {"canonical_name": "S.M. 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Daphtary", "label": "PETITIONER", "start_char": 5027, "end_char": 5040, "source": "ner", "metadata": {"in_sentence": "C.K. Daphtary, Attorney General,."}}, {"text": "R. Ganapathy Iyer", "label": "LAWYER", "start_char": 5061, "end_char": 5078, "source": "ner", "metadata": {"in_sentence": "R. Ganapathy Iyer and R. N. Sachthey, for the appeilant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 5083, "end_char": 5097, "source": "ner", "metadata": {"in_sentence": "R. Ganapathy Iyer and R. N. Sachthey, for the appeilant."}}, {"text": "F A. V. Viswanatha Sastri", "label": "LAWYER", "start_char": 5119, "end_char": 5144, "source": "ner", "metadata": {"in_sentence": "F A. V. Viswanatha Sastri and S. C. Muzumdar, for the respondent."}}, {"text": "S. C. Muzumdar", "label": "LAWYER", "start_char": 5149, "end_char": 5163, "source": "ner", "metadata": {"in_sentence": "F A. V. Viswanatha Sastri and S. C. Muzumdar, for the respondent."}}, {"text": "Sobba Rao", "label": "JUDGE", "start_char": 5229, "end_char": 5238, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was deiivered by Sobba Rao, J. This appeal by certificate raises the question of the construction of the provisions of s. 23A of the Indian Income>- tax Act, 1922, hereinafter called the Act, before it was amended by the Finance Act.", "canonical_name": "Sobba Rao"}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 5331, "end_char": 5337, "source": "regex", "metadata": {"linked_statute_text": "There is no provision in the Income-tax Act", "statute": "There is no provision in the Income-tax Act"}}, {"text": "Gungadhar Banerjee & Co. (Private) Ltd.", "label": "RESPONDENT", "start_char": 5521, "end_char": 5560, "source": "ner", "metadata": {"in_sentence": "Messrs. Gungadhar Banerjee & Co. (Private) Ltd., the respondent herein, is a private limited company.", "canonical_name": "Gungadhar Banerjee & Co. (Private) Ltd."}}, {"text": "April 13, 1948", "label": "DATE", "start_char": 5846, "end_char": 5860, "source": "ner", "metadata": {"in_sentence": "The said distribution of dividends related to the accounting year 1947-48 which ended on April 13, 1948."}}, {"text": "s. 23", "label": "PROVISION", "start_char": 7112, "end_char": 7117, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 7636, "end_char": 7642, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 8067, "end_char": 8073, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 8808, "end_char": 8816, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 8852, "end_char": 8874, "source": "ner", "metadata": {"in_sentence": "The Tribunal referred the following question under s. 66(1) of the Act for the decision of the High Court of Calcutta :\n\n\"Whether on the facts and in the circumstances of the case any larger dividend than that declared by the company could reasonably be distributed within the meaning\n\nof Section 23A of the Indian Income-tax Act and the application of Section 23A of the Indian lncome-tax Act was in accordance with law.\""}}, {"text": "Section 23A", "label": "PROVISION", "start_char": 9046, "end_char": 9057, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 9072, "end_char": 9086, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 23A", "label": "PROVISION", "start_char": 9110, "end_char": 9121, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 9992, "end_char": 9998, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 10356, "end_char": 10362, "source": "regex", "metadata": {"statute": null}}, {"text": "AV. 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J., and Tendolkar J., in Sir Kasturchand Ltd, v. Commissioner of Income-tax, Bombay City(') was relied upon by the appellant."}}, {"text": "Tendolkar", "label": "JUDGE", "start_char": 16714, "end_char": 16723, "source": "ner", "metadata": {"in_sentence": "On the interpretation of the words \"having regard to\" in s. 23A of the Act, the decision of a Division Bench of the Bombay High Court, consist; ng of Chagla C. J., and Tendolkar J., in Sir Kasturchand Ltd, v. Commissioner of Income-tax, Bombay City(') was relied upon by the appellant."}}, {"text": "s. 21(1)", "label": "PROVISION", "start_char": 17640, "end_char": 17648, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 17746, "end_char": 17752, "source": "regex", "metadata": {"statute": null}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 18122, "end_char": 18131, "source": "ner", "metadata": {"in_sentence": "c. I. T. v. GUNGADHAR BANEBJEE (Subba Rao, J. 445\n\nimpossible to arrive at a conclusion as to reasonableness by considering the two matters mentioned isolated from other relevant factors.", "canonical_name": "Sobba Rao"}}, {"text": "section 23A", "label": "PROVISION", "start_char": 19346, "end_char": 19357, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 19539, "end_char": 19544, "source": "ner", "metadata": {"in_sentence": "This view\n\na pp ears to have been taken by the High Courts in India without any dissentient opinion.\""}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 20846, "end_char": 20852, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 21552, "end_char": 21566, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 21622, "end_char": 21628, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23A", "label": "PROVISION", "start_char": 22589, "end_char": 22600, "source": "regex", "metadata": {"statute": null}}, {"text": "GUNGADHAR BANERJEE", "label": "RESPONDENT", "start_char": 23958, "end_char": 23976, "source": "ner", "metadata": {"in_sentence": "C. I. T. V •. GUNGADHAR BANERJEE (Sub/Ja Rao, J.) 447\n\nFrom the figures already extracted at an earlier stage it is manifest that the net commercial profit was barely Rs.", "canonical_name": "Gungadhar Banerjee & Co. (Private) Ltd."}}, {"text": "Ja Rao", "label": "JUDGE", "start_char": 23982, "end_char": 23988, "source": "ner", "metadata": {"in_sentence": "C. I. T. V •. GUNGADHAR BANERJEE (Sub/Ja Rao, J.) 447\n\nFrom the figures already extracted at an earlier stage it is manifest that the net commercial profit was barely Rs."}}]}
{"document_id": "1965_3_448_452_EN", "year": 1965, "text": "EMPJ, OYERS IN RELATION TO DIGW ADIB COLLIERY A v.\n\nTHEIR WORKMEN\n\nMarch 22, 1965\n\n[P. B. GAJENDRAGADKAR, C. J., K. N. W ANCHOO.: M. HIDAYATULLAH\n\nAND V. RAMASWAMY, JJ.] Ind.w; trial Disputes Act (14 of 1947), ss. 25B and 25F-Continuous servi'ce, meaning of.\n\nA bad!i workman worked as the appellant's employee for more than 240 days, with interruptions in each of the calendar years 1959 and 1960. He was retrenched in 1961. An industrial dispute having arisen, it was referred to the Tribunal, which held, that the appellant was not justified in terminating the services of the workman as the provisions of s. 25F of the Industrial Disputes Act, 1947 were not complied with.\n\nTn its appeal to this Court, the appellant contended that the section could a.pply only if the workman had put in 240 days' conti. nuous service in any of the years 1959 and 1960.\n\nHELD: Section 25B says that, for the purpose of s. 25F a workman who, in a period of 12 calendar months has actually worked for not less than 240 days shall be deemed to have completed one year of continuous service. Service for 240 days in a period of 12 calendar\n\nmonths is equal not only to service for a year but is to be deemed continuous service even if interrupted. Therefore, though s. 25F speaks of continuous service for not less than one year under the. employer, both the conditions are fulfilled if the workman has actually worked for 240 days during a period of 12 calendar months. It is not necessary to read the definition of continuous service in s. 2(eee)\n\ninto s. 25B, because, the fiction converts service of 240 days in a period of the twelve calendar months intn continuous service for one complete year. [451C-E]\n\nThe amendments introduced by the Industrial Disputes (Amendment) Act, 1964 into ss. 25B and 25F only removed the discordance between the unamended sections 25B and 25F (b) and vagueness which existed previously. But neither before the amendments nor after, is uninterrupted service necessary, if the total service is 240 days in a period of 12 calendar months. [ 452D-E]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 43 of 1964.\n\nAppeal by special leave from the award dated August 3, 1962 of the Central Government Industrial Tribunal, Dhanbad in Reference No. 56 of 1961.\n\nB. Sen and I.N. Shroff, for the appellants.\n\nThe respondent did not appear. ;, ; Sfhe Judgment of the Court was delivered by 'ifldayatullah, J. This is an appeal by special leave against the Award dated August 3, 1962, of the Central Government Indus- -··- tria} Tril:>unal Dhanbad, under the Industrial Disputes Act 1947\n\n,! -- 448 ..\n\nDIGWADIH COLLIERY v. WOI\\KME-'< (llidayatuUah, J.) 449\n\nThe appellants are the Employers in relation to Digwadih Col liery and the respondents their workmen. The workmen did not appear in this Court. The dispute was whether the management of the colliery was just'fied in terminating the services of Jaldhar Singh with back wages.\n\nJaldhar Singh was a 'bad!i' workman which means (as defined hy the Standing Orders of the colliery) a person appointed in the post of a permanent employee or probationer who is temporarily absent. He worked as badli in the cafondar years 1959 and 1960 in d; fferent capacities. His employment was, of course, not continuom\n\nand there were six breab of one day to a week in 1959 and eight hreaks of one day to a week in 1960. However, he worked for more\n\nthan 240 days in each calendar year though with these interruptions.\n\nIn January 1961 the colliery terminated Jaldhar Singh's services\n\nwithout notice to him or payment of wages ; n lieu of notice or compensation. A dispute arising, conciliation was attempted but foiled and the reference followed.\n\nBefore the Tribunal the workmen claimed that Jaldhar Singh was a permanent wh'le the Employers contended that he was temporary. The Employers stated that as some of the perma nent staff had become surplus, there was no need of badli workmen and the term'nation of Jaldhar Singh's service was justified.\n\nThe workmen attempted to prove that Jaldhar Singh was permanent from 1960 and produced some documents from which they\n\nasked that this inference be drawn but the Tribunal did not agree.\n\nThe workmen relied in the altcrnat; ve upon s. 25F of the Act be\n\ncause Jaldhar Singh had put in service of 240 days in each of the years and contended that as the Employers had failed to comply with the provisiocs of s. 25F the termination of service was illegal' and unjust'fied. The Employers submitted that s. 25F could apply only if Jaldhar Singh had put in 240 days' continuous service in any of the years 1959 or 1960.\n\nThe service of Jaldhar Singh was admittedly terminated as there was no work for him and not on account of disciplinary action or voluntary retirement, superannuation or ill-health. This\n\nwas thus a case of retrenchment as defined in s. 2(00) of the Act.\n\nSection 25F, which was inserted as part of Chapter VA, with effect from October 24; 1953 by the Industrial Disputes (Amendment)\n\nAct 1953 (43 of 1953) provides:\n\n\"25F. Conditions precedent to retrenchment of workmen.\n\nNo workman employed in any industry who has been in\n\ncont; nuous service for not less than one year under an employer shall be retrenched by that employer until-\n\n(a) the workman has been given one month's notice in\n\nwrting indicating the reasons for retrenchment and\n\nthe period of notice expired, or the workman bas\n\nSUPREME COURT REPORTS [1965] 3 e.c.R,\n\nbeen paid in lieu of such notice, wages for the period A of the notice:\n\nProvided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service;\n\n(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to .fifteen days' average pay for every completed year of\n\nservice or any part thereof in excess of six months; and\n\n(c) notice .in the prescribed manner is served on the appropriate Government.\"\n\nThe section, if it applied, had plainly not been complid with in\n\nrespect of any of the conditions precedent. faldhar Singh, as seen already, had not been given any notice or wages in lieu of notice or paid compensation and no notice had been served on the appro priate Government. The termination of service would, in these circumstances, be illegal. But the Employers pointed out that s. 25F required two conditions: (a) continuous service and (b) service for\n\nnot less than one year, and contended that these conditions were not fulfilled as the service was not continuous but broken.\n\nThey relied on the definition of \"continuous service\" in s. l(eee) which was introduced by the same amending Act:\n\n\"2(eee) continuous service means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a sqike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;\"\n\nThe workmen, on the other hand, relied upon the provisions of s. 25B which read:\n\n\"25B. Definition of one year of continuous service.\n\nFor the purposes of sections 25C and 25F, a workman who, during a period of 12 calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed orie vear of continuous service in the industry.\n\nExplanation.-In computing the number of days on which a workman has actually worked in any industry, the days on which-\n\n{a) he has been laid off under an agreement or as permitted by standing orders made under the Industrial Em ployment (Standing Orders) Act, 1946, or under this Act or under any other law applicable to the industrial establishment, the largest number of days during\n\nDIGWADIH COLLIERY v. WORKMEN (Hidayatullah, J.) 451\n\nwhich he has been so laid-off being taken into account for the purposes of this clause,\n\n(b) he has been on leave with full wages, earned in\n\nprevious year, and\n\n(c) in the case of a female, she has been on maternity\n\nleave; so however that the total period of such maternity leave shall not exceed twelve weeks, shall be included.\"\n\nThe definit'.ons in s. 2 of the Act do not apply if there is any thing repugnant in the subject or context and the question is whether the definition of \"continuous service\" can at all apply in considering s. 25F when what is incant by the expression \"one year of continuous service\" in s. 25F is, by s. 25B specially stated. If s. 25B had not been enacted the contention of the Employers would\n\nhave been unanswerable for the words of s. 25F would then have plainly meant that the service should be for a period of 12 months without interruptions other than those stated in s. 2(eee) itself. But\n\ns. 25B says that for the purpose of s. 25F a workman who, in a period of twelve calendar months has actually worked for not less than 240 days shall be deemed to have completed one year of cQntinuous service. Service for 240 days in a period of twelve calendar\n\nmonths is equal not only to service for a year but is to be deemed continuous service even if interrupted. .Therefore, though s. 25F\n\nspeaks of continuous service for not less than one year under the employer, both conditions are fulfilled if the workman has actually\n\nworked for 240 days during a period of twelve calendar months.\n\nIt is not necess\"ry to read the definition of continuous service into s. 25B because the fiction converts service of 2@ days in a period of twelve calendar mon.ths into continuous service for one complete year.\n\nMr. B. Sen drew our attention to the Indul; trial Disputes <Amendment) Act 1964 which was passed last December. By s. 2(iii) of the amending Act of 1964 clause (eee) of the second sec\n\ntion of the principal Act was omitted and bys. 13, for s. 25B in the princ; pal Act the following was substituted:\n\n\"25B. For the purposes of this Chapter,-\n\n(!) a workman shall be said to be in continuous service\n\nfor a period if he is, for that period, in µninterrupted service, including service which may be intermptei on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;\n\n(2) where a workman is not in continuous service within\n\nthe meaning of clause (!) for a period of one year\n\n452 SUl'llEME COURT REPORTS tl965j 3 3.C, It.\n\n, he shall be deemed o be in continuous service under an employer-\n\n(a) for a period of one year, if the workman, during\n\na period of twelve calendar months preceding the date with reference to which calculation is to\n\nbe made, has actually worked under the employer for not Jess than-\n\n(i) one hundred and ninety days in the case of\n\na workman employed below ground in a mine; and\n\n(ii) two hundred and forty days, in any other\n\ncase;\n\nThe Explanation to s. 25B is the same, mutatis mutandis as before.\n\nMr. Sen contended that the change in the Jaw brought out his contention. We do not agree. The amended s. 25B only consolidates the previous, sections 25B and 2(eee) in one place, adding some other matters which are not relevant to the present purpose, but the purport of the new provisions is not different. In fact the amendment of s. 25F of the principal Act by substituting in cl. (bi the words \"for every completed year of continuous service\" for the words \"for every completed year of service\" now removes a discordance between the unamended section 25B and the unamended\n\ncl. (b) of s. 25B. Neither before these several changes nor after is uninterrupted service necessary if the total service is 240 days in\n\na period of calendar months. The only change in the new Act is that this service must be during a period of twelve calendar months preceding the date with reference to which calculation is to be made. The last amendment now removes a vagueness which. existed in the unamended s. 25B.\n\nWe accordingly hoH that the decision under appeal is correct. rhe appeal fails' and is dismissed. ·\n\nAppeal dismis, sed. ·", "total_entities": 51, "entities": [{"text": "EMPJ, OYERS IN RELATION TO DIGW ADIB COLLIERY", "label": "PETITIONER", "start_char": 0, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "EMPLOYERS IN RELATION TO DIGWADIH COLLIERY", "offset_not_found": false}}, {"text": "THEIR WORKMEN", "label": "RESPONDENT", "start_char": 52, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "THEIR WORKMEN", "offset_not_found": false}}, {"text": "March 22, 1965", "label": "DATE", "start_char": 67, "end_char": 81, "source": "ner", "metadata": {"in_sentence": "EMPJ, OYERS IN RELATION TO DIGW ADIB COLLIERY A v.\n\nTHEIR WORKMEN\n\nMarch 22, 1965\n\n[P. B. GAJENDRAGADKAR, C. J., K. N. W ANCHOO.:"}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 84, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. W ANCHOO.: M. HIDAYATULLAH", "label": "JUDGE", "start_char": 113, "end_char": 145, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "ss. 25B and 25F", "label": "PROVISION", "start_char": 210, "end_char": 225, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 609, "end_char": 615, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 623, "end_char": 652, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 25B", "label": "PROVISION", "start_char": 865, "end_char": 876, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 907, "end_char": 913, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 1250, "end_char": 1256, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "s. 2(eee)", "label": "PROVISION", "start_char": 1523, "end_char": 1532, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "s. 25B", "label": "PROVISION", "start_char": 1539, "end_char": 1545, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "ss. 25B and 25F", "label": "PROVISION", "start_char": 1776, "end_char": 1791, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 25B and 25F", "label": "PROVISION", "start_char": 1843, "end_char": 1863, "source": "regex", "metadata": {"statute": null}}, {"text": "B. Sen", "label": "OTHER_PERSON", "start_char": 2273, "end_char": 2279, "source": "ner", "metadata": {"in_sentence": "B. Sen and I.N. Shroff, for the appellants."}}, {"text": "I.N. Shroff", "label": "OTHER_PERSON", "start_char": 2284, "end_char": 2295, "source": "ner", "metadata": {"in_sentence": "B. Sen and I.N. Shroff, for the appellants."}}, {"text": "ifldayatullah", "label": "JUDGE", "start_char": 2399, "end_char": 2412, "source": "ner", "metadata": {"in_sentence": "Sfhe Judgment of the Court was delivered by 'ifldayatullah, J. This is an appeal by special leave against the Award dated August 3, 1962, of the Central Government Indus- -··- tria} Tril:>unal Dhanbad, under the Industrial Disputes Act 1947\n\n,! --"}}, {"text": "Industrial Disputes Act 1947", "label": "STATUTE", "start_char": 2566, "end_char": 2594, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Digwadih Col liery", "label": "ORG", "start_char": 2714, "end_char": 2732, "source": "ner", "metadata": {"in_sentence": "448 ..\n\nDIGWADIH COLLIERY v. WOI\\KME-'< (llidayatuUah, J.) 449\n\nThe appellants are the Employers in relation to Digwadih Col liery and the respondents their workmen."}}, {"text": "Jaldhar Singh", "label": "OTHER_PERSON", "start_char": 2910, "end_char": 2923, "source": "ner", "metadata": {"in_sentence": "The dispute was whether the management of the colliery was just'fied in terminating the services of Jaldhar Singh with back wages.", "canonical_name": "Jaldhar Singh"}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 4231, "end_char": 4237, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 4405, "end_char": 4411, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 4498, "end_char": 4504, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(00)", "label": "PROVISION", "start_char": 4847, "end_char": 4855, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 25F", "label": "PROVISION", "start_char": 4869, "end_char": 4880, "source": "regex", "metadata": {"statute": null}}, {"text": "faldhar Singh", "label": "OTHER_PERSON", "start_char": 6070, "end_char": 6083, "source": "ner", "metadata": {"in_sentence": "faldhar Singh, as seen already, had not been given any notice or wages in lieu of notice or paid compensation and no notice had been served on the appro priate Government.", "canonical_name": "Jaldhar Singh"}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 6347, "end_char": 6353, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25B", "label": "PROVISION", "start_char": 7023, "end_char": 7029, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 25C and 25F", "label": "PROVISION", "start_char": 7116, "end_char": 7136, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 8150, "end_char": 8154, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 8336, "end_char": 8342, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 8417, "end_char": 8423, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25B", "label": "PROVISION", "start_char": 8431, "end_char": 8437, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25B", "label": "PROVISION", "start_char": 8459, "end_char": 8465, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 8566, "end_char": 8572, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(eee)", "label": "PROVISION", "start_char": 8705, "end_char": 8714, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25B", "label": "PROVISION", "start_char": 8728, "end_char": 8734, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 8764, "end_char": 8770, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 9116, "end_char": 9122, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25B", "label": "PROVISION", "start_char": 9393, "end_char": 9399, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(iii)", "label": "PROVISION", "start_char": 9650, "end_char": 9659, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25B", "label": "PROVISION", "start_char": 9775, "end_char": 9781, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25B", "label": "PROVISION", "start_char": 10843, "end_char": 10849, "source": "regex", "metadata": {"statute": null}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 10896, "end_char": 10899, "source": "ner", "metadata": {"in_sentence": "Mr. Sen contended that the change in the Jaw brought out his contention."}}, {"text": "s. 25B", "label": "PROVISION", "start_char": 10994, "end_char": 11000, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 25B and 2(eee)", "label": "PROVISION", "start_char": 11033, "end_char": 11056, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 11225, "end_char": 11231, "source": "regex", "metadata": {"statute": null}}, {"text": "section 25B", "label": "PROVISION", "start_char": 11439, "end_char": 11450, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25B", "label": "PROVISION", "start_char": 11481, "end_char": 11487, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25B", "label": "PROVISION", "start_char": 11884, "end_char": 11890, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_453_460_EN", "year": 1965, "text": "CALCUTTA DOCK LABOUR BOARD\n\n11.\n\nJAFFAR IMAM AND OTHERS\n\nMarch 22, 1965\n\n[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO AND\n\nV. RAMASWAMI, JJ.] Natural Justice-Detention under Preventive Detention Act- Termination of service based on such detention-Validity.\n\nThe respondents had been detained u\"'der the Preventive Detention Act. On their release theiir employer-the appellant-Board, commenced disciplinary proceedings and show cause notices why their services should not be terminated on the principal ground that they had been detained for acts prejudicial to the .maintenance of public order. Not being satisfied with their answers, the appellant terminated their servi9es. The respondents' appeals to the Chairman of the appellant-Board were dismissed. Thereupon, the respondents\n\ntiled writ petitions in the High Court, challenging the orders on the grounds that reasonable opportunity was not given to them, and that even the relevant statutory provisions had been contravened. The petitions were dismissed, but were allowed by a Division Bench on appeal.\n\nIn the apveal to this Court, HELD: If the appellants wanted to take disciplinary action against respondents on the ground that they were guilty of misconduct, it was absolutely essential that the appellant should have held a proper enquiry instead of equating the detention to a conviction by 2riminal Court. At this enquiry, reasonable opportunity should have been given to the respondents to show cause and before reaching its conclusion, the appellant was bound to lead evidence against the respondents, and give them a reasonable chance to test the evidence in accordance with the rules of natural justice. Therefore, the Court of appeal was right in taking the view that in the departmental enquiry which the appellant held against the respondents it was not open to the appellant to act on suspicion, and inasmuch as the appellant's decision was based only upon the detention orders and nothing else, there could be little doubt that the said conclusion was based on suspicion and nothing more. [ 459E-H]\n\nCase law referred to : G An obligation to hold such an enquiry is also imposed on the employer by cl. 36(3) of the Calcutta Dock Workers (Regulation of Employment) Scheme, 1951, and cl. 45(6) of the Scheme of- 1956.\n\n[459G]\n\nCIVIL APPELLATE JurusmCTION: Civil Appeals Nos. 569 to 571 of 1964.\n\nB Appeals from the judgment and orders dated August 4, 1961 of the Calcutta High Court in Appeals from Original Orders Nos.\n\n22. 29 and 30 of 1959.\n\nB. Sen and S. N. Mukheriee, for the appellants.\n\nK. R. Chaudhuri, for the respondents.\n\nThe Judgment of the Court was delivered by Gajendragadkar,' C. J. These three appeals arise out of writ petitions filed by the three respondents, Jaffar Bnndaban Nayak and Jambu Patra, respectively on the Ongmal Side of the Calcutta High Court against the appellant, the Calcutta Dock Labour Board. Each one of the respondents challenged the validity of t)ie order passed by the appellant, terminating his employment as a registered dock worker with the appellant, on the ground that the said order was illegal and inoperative. The basis on which the impugned orders were challenged was that the enquiry which had been held before passing the said orders had not afforded to the respondents a reasonable opportunity to defend themselves and as such, the principles of natural justice had not been followed and even the relevant statutory provisions had been contravened. The writ petitions filed by Jaffar Imam and Jambu Patra were heard by.\n\nSinha, J., whereas the writ petition filed by Bridaban Nayak was heard by P.B. Mukherji, J. The learned single Judges who heard these respective writ petitions substantially took the same view and rejected the contentions raised by the respondents. In the result, the writ petitions were dismissed.\n\nAgainst these decisions, the respondents preferred appeals befol'e a Division Bench of the Calcutta High Court. The Division Bench has allowed the appeals and has issued an appropriate writ directing that the impugned orders by which the employment of the respondents was terminated by the appellant should be quashed.\n\nThe appellant then applied for and obtained a certificate from the said High Court and it is with the certificate thus granted to it that it has come to this Court in appeal.\n\nIt appears that the three respondents were Dock workers attached to the Port of Calcutta and were registered in the Reserve Pool. On August 12, 1955, the Commissioner of Police, Calcutta, passed an order under s. 3(1)(a)(ii) of the Preventive Detention Act,\n\n1950 (No. 4 of 1950) (hereinafter called 'the Act'} directing that the respondents should be detained, as he was satisfied that they were guilty of violent and riotous behaviour and had committed assault and as such, it was necessary to detain them with a view to preventing them from acting in any manner prejudicial to the maintenance of public order. The respondents then made representaticns to the State Government under s. 7 of the Act alleging that the grounds set out in the detention orders passed against them were untrue and that their detention was in fact malafide.\n\nOn receipt of these representations, they were forwarded by the State Government to the Advisory Board under s. 9. It is wellknown that the Act had made a provision for referring orders of detention to the Advisory Boards constituted under s. 8. When the\n\nAdviso_ry received the representations. made by ihe respon- . dents, .1t took mto a?count the material placed before it, considered\n\nthe said representat10ns, and submitted its report within the time\n\nOALCUTr1. DOCK LABOUR llOAIID v. JAFFAII IMAM (GajendragaJkar, O.J.) 456\n\nspecified by s. 10(!). Since the report was against the respondents, their detention was confirmed by the State Government under s. 11 of the Act and in consequence, their detention was continued for about 11 months.\n\nAfter they were released from detention, they applied for allocation to registered dock employment, but instead of passing orders in favour of such allocation, the appellant commenced disciplinary proceedings against them and not; ces were served on them to show cause why their services should not be terminated on 14 days' notice in terms of clause 36(2)(d) of the Calcutta Dock Workers (Regulation of Employment) Scheme, 1951 (hereinafter called \"the Scheme\"). The principal ground in these notices was that the respondents had been detained for acts prejudicial to the maintenance of public order and as such, their services were liable to be terminated. Accordingly, the respondents showed cause against the proposed order, but the Deputy Cha 'rman of the appellant was not satisfied with their representations, and so, he terminated their services on December 17, 1956. While doing so, each one of them was given 14 days' wages in lieu of notice for the equivalent period. The respondents challenged this decision by preferring appeals to the Chairman of the appellant, but their appeals did not succeed and the orders passed by the Deputy Chairman were confirmed on April 4, 1957. It is against these appellate orders that the respondents filed the three writ petitions which have given rise to the present appeals.\n\nIt is plain that both the Deputy Chairman who passed the impugned orders against the respondents, and the Chairman of the appellant who heard the respondents' appeals, have taken the v:ew that the orders of detention passed against the respohdents, in substance, amounted to orders of conviction and as such, the appellant was justified in terminating the respondents' employment. Both the original as well as the appellate orders nnequivocally state that having regard to the fact that the respondents had been detained, and that their detention was confirmed and continued after consultation with the Advisory Board, it is clear that they were guilty of the conduct alleged against them in the orders. of detention. In\n\nthat connection. it was pointed out that the Advisory Board consisted of persons of eminent status and undoubted impartiality, and so, the fact that the representations made by the respondents were\n\nnot accepted by the Advisory Board and that their detention was confirmed by the State Government in consultation with the Advisory Board, was enough to justify the appellant in terminating the employment of the respondents.\n\nThe two learned single Judges who heard the respective writ petitions substantially took the same view. Sinha, J. has observed that the respondents had a hearing before a very responsible body and the report that went against them showed that the detain!ng authority was justified in holding that the respondents were gmlty\n\nof the charges and had thus. committed acts of ii1discipline and A misconduct within the meaning of the Scheme. In fact, Sinha J., felt no hesitation in holding that the appellant would be entitled to take disciplinary action against the respondents upon suspicion, and he held that the appellant's susp'cion against the respondent5 was more than justified by the fact that the detention of the respondents received the approval of the Advisory Board. P.B. Mukherjee, J., B also approached the question on the same lines. He held that the appellant was entitled to take into consideration the fact that the respondents had been detained, that the statutory Advisory Board had considered the representat'ons of the respondents and had not accepted them, and that the grounds of detention showed that the detaining authority was satisfied that the respondents were guilty C of the conduct which was prejudicial to the maintenance of public order. \"In the premises\", sa; d the learned Judge, \"I am satisfied that the order terminating Brindaban Nayak's services was justified\".\n\nThe Conrt of Appeal which heard the three appeals filed by the respondents against the respective orders passed by the two learned single Judges has disagreed with the approach adopted by them in d; smissing the respondents' writ petitions. It has held that in acting merely on suspicion based on the fact that the respondents had been detained, the appellant had acted illegally and that made the impugned orders invalid and inoperative. Mr. B. Sen for the appellant contends that the view taken by the Court of Appeal is erroneous in law.\n\nBefore dealing with this point, it would be useful to refer to the relevant provisions of the Scheme. The Scheme has been made\n\nby the Central Government in exercise of the powers conferred on F it by sub-s. (I) of s. 4 of the Dock Workers (Regulation of Employment) Act, 1948 (IX of 1948). Clause 3(n) defines a \"reserve pool\" as mean'ng a pool of registered dock workers who are available for work, and who are not, for the time being, in the employmerrt of a registered employer as a monthly worker. The three respondents belong to this category of workers. Clause 23 of the Scheme guaran- G tees the specified minimum wages to workers on the Reserve Pool Register. Clause 29 prescribes the obligations of registered dock wo.rkers, whereas clause 30 provides for the obligations of registered employers. Clause 31 prescribes restriction on employment, Clause 33 deals with wages, allowances and other conditions of service, whereas clause 34 is concerned with pay in respect of un- H employment or underemployment. Clause 36 deals with. disciplinary procedure and it is with this clause that we are directly concerned in these appeals. Clause 36(2) provides that a registered dock worker in the Reserve Pool who is avaHable for work and fails to comp!.\\'. w!th. ai:iy of the_ provisions of the Scheme, or commits any act md1sc1plme or ma.\\'. be_ reported in writing to the Special Officer, who may, after mvest1gatmg the matter and without prejudice to in addition to the powers conferred by clause 35,\n\nCALCUTTA DOCK LABOUR BOARD v. JAFFA& IMAM(Gajeridragadkar, C.J.) 457\n\nA take any of the five steps indicated by sub-clauses (a) to (e) as regards that worker. Sub-clause (e) refers to dismissal of the guilty workman. Clause 36(3) lays down that before any action is taken under sub-cl. (!) or (2), the person concerned shall be given an opportunity to show cause why the proposed action should not be taken against him. Clause 36A provides for the disciplinary powers B of the Chairman of the Board. Clause 37 deals with termination of employment. Clauses 38 and 39 provide for appeals. That, in brief, is the nature of the Scheme. This Scheme was substituted by another Scheme in 1956. Clause 45(6) of !h's new Scheme corresponds to\n\ncl. 36(3) of the earlier Scheme. In other words, the relevant clauses under both the Schemes require that before any disciplinary action C is taken against a worker, an opportunity must be given to him to show cause why the proposed action should not be taken against him.\n\nThere can be no doubt that when the appellant purports to exercise its authority to terminate the employment of its employees D such as the respondents in the present case, it is exercising authority and power of a quasi-judicial character. In cases where a statutory body or authority is empowered to terminate the employment of its employees, the said authority or body cannot be heard to say that it will exercise its powers without due regard to the principles of natural justice. The nature or the character of the proceedings E which such a statutory authority or body must adopt in exercising its disciplinary power for the purpose of terminating the employment of its employees, has been recently considered by this Court in several cases, vide the Associated Cement Companies Ltd.,\n\nv. P. N. Sharma & Another,(') and Lala Shri Bhagwan and Another\n\nv. Shri Ram Chand & Anr.,(') and it has been held that in ascertain F ing the nature of such proceedings with a view to decide whether the principles of natural justice ought to be followed or not, the tests laid down by Lord Reid in Ridge v. Baldwin & Others(') are relevant. In view of these decisions, Mr. Sen has not disputed this position and we think, rightly. ·\n\nG Therefore, the question which falls to be considered is whether the appellant can successfully contend that it was justified in acting upon suspicion against the respondents, the basis for the suspicion being that they were detained by orders passed by the appropriate authorities and that the said orders were confirmed by the State Government after consultation with the Advisory Board. It is hard- H ly necessary to emphasise that one of the basic postulates of the rule of law as administered in a democratic country governed by a written Constitution, is that no citizen shall lose his liberty without\n\na fair and proper trial according to law; and legal and proper trial\n\n(1) [1965] 2 S.C.R. 366.\n\n(') [1965] 3 R.C.R. 218.\n\n(') L.R. [J9C.>] A. C. 40.\n\n8UPRE?4E COURT REPORTS\n\n(1965) .3 S.O • .B.\n\naccording to Jaw inevitably ineans, inter alia, rl trial held ill accor-\n\nJI; dance with the relevant statuiory provisions or in their absence, consistc:1tly. with the principles of natural justice. The Act is an exception to this rule and in that sense, it am\"mints to. an encroachment on the I'berty of the citizen. But the said Act has been held to be constitutionally valid, and so far as detention of a citizen effecJed by an order validly passed bY. the appropriate authorities in exercise B of the powers confer.red on , th.em is concerned, its validity can be challenged only on grounds permissible in the light of the relevant provisions' pf the Act. or on the ground of malafides. Whenever detenus move the High Courts or the Supreme Court challenging the validity of the orders\"of detention passt<CI against them, the scope of the. enquiry which can be legitimately held in such pro- C ceeaings is thus circumscribed and limited. In such proceedmgs, Courts cannot entertain the plea that the of liberty suffered. by - the detenu by his detention is the result of mere suspicions entertained by the detaining authorities, provided the detaining authorities act bona fide; their subjective judgment about the prejudicial character of the activities or conduct of the citizen sought to be D detained, is not open to challenge or scrutiny in ordinary course, and in that sense, it may have to be conceded that the.loss of liberty has to be suffered by a citizen if he is detained validly under the relevant provisions of the Act. Thus far, there is no dispute.\n\nA But the question wIµch we have to consider in the present ap- E peals is of a different character. A citizen may suffer loss of liberty if he is detained validly under the Act; even so, does it follow that the detenion order which deprived the citizen of his liberty should also serve indirectly but effectively the purpose of depriving the said citizen of his livelihood?· If the view taken by the appellanrs officers who tried the diss:iplinary proceedings. is accepted, it would F follow that if a citizen is detained and his detention is confirmed by the State Government, his services .would be terminated merely and splely by reason of such detention. In our opinion, such a position is , obviously and demonstrably inconsistent with the elementary 'concept of the rule of law on which our constitution is founded.\n\nWhen a citizen is cjetained, he may not succeed in .challenging the G order of detention passed against liim, unless he is able to adduce grounds permissible under the Act. But we are:-unable to agree with Mr. Sen's argument that after. such a citizen is released from detention, an 'employer, like the appellant, can immediately start disci-. plinary proceedings against him and tell him in substance that he was detained for prejudicial activities which amount to misconduct H and that the detention order was confirmed by the State Government after consultation with the Advisory Board, and so, he is liable to be dismissed from his employment. It. is obvious that the\n\nAdvisory Board does not try question about the propriety or validity of the citizen's detention as a Court-of law would; indeed, its function is limited to consider the relevant material p)aced before it and the received from the detenu, and then submit -\n\nI 1\n\n0.U.CUTl'A DOCK LABOUR BOARD t•, JAFFAR IMAM (Gajendragadkar, C.J.) 459\n\nits report to the State Government within the time specified by s. l 0(1) of the Act. It is not disputed that the Advisory Board considers evidence against the detenu which has not been tested in the normal way by cross-examination; its decision is essentially different in character from a judicial or quasi-judicial decision. In some cases, a detenu may be given a hearing; but such a hearing is often, if not always, likely to be ineffective, because the detenu is deprived of an opportunity to cross examine the evidence on which. the detaining authorities rely and may not be able to adduce evidence before the Advisory Board to rebut the allegations made against him.\n\nHaving regard to the nature of the enquiry which the Advisory Board is authorised or permitted to hold before expressing its approval to the detention of a detenu, it would, we think, be entirely erroneous and wholly unsafe to treat the opinion expressed by the Advisory Board as amounting to a judgment of a criminal The main infirmity which has vitiated the impugned orders arises from the fact that the said orders equate detention of a detenu with his conviction by a criminal court. We are, therefore, satisfied that the Court of Appeal was right in taking the view that in a departmental enquiry which the appellant held against the respondents it was not open to the appellant to act on suspicion, and inasmuch as the appellant's decision is clearly based upon tjie detention orders and nothing else, there can be little doubt that, in substance, the said conclusion is based on suspicion and nothing more.\n\nEven in regard to its employees who may have been detained under the Act, if after their release the appellant wanted to take disciplinary action against them on the ground that they were guilty of misconduct, it was absolutely essential that the appellant should have held a proper enquiry. At this enquiry, reasonable opportunity should have been given to the respondents to show cause and before reaching its conclusion, the appellant was bound to lead evidence against the respondents, give them a reasonable chance to test the said evidence, allow them liberty to lead evidence in defence, and then come to a decision of its own. Such an enquiry is prescribed by the requirements of natural justice and an obligation to hold such an enquiry is also imposed on the appellant by clause\n\n36(3) of the Scheme of 1951 and cl. 45(6) of the Scheme of 1956.\n\nIt that in the present enquiry, the respondents were not given notice of any specific allegations made against them, and the record clearly shows that no evidence was led in the enquiry at all.\n\nIt is only the detention orders that were apparently produced and it is on the detention orders alone that the whole proceedings rest and the impugned orders are founded. That being so, we feel no hesitation in holding that the Court of Appeal was pedectly right in setting aside the respect!ve orders passed by the two learned single Judges when they dismissed the three writ petitions filed by the respondents.\n\nMr. Sen strenuously contended that if we were to insist upon a proper enquiry being held against the respondents before terminating their services, the appellant would find it impossible to take A any disciplinary action against them. He urges that the respondents\n\nare bullies and they have terrorised their co-workers to such an extent that no one would be willing or prepared to give evidence against them in a departmental enquiry. Even assuming that Mr. Sen is right that the appellant would experience difficulty in bringing home its charges to the respondents, we do not see how such a fear B could justify the approach adopted by the enquiry officer in the present case. What would happen if a desperate character who is m the employment of the appellant had not been detained under the Act? In such a case, before -the appellant can validly dismiss such an employee, it will have to hold a proper enquiry. The circumstance that the respondents happened to be detained can afford no C justification for not complying with the relevant statutory provision and not following the principles of natural justice. Any attempt to short-circuit the procedure based on considerations of natural justice must, we think, be discouraged if the rule of law has to prevaif,. and in dealing with the question of the liberty and livelihood of a citizen, considerations of expediency which are not permitted by D law can have no relevance whatever.\n\nThe result is, the appeals fail and are dismissed with costs.\n\nAppeals dismissed.", "total_entities": 63, "entities": [{"text": "CALCUTTA DOCK LABOUR BOARD", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "CALCUTTA DOCK LABOUR BOARD", "offset_not_found": false}}, {"text": "JAFFAR IMAM AND OTHERS", "label": "RESPONDENT", "start_char": 33, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "JAFFAR IMAM AND OTHERS", "offset_not_found": false}}, {"text": "March 22, 1965", "label": "DATE", "start_char": 57, "end_char": 71, "source": "ner", "metadata": {"in_sentence": "JAFFAR IMAM AND OTHERS\n\nMarch 22, 1965\n\n[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO AND\n\nV. RAMASWAMI, JJ.]"}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 74, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "P. B. GAJENDRAGADKAR", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 103, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 122, "end_char": 139, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Natural Justice-Detention under Preventive Detention Act", "label": "STATUTE", "start_char": 141, "end_char": 197, "source": "regex", "metadata": {}}, {"text": "cl. 36(3)", "label": "PROVISION", "start_char": 2171, "end_char": 2180, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 45(6)", "label": "PROVISION", "start_char": 2255, "end_char": 2264, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 2434, "end_char": 2453, "source": "ner", "metadata": {"in_sentence": "B Appeals from the judgment and orders dated August 4, 1961 of the Calcutta High Court in Appeals from Original Orders Nos."}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 2516, "end_char": 2522, "source": "ner", "metadata": {"in_sentence": "B. Sen and S. N. Mukheriee, for the appellants.", "canonical_name": "B. Sen"}}, {"text": "S. N. Mukheriee", "label": "LAWYER", "start_char": 2527, "end_char": 2542, "source": "ner", "metadata": {"in_sentence": "B. Sen and S. N. Mukheriee, for the appellants."}}, {"text": "K. R. Chaudhuri", "label": "LAWYER", "start_char": 2565, "end_char": 2580, "source": "ner", "metadata": {"in_sentence": "K. R. Chaudhuri, for the respondents."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 2647, "end_char": 2661, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Gajendragadkar,' C. J. These three appeals arise out of writ petitions filed by the three respondents, Jaffar Bnndaban Nayak and Jambu Patra, respectively on the Ongmal Side of the Calcutta High Court against the appellant, the Calcutta Dock Labour Board.", "canonical_name": "P. B. GAJENDRAGADKAR"}}, {"text": "Jaffar Bnndaban Nayak", "label": "LAWYER", "start_char": 2750, "end_char": 2771, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Gajendragadkar,' C. J. These three appeals arise out of writ petitions filed by the three respondents, Jaffar Bnndaban Nayak and Jambu Patra, respectively on the Ongmal Side of the Calcutta High Court against the appellant, the Calcutta Dock Labour Board."}}, {"text": "Jambu Patra", "label": "LAWYER", "start_char": 2776, "end_char": 2787, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Gajendragadkar,' C. J. These three appeals arise out of writ petitions filed by the three respondents, Jaffar Bnndaban Nayak and Jambu Patra, respectively on the Ongmal Side of the Calcutta High Court against the appellant, the Calcutta Dock Labour Board.", "canonical_name": "Jambu Patra"}}, {"text": "Calcutta Dock Labour Board", "label": "ORG", "start_char": 2875, "end_char": 2901, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Gajendragadkar,' C. J. These three appeals arise out of writ petitions filed by the three respondents, Jaffar Bnndaban Nayak and Jambu Patra, respectively on the Ongmal Side of the Calcutta High Court against the appellant, the Calcutta Dock Labour Board."}}, {"text": "Jaffar Imam", "label": "PETITIONER", "start_char": 3503, "end_char": 3514, "source": "ner", "metadata": {"in_sentence": "The writ petitions filed by Jaffar Imam and Jambu Patra were heard by.", "canonical_name": "JAFFAR IMAM AND OTHERS"}}, {"text": "Jambu Patra", "label": "LAWYER", "start_char": 3519, "end_char": 3530, "source": "ner", "metadata": {"in_sentence": "The writ petitions filed by Jaffar Imam and Jambu Patra were heard by.", "canonical_name": "Jambu Patra"}}, {"text": "Sinha", "label": "JUDGE", "start_char": 3547, "end_char": 3552, "source": "ner", "metadata": {"in_sentence": "Sinha, J., whereas the writ petition filed by Bridaban Nayak was heard by P.B. Mukherji, J. The learned single Judges who heard these respective writ petitions substantially took the same view and rejected the contentions raised by the respondents."}}, {"text": "Bridaban Nayak", "label": "OTHER_PERSON", "start_char": 3593, "end_char": 3607, "source": "ner", "metadata": {"in_sentence": "Sinha, J., whereas the writ petition filed by Bridaban Nayak was heard by P.B. Mukherji, J. The learned single Judges who heard these respective writ petitions substantially took the same view and rejected the contentions raised by the respondents.", "canonical_name": "Brindaban Nayak"}}, {"text": "P.B. Mukherji", "label": "JUDGE", "start_char": 3621, "end_char": 3634, "source": "ner", "metadata": {"in_sentence": "Sinha, J., whereas the writ petition filed by Bridaban Nayak was heard by P.B. Mukherji, J. The learned single Judges who heard these respective writ petitions substantially took the same view and rejected the contentions raised by the respondents.", "canonical_name": "P.B. Mukherjee"}}, {"text": "Calcutta", "label": "GPE", "start_char": 4423, "end_char": 4431, "source": "ner", "metadata": {"in_sentence": "It appears that the three respondents were Dock workers attached to the Port of Calcutta and were registered in the Reserve Pool."}}, {"text": "August 12, 1955", "label": "DATE", "start_char": 4476, "end_char": 4491, "source": "ner", "metadata": {"in_sentence": "On August 12, 1955, the Commissioner of Police, Calcutta, passed an order under s. 3(1)(a)(ii) of the Preventive Detention Act,\n\n1950 (No."}}, {"text": "s. 3(1)(a)(ii)", "label": "PROVISION", "start_char": 4553, "end_char": 4567, "source": "regex", "metadata": {"statute": null}}, {"text": "Preventive Detention Act", "label": "STATUTE", "start_char": 4575, "end_char": 4599, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 5028, "end_char": 5032, "source": "regex", "metadata": {"linked_statute_text": "the Preventive Detention Act,\n\n1950", "statute": "the Preventive Detention Act,\n\n1950"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 5291, "end_char": 5295, "source": "regex", "metadata": {"linked_statute_text": "the Preventive Detention Act,\n\n1950", "statute": "the Preventive Detention Act,\n\n1950"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 5422, "end_char": 5426, "source": "regex", "metadata": {"linked_statute_text": "the Preventive Detention Act,\n\n1950", "statute": "the Preventive Detention Act,\n\n1950"}}, {"text": "s. 10(!)", "label": "PROVISION", "start_char": 5726, "end_char": 5734, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 5842, "end_char": 5847, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 36(2)(d)", "label": "PROVISION", "start_char": 6275, "end_char": 6290, "source": "regex", "metadata": {"statute": null}}, {"text": "December 17, 1956", "label": "DATE", "start_char": 6788, "end_char": 6805, "source": "ner", "metadata": {"in_sentence": "Accordingly, the respondents showed cause against the proposed order, but the Deputy Cha 'rman of the appellant was not satisfied with their representations, and so, he terminated their services on December 17, 1956."}}, {"text": "April 4, 1957", "label": "DATE", "start_char": 7104, "end_char": 7117, "source": "ner", "metadata": {"in_sentence": "The respondents challenged this decision by preferring appeals to the Chairman of the appellant, but their appeals did not succeed and the orders passed by the Deputy Chairman were confirmed on April 4, 1957."}}, {"text": "P.B. Mukherjee", "label": "JUDGE", "start_char": 9179, "end_char": 9193, "source": "ner", "metadata": {"in_sentence": "P.B. Mukherjee, J., B also approached the question on the same lines.", "canonical_name": "P.B. Mukherjee"}}, {"text": "Brindaban Nayak", "label": "OTHER_PERSON", "start_char": 9759, "end_char": 9774, "source": "ner", "metadata": {"in_sentence": "In the premises\", sa; d the learned Judge, \"I am satisfied that the order terminating Brindaban Nayak's services was justified\".", "canonical_name": "Brindaban Nayak"}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 10246, "end_char": 10252, "source": "ner", "metadata": {"in_sentence": "Mr. B. Sen for the appellant contends that the view taken by the Court of Appeal is erroneous in law.", "canonical_name": "B. Sen"}}, {"text": "Central Government", "label": "ORG", "start_char": 10480, "end_char": 10498, "source": "ner", "metadata": {"in_sentence": "The Scheme has been made\n\nby the Central Government in exercise of the powers conferred on F it by sub-s. (I) of s. 4 of the Dock Workers (Regulation of Employment) Act, 1948 (IX of 1948)."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 10560, "end_char": 10564, "source": "regex", "metadata": {"statute": null}}, {"text": "Dock Workers (Regulation of Employment) Act, 1948", "label": "STATUTE", "start_char": 10572, "end_char": 10621, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Clause 3(n)", "label": "PROVISION", "start_char": 10636, "end_char": 10647, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 23", "label": "PROVISION", "start_char": 10906, "end_char": 10915, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 29", "label": "PROVISION", "start_char": 11014, "end_char": 11023, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 30", "label": "PROVISION", "start_char": 11088, "end_char": 11097, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 31", "label": "PROVISION", "start_char": 11152, "end_char": 11161, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 33", "label": "PROVISION", "start_char": 11200, "end_char": 11209, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 34", "label": "PROVISION", "start_char": 11280, "end_char": 11289, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 36", "label": "PROVISION", "start_char": 11363, "end_char": 11372, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 36(2)", "label": "PROVISION", "start_char": 11484, "end_char": 11496, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 35", "label": "PROVISION", "start_char": 11840, "end_char": 11849, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 36(3)", "label": "PROVISION", "start_char": 12069, "end_char": 12081, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 36A", "label": "PROVISION", "start_char": 12272, "end_char": 12282, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 37", "label": "PROVISION", "start_char": 12352, "end_char": 12361, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 45(6)", "label": "PROVISION", "start_char": 12539, "end_char": 12551, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 36(3)", "label": "PROVISION", "start_char": 12587, "end_char": 12596, "source": "regex", "metadata": {"statute": null}}, {"text": "Reid", "label": "OTHER_PERSON", "start_char": 13944, "end_char": 13948, "source": "ner", "metadata": {"in_sentence": "and it has been held that in ascertain F ing the nature of such proceedings with a view to decide whether the principles of natural justice ought to be followed or not, the tests laid down by Lord Reid in Ridge v. Baldwin & Others(') are relevant."}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 14027, "end_char": 14030, "source": "ner", "metadata": {"in_sentence": "In view of these decisions, Mr. Sen has not disputed this position and we think, rightly. ·"}}, {"text": "[1965] 2 S.C.R. 366", "label": "CASE_CITATION", "start_char": 14772, "end_char": 14791, "source": "regex", "metadata": {}}, {"text": "Supreme Court", "label": "COURT", "start_char": 15629, "end_char": 15642, "source": "ner", "metadata": {"in_sentence": "Whenever detenus move the High Courts or the Supreme Court challenging the validity of the orders\"of detention passt<CI against them, the scope of the."}}, {"text": "0.U.CUTl'A DOCK LABOUR BOARD", "label": "RESPONDENT", "start_char": 18221, "end_char": 18249, "source": "ner", "metadata": {"in_sentence": "is obvious that the\n\nAdvisory Board does not try question about the propriety or validity of the citizen's detention as a Court-of law would; indeed, its function is limited to consider the relevant material p)aced before it and the received from the detenu, and then submit -\n\nI 1\n\n0.U.CUTl'A DOCK LABOUR BOARD t•, JAFFAR IMAM (Gajendragadkar, C.J.) 459\n\nits report to the State Government within the time specified by s. l 0(1) of the Act."}}, {"text": "JAFFAR IMAM", "label": "JUDGE", "start_char": 18254, "end_char": 18265, "source": "ner", "metadata": {"in_sentence": "is obvious that the\n\nAdvisory Board does not try question about the propriety or validity of the citizen's detention as a Court-of law would; indeed, its function is limited to consider the relevant material p)aced before it and the received from the detenu, and then submit -\n\nI 1\n\n0.U.CUTl'A DOCK LABOUR BOARD t•, JAFFAR IMAM (Gajendragadkar, C.J.) 459\n\nits report to the State Government within the time specified by s. l 0(1) of the Act.", "canonical_name": "JAFFAR IMAM AND OTHERS"}}, {"text": "clause\n\n36(3)", "label": "PROVISION", "start_char": 20666, "end_char": 20679, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 45(6)", "label": "PROVISION", "start_char": 20706, "end_char": 20715, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_461_466_EN", "year": 1965, "text": "STATE OF MAHARASHTRA\n\nMOHANLAL DEVICHAND SHAH\n\nMarch 23, 1965\n\n[K. N. WANCHOO, J. R. MUDHOLKAR ANDS. M. SIKRI, JJ.]\n\nMinimum Wages Act, 1948 (11 of 1948), s. 2(b) Part I Entry 8-Stone breaking or stone-crushing in a quarry-Jur1sd1ctwn whether of Central or State Government-Competency to file complaint.\n\nThe Labour Inspector, appointed under the Minimum Wages Act, 1948 filed two complaints before the Judicial Magistrate al!eging that the respondent, doing quarrying operation wmk, had contravened certain provisions of the Minimum Wages (Control) Rules, 1950. The respondent, inter alia, submitted that the Inspector wos not authorised to file the complaint, and only an Inspector appointed by the State Government was competent to file the complaint. The Judicial Magistrate held that the word \"mine\" in sub-cl.\n\n(i) of s. 2(b) of the Act, does not include a stone quarry and therefore, the appropriate government was the State Government and not the Central Government. The appellants' appeals were dismissed by the High Court. In appeal to this Court.\n\nHELD: An examination of the definition of \"appropriate Government\" in s. 2(b) of the Minimum Wages Act in the context and background of GDvernment of India Act, 1935, and the Mines Act, 1923, shows that the word \"mine\" in s. 2(b)(i) includes quarries.\n\nAlso stone breaking or stone crushing in a quarry is within Entry 8 in Part I of the Schedule of the Act. Since the employment in stone breaking or stone crushing is in a quarry, it is within the jurisdiction of the Centrc:-.1 Governm-ent, because it is a scheduled employment in a rn.ine v.:1ithin the meaning of s. 2(lf'(i}. Therefore, the Inspector appointed under the Act was competent to file the complaints. [465F: 466A-B, D] ·\n\nMadhya Pradesh Mi.neral Industry Association v. The Regional Labour Commissioner, Jabalpur, [1960] 3 S.C.R. 476, applied.\n\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 198 and 199 of 1963.\n\nAppeals from the judgment and order dated February 4, 1963, of the Bombay High Court in Criminal Appeals Nos. 779 & 780 of 1962.\n\nS. C. Patwardhan, B. R. G. K. Achar for R. H. Dheber, for the appellant.\n\nAvadh Behari, for respondent.\n\nThe Judgment of the Court was delivered by Sikri, J. These are two appeals by certificate, granted by the High Court of Judicature at Bombay against its judgment dated February 4, 1963, in Criminal Appeals Nos. 779 and 780 of\n\n1962, By this judgment the High Court affirmed the order of\n\nL/P(N )4SCI-3 461\n\nSUPREME COUR'r REPORTS\n\n(1965] 3 8, C, R.\n\nacquittal passed against the respondent by the Judicial Magistrate, A First Class, Vadagaon (Mawal).\n\nThe relevant facts are as follows : The Labour Inspector (Central), Bombay-I, appointed under the Minimum Wages Act\n\n(XI of 1948) (hereinafter called the Act) by the Central Government filed two complaints in the Court of the Judicial Magistrate B alleging that the respondent had contravened certain provisions of\n\nthe Minimum Wages (Central) Rules, 1950. It was alleged that the respondent was doing quarrying operation work in quarry survey Nos. 23(1) Kusegaon village near Lonavala, and while carrying on this quarrying operation work he, failed to observe\n\ncertain provisions in the Rules.\n\nThe respondent submitted a c written statement admitting the facts but he contended, inter alia, that the Inspector was not authorised to file the complaint and it was only an inspector appointed by the Maharashtra State who was competent to file a complaint. The Judicial Magistrate, treating this as a preliminary objection, came to the conclusion that the Inspector was not entitled to file the complaint. According to him, D the word \"mine\" in sub-cl. (i) of s. 2(b) of the Act does not include\n\na stone quarry and, therefore, the appropriate Government was the State Government and not the Central Government.\n\nThere upon he acquitted the accused of the offence under s. 22A, read with s. 18, of the Act and for contravening certain rules of the Minimum Wages (Central) Rules, 1950.\n\nThe State then filed two appeals before the High Court. The High Court also came to the conclusion that the Inspector was not competent to file the complaints but the reasoning of the High Court was different. It was of the opinion that \"a stone quarry can fall within the category of a mine as defined in the Mines Act of 1952 or the Mines and Minerals (Regulation and Development) F Act of 1957.\" But even so, according to it, \"the Schedule does\n\nnot mention either a mine or a stone quarry and item No. 8, viz.,· Employment in stone breaking and stone crushing, cannot, therefore, be said to be an employment in respect of a mine whether\n\nG in its broadest sense so as to include a stone quarry or in narrow sense as given in the Oxford English Dictionary.\" The High Court further held that 'unless, therefore, the Parliament amends item No. 8 of the Schedule so to include the operation of\n\nstone-breaking and stone-crushing in a stone quarry or in all mines\n\nincluding a stone quarry, it is not possible to hold that the appropriate Government would be the Central Government, merely on the that, in its widest connotation, the words 'stone quarry' H may fa 11 within the ambit of the word 'mine'.\"\n\nSection 2(b) of the Act defines \"appropriate government\" as follows:\n\n\"2(b) \"appropriate government\" means-\n\n(i) in relation to any scheduled employment carried on\n\nSTATE V, MOHANLAL (Sikri, J.) 463\n\nby or under the authority of the Central Government or a railway administration or in relation to a mine, oilfield or major port, or any corporation established by a Central Act, the Central Government, and\n\n(ii) in relation to any other scheduled employment, the 11 State Government.\"\n\nSub-clause (g) defines 'scheduled employment\" to mean an employment specified in the Schedule, or any process or branch of work forming part of such employment.\n\nThe Schedule is divided into two parts, and Part I contains entry 8-Employment in stone breaking or stone crushing. Section 22 prescribes the penalties for certain offences and s. 22A provides that \"any employer who contravenes any provisions of this Act or of any rule or order made thereunder shall, if no other penalty\n\nis provided for such contravention by this Act, be punishable with fine which may extend to five hundred rupees.\" Section 22B deals with the cognizance of offences and provides that \"no Court shall take cognizance of a complaint against any person for an offence ...\n\nunder clause (b) of section 22 or under section 22A except on a complaint made by, or with the sanction of, an Inspector.\"\n\nThe first question which arises is whether the quarry which the respondent is alleged to be working and in which the employees are alleged to be carrying on the operation of stone breaking or stone crushing is a mine, within s. 2(b). Learned counsel for the appellant has drawn our attention to the definition of the word \"mine\" in the Mines Act, 1952 (XXXV of 1952), and the Mines\n\nMinerals (Regulation and Development) Act, 1957 (LXVII of 1957). Section 2(j) of the Mine Act defines 'mine', and the relevant part of the definition is as under:\n\n\"\"Mine\" means any excavation where any operation for\n\nthe purpose of searching for or obtaining minerals has been or is being carried on, and includes- • • I •\n\n(iv) all open cast workings.\" The word 'minerals' is defined to mean all substances which can be obtained from the earth by mining, digging, drilling dredging, hydraulicing, quarrying or by any other operation and mineral oils (which in turn include natural gas and petroleum).\n\nThe learned counsel says that a quarry is a mine within this definition.\n\nIn the Mines and Minerals (Regulation and Deve10pment) Act, 1957, the expressions 'mine' and 'owner' have the meanings assigned to them in the Mines Act, 1952. The learned counsel contends that this meaning should be read into the Minimu111\n\nAct v\n\nThe learned counsel for the respondents relies on the observations of this Court in Pandit Ram Narain v. The State of Uttar Pradesh(') that \"it is no sound principle of construction to interpret expressions used in one Act with reference to their use in another Act. The meanings of words and expressions used in an Act ml)st take their colour from the context in which they appear.\" The learned counsel further contends, relying on a number of English\n\ndecisions, that in its primary signification the word 'mine' means underground excavations or underground workings.\n\nHe relies in particular on the speech of Lord Macnaughten in Lord Provost and Magistrates of Glasgow v. Farie(').\n\nThe House of Lords was concerned in that case with the interpretation of s. 18 of the Waterworks Clauses Act, 1847, which was in the following terms:\n\n\"The undertakers shall not be entitled to any mines of coal,\n\nironstone, state, or other minerals under any land purchased by them, except only such parts thereof as shall be necessary to be dug or carried away or used in the construction of the water-works unless the same shall\n\nhave been expressly purchased, and all such mines, excepting as aforesaid, shall be deemed to be excepted out of the conveyance of such lands, unless they shall have been expressly named therein and conveyed thereby.\" The appellants in that case had purchased from the respondent a parcel of land for the purpose of erecting waterworks and the conveyance contained a reservation. of the \"whole coal and other minerals in the land in terms of the Waterworks Clauses Act,\n\n1847.\" Under the land was a seam of valuable brick clay.\n\nThe respondent worked this clay in the adjoining land, and having reached the appellants' boundary, claimed. the right to work out the clay under the land purchased by the appellants. The House of Lords held that common clay, forming the surface or subsoil of land, was not included in the reservation in the Act, and that the appellants were entitled to an interdict restraining the respondent from working the clay under the land purchased by them. It is true Lord Macnaughten first construed the. word 'mjne' in this enactment to mean underground excavations or underground workings, and then proceeded to construe the section. But Lord Watson was of the opinion that the word 'mine' did not necessarily mean underground excavations. He said that \"it does not occur to me that an open excavation of auriferous quartz would be generally described as a gold quarry; I think most people would call it\n\na gold mine.\" Later he observed that \"the word 'quarry' is, no doubt, inapplicable to underground excavations but the word\n\n'mining' may without impropriety be used to denote some quarries.\n\nDr. Johnson defines a quarry to be a stone mine\". He arrived at the conclusion that \"the word 'mine' must be taken to signify all\n\n(') [!956] S.O.R. 664 at G73,\n\n(') 13 A.O. 657,\n\nSTA1'E v. MOltANLAL (Sikri, J,) 465\n\nexcavations by which the excepted minerals may be legitimately worked and got.\"\n\nIn our opinion, as stated in Halsbury's Laws of England, Third Edition, volume 26, p. 317, the word 'mine' is not a definite term, but is one susceptible of limitation or expansion according to the intention with which it is used.\n\nIn s. 2(b) of the Act; we have to see the context in which word has been used, What the legislature is purporting to do is to demarcate the jurisdiction of the State Governments and the Central Government in respect of minimum wages to be paid to persons employed in the employments enumerated in the Schedule.\n\nEntry 35 in List I of Schedule VII of the Government of India Act, 1935, was \"regulation of labour and safety in mines and oilfields.\" Entry 36 read \"regulation of mines and oilfields and mineral develooment to the extent to which such regulation_ and development under Dominion control is declared by Dominion law to be expedient in the public interest.\" It is not seriously contested that in Entries 35 and 36 the word 'mines' would include quarries. The Mines Act, 1923 (IV of 1923)\n\nwhich was the existing law when the Government of India Act came into force, made provisions regarding health and safety in mines and regulated hours and limitations of employment in the mines. The word 'mine' had been defined to mean any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on, and includes all works, machinery, tramways and sidings, whether above or below\n\nground, in or adjacent to or belonging to a mine, provided that it shall not include any part of such premises on which a manufacturing process is being carried on unless such process is a process for coke making or the dressing of minerals. Therefore, if we examine the definition of 'appropriate government' in s. 2(b) in the context and in the background of the Government of India Act anc\\ the existing law, it seems to us that the Central Legislature must have intended to include quarries in the word 'mine', otherwise it would be rather incongruous that some matters such as health and saftey, hours and employment in quarries should be regulated by the Central Government and minimum wages by the State Governments. Further, there is no indication whatsoever in the Act that the word 'mine' has the narrower meaning suggested by the learned counsel for the respondent.\n\nIf the word 'mine' is held to include a quarry, the next question that arises is whether stone breaking or stone crushing in a quarry is within the Schedule.\n\nWhile interpreting Entry 8 in the Schedule, this Court observed in Madhya Pradesh Mineral Industry Association v. The Regional Labour Commissioner, Jabalpur(') as follows:\n\n\"When we speak of stone-breaking or stone-crushing normally we refer to stone in the sense of \"piece of rock\"\n\n\nand that would exclude maganese. Employment in stone-breaking or stone-crushing in this sense would refer to quarry operations.\" This Court thus read Entry 8 to refer to quarry operations, and we hold that stone-breaking or stone-crushing in a quarry is within the Schedule.\n\nThus reading item 8 of the Schedule and s. 2(b) of the Act together, it seems to us. that the definition demarcates the jurisdiction of the Central Government and the State Governments in this way: If the employment in stone-breaking or is in a quarry then it is within the jurisdiction of the Central Government; if the employment in stone-breaking or stone-crushing is not in a quarry, it is the State Government that will have jurisdiction.\n\nWe are unable to appreciate the observations of the High Court that the operation of stone-breaking and stone-crushing in a stone quarry does not fall within item 8 of the Schedule and that it is necessary that Parliament should amend item 8 of the Schedule.\n\nIn the result, we hold that the Inspector was competent to file the complaints and the Magistrate and the High Court should not have acquitted the respondent on the ground of his being incompetent to file the complaints. The appeals are allowed and the judgment of the High Court and the order of the Magistrate are reversed and the cases remitted to the Magistrate to proceed with the complaints in accordance with law.\n\nAppeals allowed.", "total_entities": 52, "entities": [{"text": "STATE OF MAHARASHTRA", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "MOHANLAL DEVICHAND SHAH", "label": "RESPONDENT", "start_char": 22, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "MOHANLAL DEVICHAND SHAH", "offset_not_found": false}}, {"text": "March 23, 1965", "label": "DATE", "start_char": 47, "end_char": 61, "source": "ner", "metadata": {"in_sentence": "STATE OF MAHARASHTRA\n\nMOHANLAL DEVICHAND SHAH\n\nMarch 23, 1965\n\n[K. N. WANCHOO, J. R. MUDHOLKAR ANDS."}}, {"text": "K. N. 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C. Patwardhan", "label": "LAWYER", "start_char": 2077, "end_char": 2093, "source": "ner", "metadata": {"in_sentence": "S. C. Patwardhan, B. R. G. K. Achar for R. H. Dheber, for the appellant."}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 2095, "end_char": 2112, "source": "ner", "metadata": {"in_sentence": "S. C. Patwardhan, B. R. G. K. Achar for R. H. Dheber, for the appellant."}}, {"text": "R. H. Dheber", "label": "LAWYER", "start_char": 2117, "end_char": 2129, "source": "ner", "metadata": {"in_sentence": "S. C. Patwardhan, B. R. G. K. Achar for R. H. Dheber, for the appellant."}}, {"text": "Avadh Behari", "label": "LAWYER", "start_char": 2151, "end_char": 2163, "source": "ner", "metadata": {"in_sentence": "Avadh Behari, for respondent."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 2225, "end_char": 2230, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sikri, J. These are two appeals by certificate, granted by the High Court of Judicature at Bombay against its judgment dated February 4, 1963, in Criminal Appeals Nos."}}, {"text": "Labour Inspector (Central), Bombay-I", "label": "PETITIONER", "start_char": 2674, "end_char": 2710, "source": "ner", "metadata": {"in_sentence": "The relevant facts are as follows : The Labour Inspector (Central), Bombay-I, appointed under the Minimum Wages Act\n\n(XI of 1948) (hereinafter called the Act) by the Central Government filed two complaints in the Court of the Judicial Magistrate B alleging that the respondent had contravened certain provisions of\n\nthe Minimum Wages (Central) Rules, 1950."}}, {"text": "Minimum Wages Act", "label": "STATUTE", "start_char": 2732, "end_char": 2749, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Lonavala", "label": "GPE", "start_char": 3111, "end_char": 3119, "source": "ner", "metadata": {"in_sentence": "23(1) Kusegaon village near Lonavala, and while carrying on this quarrying operation work he, failed to observe\n\ncertain provisions in the Rules."}}, {"text": "Maharashtra State", "label": "ORG", "start_char": 3433, "end_char": 3450, "source": "ner", "metadata": {"in_sentence": "The respondent submitted a c written statement admitting the facts but he contended, inter alia, that the Inspector was not authorised to file the complaint and it was only an inspector appointed by the Maharashtra State who was competent to file a complaint."}}, {"text": "s. 2(b)", "label": "PROVISION", "start_char": 3693, "end_char": 3700, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22A", "label": "PROVISION", "start_char": 3903, "end_char": 3909, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18", "label": "PROVISION", "start_char": 3921, "end_char": 3926, "source": "regex", "metadata": {"statute": null}}, {"text": "Mines Act", "label": "STATUTE", "start_char": 4329, "end_char": 4338, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Parliament", "label": "ORG", "start_char": 4837, "end_char": 4847, "source": "ner", "metadata": {"in_sentence": "The High Court further held that 'unless, therefore, the Parliament amends item No."}}, {"text": "Section 2(b)", "label": "PROVISION", "start_char": 5224, "end_char": 5236, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 22", "label": "PROVISION", "start_char": 5989, "end_char": 5999, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22A", "label": "PROVISION", "start_char": 6050, "end_char": 6056, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 22B", "label": "PROVISION", "start_char": 6310, "end_char": 6321, "source": "regex", "metadata": {"statute": null}}, {"text": "section 22", "label": "PROVISION", "start_char": 6484, "end_char": 6494, "source": "regex", "metadata": {"statute": null}}, {"text": "section 22A", "label": "PROVISION", "start_char": 6504, "end_char": 6515, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(b)", "label": "PROVISION", "start_char": 6813, "end_char": 6820, "source": "regex", "metadata": {"statute": null}}, {"text": "Mines Act, 1952", "label": "STATUTE", "start_char": 6924, "end_char": 6939, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 2(j)", "label": "PROVISION", "start_char": 7036, "end_char": 7048, "source": "regex", "metadata": {"linked_statute_text": "the Mines Act, 1952", "statute": "the Mines Act, 1952"}}, {"text": "Mines Act, 1952", "label": "STATUTE", "start_char": 7792, "end_char": 7807, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Macnaughten", "label": "OTHER_PERSON", "start_char": 8515, "end_char": 8526, "source": "ner", "metadata": {"in_sentence": "He relies in particular on the speech of Lord Macnaughten in Lord Provost and Magistrates of Glasgow v. Farie(')."}}, {"text": "s. 18", "label": "PROVISION", "start_char": 8657, "end_char": 8662, "source": "regex", "metadata": {"linked_statute_text": "the Mines Act, 1952", "statute": "the Mines Act, 1952"}}, {"text": "Waterworks Clauses Act, 1847", "label": "STATUTE", "start_char": 8670, "end_char": 8698, "source": "regex", "metadata": {}}, {"text": "Waterworks Clauses Act", "label": "STATUTE", "start_char": 9462, "end_char": 9484, "source": "regex", "metadata": {}}, {"text": "Watson", "label": "OTHER_PERSON", "start_char": 10185, "end_char": 10191, "source": "ner", "metadata": {"in_sentence": "But Lord Watson was of the opinion that the word 'mine' did not necessarily mean underground excavations."}}, {"text": "Johnson", "label": "OTHER_PERSON", "start_char": 10642, "end_char": 10649, "source": "ner", "metadata": {"in_sentence": "Dr. Johnson defines a quarry to be a stone mine\"."}}, {"text": "England", "label": "GPE", "start_char": 10984, "end_char": 10991, "source": "ner", "metadata": {"in_sentence": "In our opinion, as stated in Halsbury's Laws of England, Third Edition, volume 26, p. 317, the word 'mine' is not a definite term, but is one susceptible of limitation or expansion according to the intention with which it is used."}}, {"text": "s. 2(b)", "label": "PROVISION", "start_char": 11171, "end_char": 11178, "source": "regex", "metadata": {"statute": null}}, {"text": "List I of Schedule VII of the Government of India Act, 1935", "label": "STATUTE", "start_char": 11492, "end_char": 11551, "source": "regex", "metadata": {}}, {"text": "Mines Act, 1923", "label": "STATUTE", "start_char": 11937, "end_char": 11952, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(b)", "label": "PROVISION", "start_char": 12719, "end_char": 12726, "source": "regex", "metadata": {"linked_statute_text": "The Mines Act, 1923", "statute": "The Mines Act, 1923"}}, {"text": "s. 2(b)", "label": "PROVISION", "start_char": 14044, "end_char": 14051, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_467_473_EN", "year": 1965, "text": "MOHAMMAD SAFI\n\nTHE STATE OF WEST BENGAL\n\nMarch 25, 1965\n\n[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.)\n\nCode of Criminal Procedure (Act 5 of 1898), s. 403.(1}---Proceedings before a Special Judge-Erroneous assumption of want of jurisdiction-Acquittal of accused after framing. charge-Subsequent trial, if barred.\n\nA charge sheet was filed in the Special Court constituted under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, against the appellant for an offence under s. 409, LP.C. After the examination of the prosecution witnesses a charge was framed.\n\nThereafter, the prosecution witnesses were cross-examined and the\n\naccused was questioned under s. 342 of the Criminal Procedure Code; At the time of hearing arguments, the Public Prosecutor\n\nplaced before the Special Judge two judgments of the High Court according to which the Special Court could not take cognizance upon a charge sheet and that therefore the entire proceedings were without. jurisdiction. Though the case was in fact allotted to the Special Judge by a Government notification, he held that he had no jurisdiction to proceed, and as the charge had already been framed. made an order acquitting the appellant. A formal complaint against the appellant was then preferred by the Public Prosecutor before the s1.1ccessor-in-office of the Special Judge and a fresh proceeding was\n\ncommenced against the appellant which ended in his conviction.\n\nHis appeal. to the High Court was dismissed.\n\nIn his appeal to this Court, the appellant contended that since he was tried and ac.quitted upon the same facts by the former Special Judge, his trial over again for the same offence was barred bv s. 403 of the Code.\n\nHELD: The trial and eventual conviction of the appellant were valid in law, because, the earlier order of the Special Judge did not amount to an order of acquittal as contemplated by s. 403(0 It was merely an order putting a stop to the proceedings.\n\nSection 403(1) can be successfully pleaded as a bar to a sutsequent trial for the same offence or for an offence based on the facts, where the accused had been (a) tried bv a court (b) of competent jurisdiction and (c) acquitted. It is only a court which is competent to initiate proceedings or to carry them on that can properly make an order of acquittal which will have the effect of barring a subsequent trial upon the same facts and for the same offence. It is true that in the instant case the former Special Judge could have properly taken cognizance of offence because of the allotment and, therefore, the proceedings before him were irl fact not vitiated by reason of lack of jurisdiction. But where a court says, though erroneously, that it was not competent to take cognizance of the offence, it has no power to acquit that person of the offence. Therefore, the order acquitting the appellant was in fact \" nullity. [470E; 471A-B, HJ .\n\nYwiofalli Mulla Noorbboy v. The King, L.R. 76 LA. 158, applied.\n\n467 .\n\nThe fact that a charge had been framed w<ould not help the A appellant. A criminal court is precluded from determining the case before it in which a charge has been fnmed otherwise than by\n\nmaking an order of acquittal or conviction, only where the charge was framed by a competent court. But in the present cas<e, since the former Special Judge was, on his own view, not competent to take cognizance of the offence, he was incompetent to frame the\n\ncharge. Similarly, the provisi(\\lls of s. 494 of the Code could not be B attracted, because; that provision also assumes the withdrawal by a Public Prosecutor of a charge competently made and before a court competent to entertain the withdrawal application. [473C-El\n\nMoreover, the earlier proceedings could not be deemed to be a trial at all, because, for proceedings to amount to a trial, they must be held before a court which is in fact competent to hold them and which is not of the opinion that it has no jurisdiction to hold them. c\n\n[473E-FJ - CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No: 18 of 1963.\n\nAppeal from the judgment and order dated September 24, I 962 of the Calcutta High Court in Criminal Appeal No. 601 of\n\n1%Q D\n\nD. N. Mukherjee, for the appellant.\n\nP. K. C hakravarti and P. K. Bose, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nMudholkar, J. The only point which has been urged inAhis appeal by certificate from a judgment of the High Court at Calcutta is whether the trial and conviction of the appellant for an offence under s. 409, Indian Penal Code were barred by the provisions of s. 403 of the Code of Criminal Procedure (hereinafter referred to as the Code).\n\nThe facts which are not in dispute are these: The appellant was tried for an offence. under s. 409, LP.C. b' Mr. T. Bhattacharjee, Judge., Birbhum Special Court and sentenct< to undergo rigorous imprisonment for four years.\n\nHis convictin was maintained in appeal by the High Court but the sentence , as reduced to rigorous imprisonment for two years.\n\nOne of the pints urged before the High Court was that upon the same fact1and with respect to the same offence the appellant was tried earlF by Mr. N. C. Ganguly, Judge, Birbhum Special Court and\n\nthereof.\n\nHe could, therefore, not have been tried over .-am m respect of that offence and consequently his conviction id sentence are illegal.\n\nWhat actually happened was this. The appe!IanfNho was a shed clerk at Sainthia Railway Station is alleged mitted criminal breach of trust with respect to 8 bags had been booked by rail at Murarai by one Bhikam (l_nd the consignee being the firm of Lalchand Phusraj He wa3 alleged to have done this in conspiracy with brah1m and Nepal Chandra Das. We are not concerned with the two persons\n\nMOHD. SAFI v. STATE (Mudholkatr, J.) (69\n\nand so we can leave them out of account. The offence was investigated into and a charge sheet was submitted against the appellant under s. 409, I.P.C. and two other persons by the Officer-in-charge,\n\nGovernment Railway Police, Asansol. Apparently he filed the charge sheet himself in the court of Judge, Birbhum Special Court.\n\nHowever, as set out in the order of Mr. Ganguly acquitting the\n\nappellant the case was distributed to the Birbhum Special Court for trial by notification No. 4515-J dated May 8, 1959 (Law Judicial Department), Government of West Bengal. The prosecution examined 21 witnesses before him and on August 28, 1959 he framed a charge against the appellant under s. 409, I.P.C. The prosecution witnesses were cross-examined on behalf of the\n\nappellant and the court examined him under s. 342 of the Code.\n\nAt the time of the hearing of arguments the Public Prosecutor placed before him a typed copy of a judgment of the High Court\n\nin Criminal Appeal No. 377 of 1958 in which it was held that a Special Court cannot, in view of the ame11dment of s. 5 (!) of the\n\nWest Bengal Criminal Law Amendment (Special Courts) Act, 1949 by Act 27 of 1956 take cognizance upol) a charge sheet because it is neither entitled to follow the procedure for trial under s. 251-A nor can it take cognizance under s. 190(1 )(c) unless in the latter case the provisions of s. 191 of the Code were complied with. The attention of the learned Judge was also drawn to A. P. Misra v.\n\nThe State(') where it was held that where a magistrate could not legally take cognizance of an offence on the basis of a charge sheet\n\nthe entire proceedings before him are without jurisdiction. In view of these decisions the learned Judge made an order of which the relevant portion runs thus:\n\n\"So the proceeding is without jurisdiction. As the unreported decision of their Lordships was not available at the time of framing of charge, charge was framed against the accused person and the case continued as usual. As the unreported decision of their Lordships has\n\nto the notice of this Court, the accused persons agamst whom charge was framed should be acquitted. As\n\nthe )Jersons. ar_e because the entire proceedmg is without 1umd1ct10n I am of opinion that it is necessaiy (sic) to discuss the evidence on record and decide the merits of the case.\"\n\nThereafter a formal complaint was preferred by the Public Prosecutor on May 16, )960 and Mr. Bhattacharjee who had succeeded. Mr. Ganguly as Judge of the Special Court, Birbhum\n\ncogmzance of the offence and commenced a fresh proceeding agamst all the accused persons, including the appellant. He framed a charge under s. 409, I.P.C. against the appellant and eventually convicted and sentenced him with respect to it, as already and the appeal from the conviction was dismissed by the High Court.\n\n(') [1958] Cr. L.J. 1386.\n\n In order to appreciate the argument advanced before us by Mr. D. N. Mukherjee on behalf of the appellant it is necessary to set out the provisions of sub-s. (1) of s. 403 of the Code. They are as follows;\n\n\"A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he might have been convicted unde.r section 237.\"\n\nThese provisions are based upon the general principle of auterfoi.1 acquit recognised by the English courts.\n\nThe principle on which the right to plead auterfois acquit depends is that a man may not be put twice in jeopardy for the same offence.\n\nThis principle has now been incorporated in Art. 20 of the Constitution. The defence of auterfois acquit, however,_has no application where the accused person was not liable lawfully to be convicted at the first trial be cause the court lacked jurisdiction. This is what has been pointed out by the Court of Criminal Appeal in Thoma!; Ewart Flower v.\n\nR. ('). From the language used in s. 403(1) of the Code it is clear that what can be successfully pleaded as a bar to a subsequent trial for the same offence or for an offence based on the same facts is that the accused had been (a) tried by a court, (b) of com petent jurisdiction and (c) acquitted of the offence alleged to have been committed by him or an offence with which he might have been charged under s. 236 or for which he might have been convicted under s. 237, of the Code .. Mr. Mukherjee, however, says that in so far as competency of the court is concerned it was there because the offence in question was cognizable by a Special Court\n\nand Mr. Ganguly made the order of acquittal as Judge of the Special Court.\n\nThe competence of a court, however, depends not merely on the circumstance that under some law it is entitled to try a case falling in the particular category in which the offence alleged against the accused falls.\n\nIn addition to this taking cognizance, of the offence is also material in this regard. Under the Code of Criminal Procedure a court can take cognizance of an offence only if the conditions requisite for initiation of proceedings before it as set out in Part B .of Chapter XV are fulfilled. If they are not fulfilled the court does not obtain jurisdiction to try the offence. In the case before us Mr. Ganguly took the view, though erroneously, that as one of the conditionnequisite for taking cognizance of the offence was not satisfied he had no jurisdiction over the matter. Having come to that conclusion he had no option but\n\nto put a stop to those proceedings. It appears, however, that he\n\n• (') 40 Cr. App. R. 189.\n\nMOBD. SAFI v. STATE (Mudholkar, J.) 471\n\nA felt that having already framed a charge the only manner in which\n\nhe could put an end to the proceedings was by making an order of acquittal. It requires, however, no argument to say that only\n\na court which is competent to initiate proceedings or to carry them on can properly make an order of acquittal, at any rate, an order of acquittal which will have the effect of barring a subsequent B trial upon the same facts and for the same offence. Mr. Mukherjee,\n\nhowever, raises two contentions on this aspect of the matter.\n\nIn the first place, according to him, the view taken by Mr. Ganguly that he could not have taken cognizance of the offence was erroneous as has been pointed out by this Court in Ajit Kumar Palit v.\n\nState of West Bengal(') and, therefore, he could legally acquit the C appellant. He further says that since Mr. Ganguly had not only\n\nframed a charge against the appellant but also examined all the witnesses both for the prosecution and for the defence and recorded the examination of the appellant he had completed the trial.\n\nIn the second. place, he says, that where a charge has been framed against an accused person in a warrant case the proceedings before D the court can either in acquittal or in conviction and in no other way.\n\nHP points out that under s. 494 of the Code the Public Prosecutor may with the consent of the court withdraw before a certain stage is reached, the prosecution of any person and that the only order which the court is competent to make is\n\nto acquit the accused if the withdrawal is made after a charge has E been framed.\n\nIt is true that Mr. Ganguly could properly take cognizance of the offence and, therefore, the proceedings before him were in fact not vitiated by reason of lack of jurisdiction. But we cannot F close our eyes to the fact that Mr. Ganguly was himself of the\n\nopinion-and indeed he had no option in the matter because he was bound by the decisions of the High Court-that he could not take cognizance of the offence and consequently was incompetent\n\nto try the appellant. Where a court comes to such a conclusion, albeit erroneously, it is difficult to appreciate how that court can G absolve the person arraigned before it completely of the offence\n\nalleged against him.\n\nWhere a person has done something which is made punishable by law he is liable to face a trial and this liability cannot come to an end merely because the court before which he was placed for trial forms an opinion that it has no jurisdiction to try him or that it has no jurisdiction to take cognizance of the H offence alleged against him. Where, therefore, a court says, though\n\nerroneously, that it was not competent to take cognizance of the offence it has no power to acquit that person of the offence.\n\nAn order of acquittal made by it is in fact a nullity. In this connection we might profitably refer to the decision in Yusofally Mu/la Noorbhoy v. The King('). That was a case where there was no\n\n(') [1963] 1 Supp. S.C.R. 953.\n\n(1) L.R, 76 I.A. 158.\n\nvalid sanction as required by cl. 14 of the Hoarding and Profiteer- A\n\ning Prevention Ordinance, 1943 for the prosecution of the appellant therein on separate charges of hoarding and profiteering. The sanction for the prosecution had been granted by the Controller General of Civil Supplies who was authorised to give such sanction\n\nby virtue of a notification of the Government of India duly published. Charges were framed by the Magistrate and thereafter B further evidence was called for by the prosecution and some of the witnesses were recalled for cross-examination. On the date of hearing, however, counsel for prosecution made a statement to the following effect:\n\n\"In view of the High Court decision in Revisional C Application No. 191 of 1945, as this court is not competent to try this offence, he does not wish to tender the witnesses already examined for further cross-examination nor to lead any further evidence.\" ·\n\nThereupon the Magistrate recorded an order in the following D terms:\n\n\"Mr. Mullick's evidence is deleted.\n\nAccused acquitted for reasons to be recorded separately.\"\n\nAfter referring to the statement of counsel for the prosecutio11 E and the order made on it the Magistrate continue\\!:\n\n\"On a perusal of the said decision, however, I find that the filing of this charge sheet by the prosecution itself is invalid in law, because the sanction is signed by the Controller-General under a Notification of the Government of India, and the said Notification does not state that the various officers therein mentioned are not below the rank of a District Magistrate. Thus it is the incompetence of the prosecution to proceed against the accused\n\nwithout sanction as provided for in law.\n\nAs, however, the invalidity of the sanction invalidates the prosecution in court, the accused was acquitted.\"\n\nThe Government filed an appeal against the order of acquittal.\n\nThe High Court allowed it and set aside the orders of the Magistrate acquitting the appellant and directed that the case should be tried by another Magistrate having jurisdiction to try it and dealt H with according to law.\n\nAgainst the decision of the High Court the appellant took an appeal to the Privy Council. The Privy Council accepted the view of the Federal Court in Basdeo Agarwalla v .. King Emperor(') that the prosecution launched without valid sanction is invalid and held that under the common law a plea of auterfois acquit or convict can only be raised where the\n\n(') [1945] F.C.R. 93.\n\nMOHD. SAFI v. (Mudholkar, J.) 473\n\nA first trial was before a court competent to pass a valid order of\n\nacquittal or conviction. Unless the earlier trial was a lawful one\n\nwhich might have resulted in a conviction, the accused was never in jeopardy. The pfinciple upon which the decision of the Privy Council is based must apply equally to a case like the present in which the court which made the order of acquittal was itself of the B opinion that it had no jurisdiction to proceed with the case and\n\ntherefore the accused was not in jeopardy.\n\nAs regards the second contention of Mr. Mukherjee it is necessary to point out that a criminal court is precluded from detennining the case before it in which a charge has been framed otherwise C than by making an order of acquittal or conviction only where\n\nthe charge was framed by a court competent to frame it and by a court competent to try the case and make a. valid order of acquittal or conviction.\n\nNo doubt, here the charge was framed by Mr.\n\nGanguly but on his own view he was not competent to take cognizance of the offence and, therefore, incompetent to frame a charge.\n\nD For this reason the mere fact that a charge had been framed in this\n\ncase does not help the appellant. Similarly the provisions of s. 494 of the Code cannot be attracted to a case of this kind because that provision itself assumes the withdrawal by a public prosecutor of a charge competently made and before a court competent to entertain the application for withdrawal.\n\nE In addition to the competent of the court, s. 403 of the Code speaks of there having been a trial and the trial having ended in\n\nan acquittal. From what we have said above, it will be clear that the fact that all the witnesses for the prosecution as well as for the defence had been examined before Mr. Ganguly and the F further fact that the appellant was also examined under s. 342\n\ncannot in law be deemed to be a trial at all. It would be only repetition to say that for proceedings to amount to a trial they must be held before a court which is in fact competent to hold them and which is not of opinion that it has no jurisdiction to hold them. A fortiori it would also follow that the ultimate order G made by it by whatever name it is characterised cannot in Jaw\n\noperate as an acquittal.\n\nIn the Privy Council case it was interpreted by Sir John Beaumont who delivered the opinion of the Board to be an order of discharge. It is unnecessary fon us to say whether such an order amounts to an order of discharge in the absence of any express provision governing the matter in the Code B or it does not .amount to an order of discharge. It is sufficient to\n\nsay that it does not amount to an order of acquittal as contemplated by s. 403(1) and since the proceedings before the Special Judge ended with that order it would be enough to look upon it merely as an order putting a stop to the proceedings. For these reasons we hold that the trial and eventual conviction of the appellant by Mr. Bhattacharjee were valid in law and dismiss the appeal.\n\nAppeal dismissed.", "total_entities": 68, "entities": [{"text": "MOHAMMAD SAFI", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "MOHAMMAD SAFI", "offset_not_found": false}}, {"text": "THE STATE OF WEST BENGAL", "label": "RESPONDENT", "start_char": 15, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF WEST BENGAL", "offset_not_found": false}}, {"text": "March 25, 1965", "label": "DATE", "start_char": 41, "end_char": 55, "source": "ner", "metadata": {"in_sentence": "MOHAMMAD SAFI\n\nTHE STATE OF WEST BENGAL\n\nMarch 25, 1965\n\n[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.)"}}, {"text": "A. K. SARKAR, J.", "label": "JUDGE", "start_char": 58, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "A.K. 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BACHAWAT", "offset_not_found": false}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 114, "end_char": 140, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 403", "label": "PROVISION", "start_char": 158, "end_char": 164, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 409", "label": "PROVISION", "start_char": 498, "end_char": 504, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 342", "label": "PROVISION", "start_char": 681, "end_char": 687, "source": "regex", "metadata": {"statute": null}}, {"text": "s1", "label": "PROVISION", "start_char": 1309, "end_char": 1311, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 403", "label": "PROVISION", "start_char": 1687, "end_char": 1693, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 494", "label": "PROVISION", "start_char": 3468, "end_char": 3474, "source": "regex", "metadata": {"statute": null}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 4173, "end_char": 4188, "source": "ner", "metadata": {"in_sentence": "601 of\n\n1%Q D\n\nD. N. Mukherjee, for the appellant.", "canonical_name": "D. N. Mukherjee"}}, {"text": "P. K. C hakravarti", "label": "LAWYER", "start_char": 4210, "end_char": 4228, "source": "ner", "metadata": {"in_sentence": "P. K. C hakravarti and P. K. Bose, for the respondent."}}, {"text": "P. K. Bose", "label": "LAWYER", "start_char": 4233, "end_char": 4243, "source": "ner", "metadata": {"in_sentence": "P. K. C hakravarti and P. K. Bose, for the respondent."}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 4310, "end_char": 4319, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMudholkar, J. The only point which has been urged inAhis appeal by certificate from a judgment of the High Court at Calcutta is whether the trial and conviction of the appellant for an offence under s. 409, Indian Penal Code were barred by the provisions of s. 403 of the Code of Criminal Procedure (hereinafter referred to as the Code).", "canonical_name": "R. MUDHOLKAR"}}, {"text": "s. 409", "label": "PROVISION", "start_char": 4509, "end_char": 4515, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 4517, "end_char": 4534, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 403", "label": "PROVISION", "start_char": 4568, "end_char": 4574, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 4582, "end_char": 4608, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 409", "label": "PROVISION", "start_char": 4741, "end_char": 4747, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "T. Bhattacharjee", "label": "JUDGE", "start_char": 4762, "end_char": 4778, "source": "ner", "metadata": {"in_sentence": "under s. 409, LP.C. b' Mr. T. Bhattacharjee, Judge.,"}}, {"text": "N. C. Ganguly", "label": "JUDGE", "start_char": 5149, "end_char": 5162, "source": "ner", "metadata": {"in_sentence": "One of the pints urged before the High Court was that upon the same fact1and with respect to the same offence the appellant was tried earlF by Mr. N. C. Ganguly, Judge, Birbhum Special Court and\n\nthereof."}}, {"text": "Birbhum Special Court", "label": "COURT", "start_char": 5171, "end_char": 5192, "source": "ner", "metadata": {"in_sentence": "One of the pints urged before the High Court was that upon the same fact1and with respect to the same offence the appellant was tried earlF by Mr. N. C. Ganguly, Judge, Birbhum Special Court and\n\nthereof."}}, {"text": "appe!IanfNho", "label": "OTHER_PERSON", "start_char": 5380, "end_char": 5392, "source": "ner", "metadata": {"in_sentence": "The appe!IanfNho was a shed clerk at Sainthia Railway Station is alleged mitted criminal breach of trust with respect to 8 bags had been booked by rail at Murarai by one Bhikam (l_nd the consignee being the firm of Lalchand Phusraj He wa3 alleged to have done this in conspiracy with brah1m and Nepal Chandra Das."}}, {"text": "Murarai", "label": "GPE", "start_char": 5531, "end_char": 5538, "source": "ner", "metadata": {"in_sentence": "The appe!IanfNho was a shed clerk at Sainthia Railway Station is alleged mitted criminal breach of trust with respect to 8 bags had been booked by rail at Murarai by one Bhikam (l_nd the consignee being the firm of Lalchand Phusraj He wa3 alleged to have done this in conspiracy with brah1m and Nepal Chandra Das."}}, {"text": "Bhikam", "label": "OTHER_PERSON", "start_char": 5546, "end_char": 5552, "source": "ner", "metadata": {"in_sentence": "The appe!IanfNho was a shed clerk at Sainthia Railway Station is alleged mitted criminal breach of trust with respect to 8 bags had been booked by rail at Murarai by one Bhikam (l_nd the consignee being the firm of Lalchand Phusraj He wa3 alleged to have done this in conspiracy with brah1m and Nepal Chandra Das."}}, {"text": "Lalchand Phusraj", "label": "OTHER_PERSON", "start_char": 5591, "end_char": 5607, "source": "ner", "metadata": {"in_sentence": "The appe!IanfNho was a shed clerk at Sainthia Railway Station is alleged mitted criminal breach of trust with respect to 8 bags had been booked by rail at Murarai by one Bhikam (l_nd the consignee being the firm of Lalchand Phusraj He wa3 alleged to have done this in conspiracy with brah1m and Nepal Chandra Das."}}, {"text": "Nepal Chandra Das", "label": "OTHER_PERSON", "start_char": 5671, "end_char": 5688, "source": "ner", "metadata": {"in_sentence": "The appe!IanfNho was a shed clerk at Sainthia Railway Station is alleged mitted criminal breach of trust with respect to 8 bags had been booked by rail at Murarai by one Bhikam (l_nd the consignee being the firm of Lalchand Phusraj He wa3 alleged to have done this in conspiracy with brah1m and Nepal Chandra Das."}}, {"text": "s. 409", "label": "PROVISION", "start_char": 5911, "end_char": 5917, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 5919, "end_char": 5924, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ganguly", "label": "LAWYER", "start_char": 6143, "end_char": 6150, "source": "ner", "metadata": {"in_sentence": "However, as set out in the order of Mr. Ganguly acquitting the\n\nappellant the case was distributed to the Birbhum Special Court for trial by notification No.", "canonical_name": "Ganguly"}}, {"text": "August 28, 1959", "label": "DATE", "start_char": 6396, "end_char": 6411, "source": "ner", "metadata": {"in_sentence": "The prosecution examined 21 witnesses before him and on August 28, 1959 he framed a charge against the appellant under s. 409, I.P.C. The prosecution witnesses were cross-examined on behalf of the\n\nappellant and the court examined him under s. 342 of the Code."}}, {"text": "s. 409", "label": "PROVISION", "start_char": 6459, "end_char": 6465, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6467, "end_char": 6472, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 342", "label": "PROVISION", "start_char": 6581, "end_char": 6587, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 6842, "end_char": 6846, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 251", "label": "PROVISION", "start_char": 7047, "end_char": 7053, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 190(1 )(c)", "label": "PROVISION", "start_char": 7089, "end_char": 7102, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 191", "label": "PROVISION", "start_char": 7147, "end_char": 7153, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "May 16, )", "label": "DATE", "start_char": 8182, "end_char": 8191, "source": "ner", "metadata": {"in_sentence": "Thereafter a formal complaint was preferred by the Public Prosecutor on May 16, )960 and Mr. Bhattacharjee who had succeeded."}}, {"text": "Bhattacharjee", "label": "OTHER_PERSON", "start_char": 8203, "end_char": 8216, "source": "ner", "metadata": {"in_sentence": "Thereafter a formal complaint was preferred by the Public Prosecutor on May 16, )960 and Mr. Bhattacharjee who had succeeded."}}, {"text": "Special Court, Birbhum", "label": "COURT", "start_char": 8264, "end_char": 8286, "source": "ner", "metadata": {"in_sentence": "Mr. Ganguly as Judge of the Special Court, Birbhum\n\ncogmzance of the offence and commenced a fresh proceeding agamst all the accused persons, including the appellant."}}, {"text": "s. 409", "label": "PROVISION", "start_char": 8428, "end_char": 8434, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 8436, "end_char": 8441, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 8698, "end_char": 8713, "source": "ner", "metadata": {"in_sentence": "In order to appreciate the argument advanced before us by Mr. D. N. Mukherjee on behalf of the appellant it is necessary to set out the provisions of sub-s. (1) of s. 403 of the Code.", "canonical_name": "D. N. Mukherjee"}}, {"text": "s. 403", "label": "PROVISION", "start_char": 8800, "end_char": 8806, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "section 236", "label": "PROVISION", "start_char": 9215, "end_char": 9226, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "section 237", "label": "PROVISION", "start_char": 9276, "end_char": 9287, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Art. 20", "label": "PROVISION", "start_char": 9582, "end_char": 9589, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 403(1)", "label": "PROVISION", "start_char": 9924, "end_char": 9933, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 236", "label": "PROVISION", "start_char": 10301, "end_char": 10307, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 237", "label": "PROVISION", "start_char": 10356, "end_char": 10362, "source": "regex", "metadata": {"statute": null}}, {"text": "Mukherjee", "label": "OTHER_PERSON", "start_char": 10383, "end_char": 10392, "source": "ner", "metadata": {"in_sentence": "From the language used in s. 403(1) of the Code it is clear that what can be successfully pleaded as a bar to a subsequent trial for the same offence or for an offence based on the same facts is that the accused had been (a) tried by a court, (b) of com petent jurisdiction and (c) acquitted of the offence alleged to have been committed by him or an offence with which he might have been charged under s. 236 or for which he might have been convicted under s. 237, of the Code .. Mr. Mukherjee, however, says that in so far as competency of the court is concerned it was there because the offence in question was cognizable by a Special Court\n\nand Mr. Ganguly made the order of acquittal as Judge of the Special Court."}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 10932, "end_char": 10958, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 494", "label": "PROVISION", "start_char": 12888, "end_char": 12894, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 14", "label": "PROVISION", "start_char": 14646, "end_char": 14652, "source": "regex", "metadata": {"statute": null}}, {"text": "Hoarding and Profiteer- A\n\ning Prevention Ordinance, 1943", "label": "STATUTE", "start_char": 14660, "end_char": 14717, "source": "regex", "metadata": {}}, {"text": "Government of India", "label": "ORG", "start_char": 14984, "end_char": 15003, "source": "ner", "metadata": {"in_sentence": "The sanction for the prosecution had been granted by the Controller General of Civil Supplies who was authorised to give such sanction\n\nby virtue of a notification of the Government of India duly published."}}, {"text": "Mullick", "label": "OTHER_PERSON", "start_char": 15623, "end_char": 15630, "source": "ner", "metadata": {"in_sentence": "Thereupon the Magistrate recorded an order in the following D terms:\n\n\"Mr. Mullick's evidence is deleted."}}, {"text": "[1945] F.C.R. 93", "label": "CASE_CITATION", "start_char": 17088, "end_char": 17104, "source": "regex", "metadata": {}}, {"text": "Ganguly", "label": "LAWYER", "start_char": 18107, "end_char": 18114, "source": "ner", "metadata": {"in_sentence": "No doubt, here the charge was framed by Mr.\n\nGanguly but on his own view he was not competent to take cognizance of the offence and, therefore, incompetent to frame a charge.", "canonical_name": "Ganguly"}}, {"text": "s. 494", "label": "PROVISION", "start_char": 18371, "end_char": 18377, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 403", "label": "PROVISION", "start_char": 18658, "end_char": 18664, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 342", "label": "PROVISION", "start_char": 18992, "end_char": 18998, "source": "regex", "metadata": {"statute": null}}, {"text": "John Beaumont", "label": "OTHER_PERSON", "start_char": 19465, "end_char": 19478, "source": "ner", "metadata": {"in_sentence": "In the Privy Council case it was interpreted by Sir John Beaumont who delivered the opinion of the Board to be an order of discharge."}}, {"text": "s. 403(1)", "label": "PROVISION", "start_char": 19851, "end_char": 19860, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_474_487_EN", "year": 1965, "text": "LIFE INSURANCE CORPORATION OF INDIA A\n\nCROWN\n\nCO.\n\nMarch 26, 1965 [K. N. WANCHOO, J. R. MuDHOLKAR AND S. M. SIKRI, JJ.J\n\nLife Insurance Corporation Act (31 of 1956), First Schedule, Pa.rt B, Para 4, cl. (d) and Insurance Act (4 of 1938), s. 10(2)-\"Life insnr- B ance fund\". Meaning of.\n\nUnder s. 10(2) of the Insurance Act, 1938, where an carries on the business of life insurance, all receipts due in respect of su.ch business shall be carried to and form a separate fund called the life insurance fund. Section 11 ( c) provides for keeping a revenue account in Form D of the Third Schedule, which applies to life insurance business also. This account, on the receipt side, has rnainly income C from premiums and out of investments from life fund and, on the expenditure side, all expenses and bad debts connected with the life business. A balance is struck after taking into account the balance of the fund at the beginning of the year and after making some adjuotrnents and transfers, and the \"life insurance fund\". is arrived at.\n\nForm I of the Fourth Schedule to the Insurance Act, provides for determining the surplus or deficit, which is the difference between D the net liability in business determined by actuarial valuation of policies in force and the Life Insurance Fund,. If there is a surplus, s. 49(1) of the Insurance Act provides, that 7!% of the surplus shall\n\nbe allocated to shareholders. and the balance shall remain in the fund for policv holders. When transfer of life insurance business from\n\nthe life insurance companies to the Life Insurance Corporation took place, a provision had to be made for carrying out the effect of s.49(1).\n\nE That provision was made in Cl. (d) of para. 4 of Part B of the First Schedule to the Life Insurance Corporation Act, 1956, according to\n\nwhich, where there is surplus in the life insurance fund, as a result\n\nof the actuarial valuation of policy liabilities under Cl. (b) of the same para. 4, 96% of such surplus shall be shown as a liability, that is, 96% of that surplus shall go to the Corporation in order to meet the liabilities, and to that extent the compensation to be paid to the F' insurance company would he reduced. Part B applies to those insurers, who, having a surolus in Form 1 have not allocated the whole or any part of such sUrpl.us to policy holders, an<l also provides, how comnensation is to be paid to companies who had no surplus as disclosed in Form I. In the latter case, that is, if there was a deficit in Form T,. there could be no allocation to the policv holders under s.49(1) of the Insurance Act, and there would be no liability under Cl. (d).\n\nOn the taking over of 1 he business of the respondent, a life insu ranee company incorporated in Canada, by the appellants, under the Life Insurance Corporation Act, the respondent claimed Rs. 27 lacs and\n\nodd as compensation. The respondent contended that the words \"life insurance fund\" in Cl. (d) referred to above had the same meaning' as those words in the Insurance Act, and since there was deficit in its working as shown by Form I. no amount was to be deducted as liab!- H lity under Cl. (d). The appellant was prepared to pay only Rs. 1 lac and odd, on the basis that, the words \"life insurance fund\" in Cl.\n\n( d) meant the difference between the total assets and the liabilities\n\nE •\n\nL. I. c. v. CROWN INSURANCE (!f.anchoo, J.) 475\n\nunder Cls. (a) and (c) ancl since there was a surplus of Rs. 27 lacs and odd, a sum of Rs. 26 lacs and odd, forming, 96';{ of it, was to be clebited towards the liabilities of the respondent.\n\nThe Insurance Tribunal accepted the respondent's contention and awarded the compensation claimed by it.\n\nIn its appeal to this Court, the appellant contended that: (i) the words \"life insurance fund\" under the Insurance Act have more than one meaning under that Act, and therefore it was not pcssible to give the meaning, claimed by the respondent, to those words in Cl. (d) under the Corporation Act, and (ii) even if those words have only one meaning under the Insurance Act, they have a different\n\nmeaning under the Cl. (d).\n\nHELD: (i) A combined reading of ss. 10(2), 11 and 13 of the Insu:ance Act and Form D cf the Third Schedule and Form I of the Fourth Schedule to the Insurance Act, shows, that the words \"life insurance fund\", ''surplus\" and \"dEficit'' have only the definite meaning set out above, as contended by the respondent. [ 480B-Cl\n\nThe contention, that the words ''life insurance fund\" have different meanings in ss. 56(2) and 58(3), and in regulation 7 of Part I of the First Schedule to the Insurance Act, has no force, because when th 0 marginal note of s. 56(2) refers to surplus assets of life insurance fund it means in reality the surplus to be found in Form I and the same applies to s 58 (3): and as regards regulation 7, the plural is used in the words ''life insurance funds'' merely due to exigencies of gramma. r460F: 481D-E F-G] It cannot be said that because s. 27(1) of the Insurance Act lays down that an insurer is required to keep certain sums invested to m-:et his liabilities mention:d therein, the entire assets of the insurer are security for the policy holders and not merely the life insurance fund. This section only provides that when life insurance fund shows a deficit in Form I it w.ould be the duty of the insurer to see that he has further assets to cover the deficit, and that these assets are always kept invested in accordance with the Insurance Act; but ths section does not provide tpat the assets brought in to cover the deficit would\n\nbecome part of the life insurance fund. It is only such moneys which are included in the revenue account, Form D, and which are not of a capital nature that form part of the life insurance fund. Since, in the instant c3se the business of the respondent in India had admittedlv shown a deficit in Form I, and the funds brought in by the respondent from outside to cover the deficit were never put in the revenue account, they were never made part of the life insurance fund, though\n\nthev remained vested in a trustee under s. 27 (6) of the Insurance Act.\n\n[482B-G]\n\n(ii) The Tribunal was right in its conclusion that the words \"life insurance fund\" as used in Cl. (d_) of the aforesaid fourth paragraph have the same meamng as that given to them in s. 10(2) of the Insurance Act read with s. 11 and Form D of the Third Schedule to the Insurance Act. [483H]\n\nWhen Cl. ( d) speaks of the life insurance fund being in surplus that sur!'lus has to be de.termmed m accord11nce with Form I subject to eertam mod1ficat10ns md1cated m Part B of the Corporation Act.\n\nThe cont\n\n0 xt. therefore, mstead of showing that there is any other of the words \"lif_e insurance fund\" in Cl. (d), shows that they have the same meamng m that clause as in Form I. .[ 485D, El\n\nSection 35(1) and (2) of the Corporation Act also point to the same_ conclusion. because, these provisions show that where the legislature in.tended to refer to all _Bssets and liabilities it said so in terms and did not use the words hfe msurance fund''. Resides, if these\n\nSUPREME COURT REPORTS\n\n(1965) 3 S.C.R.\n\nwords were given the meaning for which the appellant. contended, A there would be an inconsistency between Cl. ( d) and s. 35, m th.at, the insurer would get away with a much larger amount if he app!Ied for repatriation of excess assets under s. 35, and would &et a much smaller amount if he did not choose to apply under the sect10n, a result which the legislature could not have intended. Moreover, the share capital of an insurance company cannot obviously form ptrt of the Me msurance fund; but on the interpretation urged on behalf of the appellant, even 96% of the share capital may be lost to an insurance company, as part of the life insurrnce fund in conce'vable circumstances.\n\n[486A-C, F; 487G].\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 999 of 1964.\n\nAppeal by special leave from the order dated March 25, 1964 of the Life Insurance Tr; bunal, Bombay in Case No. 27 of 1962.\n\nC. K. Daphtary, Attorney-General, S. !. Banaji, Atiquor Rehman and K. L. Hathi, for the appellant.\n\nN. A. Palkhivala, S. !. Sorabjee, J. B. Dadachanji, 0. C.\n\nMathur and Ravinder Narain, for the respondent.\n\nThe. Judgment of the Court was delivered by D\n\nWanchoo J. The only question that arises for determination in this appeal by special leave from the order of the Life Insurance Tribunal, Bombay, is the interpretation of the words \"life insurance fund\" as used in paragraph 4 of Part B of the First Schedule to the Life Insurance Corporation Act, No. 31 of 1956, (hereinafter referred to as the Act). The question arose in connection with the pay- E ment of compensation to the respondent, the Crown Life Insurance Company, which is incorporated in Canada,' by the appellant, the Life Insurance Corporation of India on the taking over of the business of the respondent by the appellant under the Act. The respandent claimed Rs. 27,86,658 as compensation while the appellant was prepared to pay Rs. 1,11,466. The respondent claimed that as F its life insurance fund was always in deficit before the Act came into force, there was no liability on it under cl.(d) of paragraph 4 of Part B of the First Schedule to the Act. The appellant on the other hand claimed that under that cl. (d), there was a surplus of Rs. 27,86,658 and therefore under cl. (d) a sum of Rs. 26,75,192 was to be debited towards the liabil'ties of the respondent. That is G how the appellant arrived at the compensation of Rs. l,11,466.\n\nThe appellant claimed that the words \"life insurance fund\" in\n\ncl. (d:) meant the difference between the total assets and the liabilities under els. (a) and (c) of the said paragraph 4. The respondent on the other hand contended that the words \"life insurance fund\" in cl. (d) had the same meaning as those words had under the Insurance Act, No. 4 of 1938 (hereinafter referred to as the Insurance Act). The respondent therefore claimed that as there was always a\n\ndeficit in its working as shown by form I of the Fourth Schedule\n\nto the Insurance Act, no amount was to be deducted as liability under cl. (d) of the said paragraph 4. It is this difference in the meaning assigned to the words \"life insurance fund\" by the parties\n\nH I\n\nL. I. c. v. CROWN INSURANCFJ (Wanchoo, J.) H7\n\nthat is responsible for the large difference in the amount claimed by the respondent and offered by the appellant.\n\nThe Insurance Tribunal has accepted the contention put forward on behalf of the respondent and has held that the words \"life insurance fund\" in cl. (d) of the said paragraph 4 have the same meaning as in the Insurance Act, and that there only one meaning of these words in the Insurance Act. It has rejected the contention raised on behalf of the appellant and has in consequence award• ed compensation at Rs. 27,86,658. Aggrieved by this order, the appellant got special leave from this Court; and that is how the matter has come up before us.\n\nThe sole question that falls for determination therefore depends on the interpretation of the words \"life insurance fund\" and for that purpose we shall have to consider certain provisions of the Insurance Act as well as of the Act. We may at the outset refer to s. 2 (10) of the Act, which is as follows: -\n\n\"In this Act, unless context otherwise require--\n\n(10) all other words and expression used herein but not defined and defined in the Insurance Act shall have the meanings respectively assigned to them in that Act.\" It is .not in dispute that the words \"life insmance fund\" appear in the Insurance Act though not in the definition section thereof. Sec E tion 2 (I 0) of the Act however does not refer only to the definitions\n\nin the definition section of the Insurance Act; it lays down generally that any words and expressions used in the Act and defined\n\nin the Insurance Act shall have the meanings assigned to them in the Insurance Act (and that means anywhere in the Insurance Act) unless the context otherwise requires. We have therefore to turn to F the Insurance Act first to find out the meaning of .the words \"life insurance fund\" as given therein and then to see whether the context of cl. (d) of the said paragraph 4 requires otherwise. If we come to the conclusion that it does not require otherwise, the words \"life insurance .fund\" in cl. (d) of the said paragraph 4 will have the same meaning as in •he Insurance Act.\n\nG Let us therefore turn to the Insurance Act to see what the words \"life insurance fund\" mean under that Act. It has been urged in the first place on behalf of the appellant that the words \"life insurance fund\" un.de.r the Insu; ance have not one meaning only and therefore 1t 1s not possible to give that meaning to these H words in cl. (d) with which we are concerned. In the alternative it is urged that the context requires that even if the words \"lift insurance fund\" have only one meaning under the fosurance Act they have a different meaning under cl. (d). '\n\nWe have therefore to find out what the words \"life insurance fund\" mean under the Insurance Act and whether they have the same meaning throughout the Act. We have already pointed out that the words \"life insurance fund\" have not been defined in s. z L/P(N)l8Cf-4\n\n\n[1965) 3 8.C, B.\n\nof the Insurance Act, which is the definition section. But there is no A doubt that in s. 10 of the Insurance Act, these words have been given a specific meaning to which we shall now refer. The Insurance Act was not only with life insurance business but also with insurance business of other kinds, namely, marine, fire and miscellaneous. It was open to an insurance company to carry on\n\neither the life insurance business only or life insurance business B along with insurance business of other kinds also. Therefore, s. IC(]) of the Insurance Act provided that where an insurer carried on business of more than one kind, he was bound to keep a weparate account of-all receipts and payments in respect cf each kind of business. Section 10(2) dealt specifically with life insurance and we therefore read the relevant part of that .sub-section: - c\n\n\"Where the insurer carries on the business of life insurance, all receipts due in respect of such business shall be carried to and shall form a separate fund to be called the life insurance fund the assets of which shall ...... be kept distinct and separate from all 0th.er assets of the insurer and the deposit made by the insurer in respect 0f life insurance business shall be deemed to be part of the assets of such fund and every insurer shall ...... furnish to the Controller a statement showing in detail such assets as at the close of every calendar year duly certified by an auditor or by a person qualified to audit under the law of the insurer's country'\" There are three provisos to this section to which it is unnecessary for our purposes to refer. Sub-section (3) of s. I 0 is also material and runs as follow:-\n\n\"The life insurance fund shall be as absolutely the security of the life policy-holders as though it belonged to an insurer carrying on no other business than life insurance business and shall not be liable for any contracts of the insurer for which it would not have been liable had the business of the insurer been only that of life insurance and shall not be applied directly or indirectly for any purposes other than those of the life insurance business of the insurer.\"\n\nSection 11 (c) then provides for keeping a revenue account in form D of the Third Schedule in respect of each insurance business for\n\nwhich separate account was required to be kept under s. 10(1).\n\nRegulation I of Part I of the Third Schedule provides that form D as set out in Part II is appropriate for life insurance business. A perusal of form D shows what items have to be entered on the\n\nreceipts side of the form and these items are: premiums of all kinds, consideration for annuities, interest, dividends and rents\n\n(obviously from assets of the life insur!ince fund); regulation fees and other income. It is thus clear that the revenue account on the receipt side mainly has income from premiums and income arising\n\nL. I. c. v. CROWN INSURANCE (Wanchoo, J.) 479\n\nout of investments from life fund and this forms the main basis of the life insurance fund. On the expenditure side of form D there is provision for claims under pol'cies, annuities, surrenders, bonuses in cash, bonuses in reduction of premiums, expenses of. management (i.e. salaries etc., travelling expenses, directors' fees, auditors' fees, and charges for advertisements, printing and stat'onery, other expenses of management, rents for office belonging to and occupied\n\nby the insurer, rent of other offices kept by the insurer), bad debu and other expenditure. Thereafter a balance has to be struck and this balance is the balance of the life insurance fund. This balance is arrived at after taking into account the balance of the fund at the beginning of the year and after making adjustments with respect to profit and loss and transfers from appropriation account. It is this balance which goes into the balance skeet form A provided in the First Schedule of the Insurance Act as life insurance fund and in eludes as provided in s. 10(2) the deposit made by the insurer in respect of life insurance business. There is no doubt therefore that the words \"life insurance fund\" under the Insurance Act have got the meaning assigned to it under s. I 0(2) read with s. 11 and form D of the Th!rd Schedule. I.t is equally clear that all the assets of an insurance company doing life insurance business do not form part of the life insurance fund. for example, if the insurance company has got share capital that is not part of the life insurance fund even though the deposit required by law to be made for life insurance business is part of the fund. So far therefore as s. 10(2), s. 11 and form D are concerned, life insurance fund has a definite meaning.\n\nThe working of a life insurance company is in some respects different from that of ordinary companies inasmuch as it is not opeD to a life insurance company to distribute dividends unless there is surplus computed under the Insurance Act. This surplus is determined thus: First of all the life insurance fund as disclosed by revenue account in form D is found out. Then the valuation of the policies in force as on a certain date is determined by actuarial valuation which has to be made at least once in three years under s. 13(1) of the Insurance Act. After valuation of the policies of different kinds they_ are grouped under different heads and their summary is set flut m form H. of the Fourth Schedule. Form I of the said Schedule provides. for determining the surplus or deficit. This form is known as valuation balance sheet and the surplus or deficit is the differ e_nce. between net liability in business as shown in form H and the hfe fund as shown in sheet form A. Surplus will only _res_u_lt if the balance of hfe msurance fund is greater than the net hab1hty form H. Where however the balance of life insurance 1s less than the net liability under form H, there will be a deficiency and not surplus. Section 49(1) of the Insurance Act then provides that no amount of the life insurance fund wiH be used to pay any div; dend to share-holders or any bonus to policyholrlers or for making any payment in service of anv debenture unles' valuation balance sheet in form I of the Fourth Schedule\n\nSUPREME COURT (1965] 3 s.c.n.\n\nshows a surplus. It is further provided that out of the surplus only A Ti per centum shall be allocated to or reserved for shareholders with the consequence that the balance of 921 per centum of the surplus remains in the fund for policyholders or may be allocated as bonus to policyholders. The life insurance fund as defined in\n\n' l0(2) is an absolute security of the life policy-holders and cannot be used in any manner except in accordance with the B provisions to which we have already referred, Thus the words \"life insurance fund\" have a definite meaning under the Insurance\n\nAct under s. 10(2), read with s: 11 and form D of the Insurance Act and the words \"surplus\" and \"deficiency\" have also special meaning appearing from a combined reading of s. 13 of the Insurance Act and form H and form I of the Fourth Schedule.\n\n C\n\nThe next question is whether the words \"life insurance fund\" have any other meaning under the Insurance Act. These words appear in a number of provisions of that Act. It is not necessary however to refer to all of tl1ose provisions for it is not in dispute that in most of the provisions the words have the meaning assigned D to them under s. 10(2) of the Insurance Act. But three provisions have been specifically brought to our notice where it is said that the words have a different meaning. The first is s. 56 which deals with winding-up of insurance companies. In sub-section (2) thereof reference is made to surplus of assets over liabilities and how such surplus which is called prima facie in the sub-section is to E be dealt with. It will however be seen that the sub-section does not use the words \"life insurance fund\" when speaking of prima facie surplus which is the difference between all assets and all liabilities.\n\nBut it is urged that the marginal note to the section which is in these words \"application of surplus assets of life insurance fund in liquidation or insolvency\" shows that for the purpose of this sect; on, F the words \"life insurance fund\" as used in the marginal note may have a different meaning. We are however of opinion that this is not so. Sub-section (2) after speaking of prima facie surplus, which\n\nis equa I to total assets minus total liabilities, provides how the prima facie surplus is to be dealt within winding-up proceedings.\n\nThe SJJb-section provides that this prima facie surplus would be G divided into two parts and one part would be in proportion to the profits of the insurer allocated to policy-holders. This part will naturally be determined with respect to form I of the Fourth Schedule which deals with life insurance fund and surplus or deficiency. The sub-section thus provides that out of the prima fade surplus a certain amount will be deducted in proportion to the profit allocated B to the policy-holders, and remaining will be the amount which may go to shareholders in winding-up. Therefore as we read sub-section\n\n(2) we find that it deals with entire assets and these entire assets will certainly include the life insurance fund. The marginal note indicates how out of the prima facie indicated in sub-section\n\n(2) the surplus in the life insurance furid as arrived at in (orm I shall be used. The argument that the words \"life insurance fund\" in\n\nL. I. c. v. CROWN INSURANCE (JV an{; hoo, J.) 481\n\n56(2) has a different meaning therefore has no force for two reas:rns. In the first place the section does not use the words \"life insurance fund\" and in the second place when the marginal note refers to surplus assets of life insurance fund it means in reality the surplus to be found: in form I, for the prima facie surplus will include that. We cannot therefore accept the contention that for the\n\npurposes of s. 56(2) the words \"life insurance fund\" have a different meaning in view of the marginal note of s. 56.\n\nThe next section to which reference is made in this connection is s. 58(3). Section 58 deals with schemes for partial winding-up of insurance companies, i.e. winding-up of one kind of business while another kind of business goes on. Section 58(3) provides that the\n\nprovisions of this Act relating to valuation of liabilities of the insurer in liquidation and insolvency and to the application of surplus assets of the life insurance fund in liquidation or insolvency shall apply to the winding-up of any part of the affairs of the company. It is argued that the words \"life insurance fund\" here are used\n\nin a different sense. We are of opinion that this is not so. Sub-section\n\n(3) of s. 58 has to be read along with s. 56 and in particular with sub-s. 12) thereof and as we have already indicated the words \"life\n\ninsurance fund\" iri the marginal note of s. 56 have no different meaning from that to be found in s. 10(2) the same applies to the use of the words \"life insurance fund\" in .s. 58(3) mutatis mutandis.\n\nLastly reference was made to regulation 7 of Part I of the First Schedule, which provides for a certificate that no part of the assets of the life insurance fund has been directly or indirectly applied in contravention of the provisions of the Insurance Act relating to the application and investment of life insurance funds. It is urged that\n\nthe use of the plural suggests that a different meaning is to be given to the words \"life insurance fund\" here. We are unable to agree with this contention either, The use of the words \"life insurance funds\" in plural is merely due to the exigencies of grammar in this provision and does not mean that the words have a meaning different from that assigned to them in s. l 0(2) to which we have already referred. We must therefore reject the contention on behalf of the appellant that the words \"life insurance fund\" have any meaning other than that assigned to them in s. l 0(2) of the Insurance Act so far as that Act is concerned.\n\nReference is then made to s. 27(1) of the Insurance Act which requires that every insurer shall invest and at all times keep invested assets equivafent to not less than the sum of the amount of his to holders of life insurance policies in India on account of matured claims and the amount required to meet the liabilitv on policies of life insurance maturing for payment in India subjeet to certain deductiom;. It is urged that this provision lays down that an insurer is required to keep certain sums invested to meet his liabilities mentioned therein and this shows that the entire assets of the insurer are security for the policy-holllers. It is true that this provision requires an insurer to keep certain assets invested and those\n\nSUPREME COTJR1' REPORTS\n\n[1965] 3 S.C.R.\n\nhave to be equal to his liabilities on policies matured and policies A. yet to mature. This provision is for the protection of the policyholders' interest. It has however in our opinion nothing to do with the life insurance fund as such. What in fact it provides is that when the life insurance fund shows a deficit in form I it would be the duty of the insurer to see that he has further assets to cover the deficit, and that these assets are always kept invested in accordance B. with the Insurance Act; but the section does not provide that the assets brought in to cover the deficit would become part of the life insurance fund. It is not in dispute that there is no other provision in the Insurance Act which requires that whenever the life insurance fund is in deficit the insurer must put sufficient money in that fund itself to cover the deficit. It is true that form D of the Third Scb.ec dule includes an item \"other income\" but that does not mean that any sum kept invested by an insurer for the purposes of s. 27(1) in order to cover the deficit in the life insurance fund becomes part of that fund. Note (e) which appertains to \"other income\" of the 1aid form D makes it clear that all the amounts received by the insurer directly or indirectly whether from his head office or from D any other source outside India shall also be shown separately in the revenue account except such sums as properly appertain to the capital account. Therefore sums invested for purposes of s. 27(1) of the Insurance Act do not necessarily form part of tl)e life insurance fund. It is only such moneys which are included in form D and\n\nwhich are not of capital nature that form part of the life insurance E fund. In the present case it is not in dispute that the business of the respondent in India always had shown a deficit in form I. It is also not in dispute that in order to meet that deficit as required by s. 27(1), the respondent took advantage of s. 27(6) which provides that the assets required by this section to be held invested by an insurer incorporated or domiciled outside India shall F subject to 'certain exceptions be held in India and all such assets shall be held in trust for the discharge 'of the liabilities of the nature referred to in sub-s. (!) and shall be vested in trustees resident in India and approved by the Central Government and the instrument of trust under this sub-section shall be executed by the insurer with the approval of the Central Government and shall . G define the manner in which alone the subject-matter of the trust shall be dealt with. Such an instrument of trust was executed by the respondent and the State Bank of India was the trustee of the fund required to be kept under s. 27(1) read with s. 27(6).\n\nBut that in our opinion did not make the whole of this trust fund part of the life insurance fund as defined in s. 10(2). The money H required to cover the deficit in form I could only become part of che life insurance fund if that was included in the revenue account form D and in such a case there would\n\nthen be no deficit left in the life insurance fund. It is not iti dispute that in this case funds brought in by the respondent from outside to cover the deficit were never put in the revenue account and were never made part of the life insurance fund, though\n\nL. I. c. \"· CROWN INSURAKCE (Wanclwo, J.) 483\n\nthey remained vestd in the trustee for the purpose of. s. 27(1) read withs. 27(6).\n\nThe appellant's contention always was that the case of the respondent, for purpose of compensation, was covered by part B of the First Schedule to the Act and not by its Part A, and this was because there was a deficit in form I submitted by the respondent throughout its working. It appears that in spite of this deficit in the Indian working of the respondent, the\n\nrespondent used to pay bonuses to its policy-holders out of its global surplus and these payments were made in cash. Even so the appellant insisted-and rightly-that as form I showed deficit at the relevant time the respondent was not entitled to take advantage of Part A of the First Schedule to the Act for purposes of compensation. In such circumstances it seems strange when admittedly there was always a deficit in form I submitted by the respondent in connection with its Indian business that the appellant should now say for the purpose of compensation that there is a surplus disclosed by the business of the respondent. 96 per centum of which would go to the appellant under cl. (d) of the aforesaid '4th paragraph. We are therefore of opinion that the appellant cannot take advantage of s. 27(1) and ask us to hold that all the funds which are mentioned in s. 27(1) to be kept invested are part of the life insurance fund. Part B applies to two kinds of insurance companies-viz.. those which had deficits and those which had surplus but had not distributed it at the relevant time. It is\n\nthe latter class of companies that cl. (d) is really meant to cover.\n\nAs we have already said s. 27(1) has nothing to do with the life insurance fund and is meant only as a safety device for policyholders, particularly in cases where there is deficit in the life insurance fund.\n\nBut where such deficit is made up for the purpose of s. 27(1), the extra amount so invested by the insurer to make up the deficit does not automatically become part of the life insurance fund unless it is put through the revenue account form D. That was admittedly never done in this case and form I always showed a deficit in the case of the respondent.\n\nSection 27(1) therefore does not help the appellant, for it is not in dispute that an insurer is not bound to make up the deficit by putting money in the life iasurance fund though he is bound to keeo assets invested to make up the deficit; but such assets may be kept\"outside the life insurance fund.\n\nNow we come to the last question whether there is anything in the Act which requires that we should give a different meaning to the words \"life insurance fund\" in cl. (d) of the aforesaid 4th paragraph.\n\nWe have already referred to s. 2(10) of the Act which lays down that all other words and expressions used in the A:ct but\n\nnot defined and defined in the Insurance Act shall have the meanings respectively assigned to them in that Act. Prima facie, therefore, the words \"life insurance fund\" used in cl. (d) of the aforesaid 4th paragraph have the same meaning as in the Insurance Act, and the question is whether the context of the Act requires that we should give a different meaning to these words. We are of opinion\n\n48{\n\n\n(1965] 3 S.C.R•\n\nthat !here is nothing in the context of the Act which requires that a different meaning should be given to these words. If anything,\n\nthe Act shows that these words have the same meaning in cl. (d) of the aforesaid 4th paragraph as in the Insurance Act.\n\nIn the first place we have to see what is the reason for the provision in cl .. (d) of the aforesaid 4th paragraph. We have no doubt that the provision in cl. (d) is related to the provision in s. 49(1) of the Insurance Act. We have already referred to that\n\nsection and it requires that 92! % of the surplus in form I shall be kept for the policy-holders.\n\nWhere therefore there is surplus in form I. 92! per centum thereof is meant for the policy-holders under this provision. Secondly when transfer of life insurance\n\nbusiness from the life insurance companies to the Life Insurance Corporation took place a provision had to be made to carry out the effect of s. 49(1) in connection with the transfer. That provi-. sion is to be found in cl. (d).\n\nIt lays down that where there i! a surplus in the life insurance fund as a result of the actuarial\n\nvaluation of policy liabilities made under cl. (b) of the aforesaid paragraph 4, 96 per centum of such surplus shall be shown as a liability. This means that just as under s. 49(1), 92! per centum of the surplus in form I was meant for the policy-holders so in the case of transfer, 96 per centum or that surplus shall go to the\n\nLife Insurance Corpora, ti on in order to meet . the liabilities arising under s. 49 (!) of the Insurance Act for past surplus and to that extent the compensation to be paid to the insurance company from which the Life Insurance Corporation was taking over business would have to be reduced. This was with reference to the past and could not be with reference to the future, for so far as the future was concerned, the Life Insurance Corporation alone was responsible.\n\nBut if there was a deficit in form I of the insurance company which was being taken over by the Life Insurance Corporation there could be no allocation to the policy-holders under s. 49(1) of the Insurance Act and there would be no liability for the past. So there would be no liability for the past under cl. (d) on the insurer whose business was being taken over by the Life Insurance Corporation. In the present case admittedly there was no surplus in form I in the case of the respondent and therefore ' there would be no liability on the respondent under cl. (d) of the\n\naforesaid 4th paragraph. This in our opinion is the rationale behind the provision in cl. (d) and as there was always a deficit in\n\nconnection with the working of the respondent, there could be no liability on the respondent under cl. (d).\n\nBut apart from this rationale behind cl. (d) we find that the language of Part A and Part B of the First Schedule relating to principles for determining compensation also leads to the same inference. Part A provides that compensation to be given to an insurer having a share capital on which dividend or bonus is payable who has allocated as bonm1 to policy-holders the whole or any\n\npart of the surplus as disclosed in the abstracts prepared in accordance with Part II of the Fourth Schedule to the Insurance Act in\n\nL. r. c.\n\nCROWN INSURANCE (Wanchoo, J.) 485\n\nrespect of the last actuarial investigation relating to his controlled business as at a date earlier than January l, 1955 shall be computed under that part. Clearly therefore this provision in Part A refers to surplus to be found by looking at fonn I of the Fourth Schedule to the Insurance Act. Part B of the First Schedule to the Act then speaks of compensation to be given to an insurer having a share capital on which dividend or bonus is payable but who has not made any such allocation as is referred to in Part A. This immediately brings in the opening words of Part A and shows that Part\n\nB applies also to those insurers who having a surplus in form I have not allocated the whole or any part of such surplus to policyholders. The surplus in form I is arrived at as already indicated when the life insurance fund is larger than the liabilities on the policies still to mature. Clearly, Part B provides how compensation is to be paid to companies who had no surplus as disclosed in form I of the Fourth Schedule to the Insurance Act or who if they had any surplus in that form had made no allocation to policy-holders. Therefore when cl. (d) of the aforesaid 4th paragraph speaks of the life insurance fund being in surplus that surplus has to be determined in accordance with form I of the Fourth Schedule to the Insurance Act subject to modifications indicated in\n\nPart B in the matter of valuation under form H and not in the manner suggested on behalf of the appellant. The word \"surplus\" in cl. (d) cannot have a meaning different from what it has in the opening words of Part B which come therein from Part A. The context therefore instead of showing that there is any other meaning of the words \"life insurance fund\" in cl. (d) shows that they have the same meaning in that clause as in form I of the Fourth Schedule to the Insurance Act.\n\nAnother reason which points to the same conclusion, namely, that the words \"life insurance fund\" in cl. (d) have the same meaning as in form I of the Fourth Schedule to the Insurance Act, is to be found in s. 35(1) and (2) of the Act. Section 35(1) permits a foreign insurer to repatriate certain assets. It says that an insurer incorporated outside India may, before the appointed day, make an application to the Central Government stating that among the assets appertaining to the controlled business of the insurer there are assets brought into India by him for the purpose of building up his life insurance business in India which should not be transferred to and vested in the Life Insurance Corporation. On receipt of such an application, the Central Government has to determine the value of the assets of the insurer appertaining to his controlled business in existence on December 31, 1955 in accordance with the provisions contained in paragraph 3 of Part B of the First Schedule to the Act and deduct therefrom the total amount of the liabilities of the insurer appertaining to his controlled business as on December 31, 1955 computed in accordance with the provisions contained in the Second Schedule to the Act; and if there is any excess, the Central Government may direct that such assets equivalent in valne to the excess shall not be transferred to or vested in\n\ni86 SUPREME Cj)URT .RRPORTS\n\n(1965] 3 8.C.R,\n\nthe Life Insurance Corporation. It is obvious from these provi- A sions that where the legislature intended to refer to all the assets and liabilities it said so in terms and did not use the words \"life insurance fund\".\n\nThe use of the words \"life insurance fund\" in\n\ncl. (d) of the aforesaid 4th paragraph therehre must have the special significance assigned to these words in <he Insurance Act and cannot be equated to the difference between the total assets B and liabilities apart from liabilities towards policies yet to mature.\n\nBesides we are of opinion that if the words \"life insurance fund\" in cl. (d) are to be given the meaning for which the appellant is contending there will be a clear inconsistency between cl. (d) and\n\n35 of the Act. Section 35 permits a foreign insurer to take away what may be called excess assets but a foreign insurer is not bound 0 to make an application under s. 35.\n\nNow take the case of the reapondeut.\n\nIt is not in dispute that the respondent has taken away excess assets with the permission of the Central Government\n\nunder s. 35, to the tune of about rupees fifteen or sixteen lakhs. 3ut if the respondent had not chosen to make the application under\n\ni. 35, all his assets would have to be considered under Part B Drclating to compensation. It that was so. according to the contention put forward on behalf of the appellant as to the meaning of the words \"life insurance fund\", the total compensation under Part B of the First Schedule to which the respondent would have been entitled, would be Rs. 1,74,408. This means that as by making an application the respondent was able to take away B Rs. 15,73,540 under s. 35(2) he would further get Rs. 1, ll,466 as compensation under Part B of the First Schedule to the Act. But\n\nil he had not made the application under s. 35, he would only get Rs. \"t,74,408 in all. There is no doubt that the legislature could not have intended such a result, namely, that the insurer should get away with a much larger amount if he applies under s. 35 and F should get a much smaller amount if he does not choose to apply\n\nunder s. 35.\n\nOn the other .hand, if we accept the contention of the respondent as to the meaning of the words \"life insurance fund\" it would make no difference to the compensation whether the insurer applies under s. 35 or not.\n\nWe must hold that the legislature intended that in either case an insurer would get the same G amount whether it comes to him as compensation in one sum or comes to him as compensation plus repatriation of excess assets. lf the words \"life insurance fund\" are interpreted to mean what the respondent says, t.he result would be this. If it applies for repatriation it would get Rs. 15,73,540 as repatriation of excess assets and Rs. 27,86,658 as compensation under Part B: total H Rs. 43,60,198. If it does 'not apply for repatriation and if cl. (d) has the meaning urged on behalf of the respondent, its total compensation would come to the same figure, namely, Rs. 43,60,198.\n\nThis clearly shows that the legislature intended the words \"life insurance fund\" to mean what they meant in s. I 0(2) for that would give in our opinion the same result whether an insurer applied under s. 35 or not.\n\nL. l. ('. V. CRU\\'i'.\\' 1N;.iUJ\\.ANCI; ( Jlf.a.ttcl,(, J, J .) 187\n\nWe have already said that cl. (d) provides for past surplus in form [, the responsibility for which passes on to the Life Insurance Corporation when it takes over the life business of an insurer.\n\nSo fiir as the future is concerned, cl. (b) of the aforesaid 4th paragraph provides for a higher valuation for with-profits policies with\n\nthe result that the liability which the insurer whose business is being taken over has to bear with respect to with-profits policies is higher. The appellant apparently claimed an amount under cl.\n\n(d) on the ground that at future valuation the bonus payable to the policy-holders would be reduced.\n\nNow cl. (d) in our opinion provides for cases where there have been surpluses in the past while the provision for the future in respect of profit policies is to be found in cl. (b).\n\nThe appellant therefore cannot lay claim to anything under cl. (d) unless there were surpluses in the past in form I of the Fourth Schedule to the Insurance Act. The contention that the appellant is likely to suffer if the meaning contended for by the respondent is given to the words \"life insurance fund\",\n\nparticularly with respect to with-profit policies has in the circumstances no force, for there is already a weightage in favour of calculating liability for with-profit policies under cl. (b) of the 4tt\n\nparagraph of Part B of the First Schedule to the Act.\n\nLastly there will be another curious result if the words \"life insurance fund\" in cl. (d) is given the meaning contended for on behalf of the appellant. Take the case of an Indian company which has shares but which has always been showing deficit in form I of the Fourth Schedule to the Insurance Act. If life insurance fund for the purposes of cl. (d) is calculated in the manner contended for on behalf of the appellant the result would be that the share capital of such a company would also come into the assets and if as a result of the share capital going into assets the deficit in form I is converted into surplus such a company would in conceivable circumstances lose 96 per centum of its share capital as if it was part of the life insurance fund. It is obvious that the share capital of an insurance company cannot be a part of the life\n\ninsurance fund; but on the interpretation urged on behalf of the appellant even 96 of the share capital may be lost to an insurance company, whose business is being taken over by the Life Insurance Corpc, ration if the words \"life insurance fund\" are given the wide\n\nmeaning for which the appellant is contending. We have therefore no doubt that the tribunal was right in its conclusion that the words \"life insurance fund\" as used in cl. (d) of the aforesaid 4th\n\nhave the same meaning as that given to them in s. I 0(2) of the Insurance Act read with s. 11 and form D of the Third Schedule to the Insurance Act.\n\nIn this view of the matter the appeal must fail. '\n\nWe therefore dismiss the appeal with costs to the respondent.\n\nThe ; espondent will be at liberty to withdraw the money deposited\n\nin tl11s Court towards compensation.\n\nAppeal dismissed.", "total_entities": 199, "entities": [{"text": "LIFE INSURANCE CORPORATION OF INDIA", "label": "PETITIONER", "start_char": 0, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "LIFE INSURANCE CORPORATION OF INDIA", "offset_not_found": false}}, {"text": "March 26, 1965", "label": "DATE", "start_char": 51, "end_char": 65, "source": "ner", "metadata": {"in_sentence": "March 26, 1965 [K. N. WANCHOO, J. R. MuDHOLKAR AND S. M. SIKRI, JJ.J\n\nLife Insurance Corporation Act (31 of 1956), First Schedule, Pa.rt B, Para 4, cl. ("}}, {"text": "K. N. WANCHOO, J.", "label": "JUDGE", "start_char": 67, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO*", "offset_not_found": false}}, {"text": "R. MuDHOLKAR", "label": "JUDGE", "start_char": 85, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "S. M. SIKRI, JJ", "label": "JUDGE", "start_char": 102, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Life Insurance Corporation Act", "label": "STATUTE", "start_char": 121, "end_char": 151, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 166, "end_char": 180, "source": "regex", "metadata": {"linked_statute_text": "Life Insurance Corporation Act", "statute": "Life Insurance Corporation Act"}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 211, "end_char": 224, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 238, "end_char": 246, "source": "regex", "metadata": {"linked_statute_text": "Life Insurance Corporation Act", "statute": "Life Insurance Corporation Act"}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 293, "end_char": 301, "source": "regex", "metadata": {"linked_statute_text": "Life Insurance Corporation Act", "statute": "Life Insurance Corporation Act"}}, {"text": "Insurance Act, 1938", "label": "STATUTE", "start_char": 309, "end_char": 328, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 11", "label": "PROVISION", "start_char": 505, "end_char": 515, "source": "regex", "metadata": {"linked_statute_text": "the Insurance Act, 1938", "statute": "the Insurance Act, 1938"}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 577, "end_char": 591, "source": "regex", "metadata": {"linked_statute_text": "the Insurance Act, 1938", "statute": "the Insurance Act, 1938"}}, {"text": "Form I of the Fourth Schedule to the Insurance Act", "label": "STATUTE", "start_char": 1035, "end_char": 1085, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 49(1)", "label": "PROVISION", "start_char": 1308, "end_char": 1316, "source": "regex", "metadata": {"linked_statute_text": "Form I of the Fourth Schedule to the Insurance Act", "statute": "Form I of the Fourth Schedule to the Insurance Act"}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 1324, "end_char": 1337, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Life Insurance Corporation", "label": "ORG", "start_char": 1553, "end_char": 1579, "source": "ner", "metadata": {"in_sentence": "When transfer of life insurance business from\n\nthe life insurance companies to the Life Insurance Corporation took place, a provision had to be made for carrying out the effect of s.49(1)."}}, {"text": "s.49(1)", "label": "PROVISION", "start_char": 1650, "end_char": 1657, "source": "regex", "metadata": {"linked_statute_text": "Form I of the Fourth Schedule to the Insurance Act", "statute": "Form I of the Fourth Schedule to the Insurance Act"}}, {"text": "Part B of the First Schedule to the Life Insurance Corporation Act, 1956", "label": "STATUTE", "start_char": 1711, "end_char": 1783, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s.49(1)", "label": "PROVISION", "start_char": 2560, "end_char": 2567, "source": "regex", "metadata": {"linked_statute_text": "Part B of the First Schedule to the Life Insurance Corporation Act, 1956", "statute": "Part B of the First Schedule to the Life Insurance Corporation Act, 1956"}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 2575, "end_char": 2588, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Canada", "label": "GPE", "start_char": 2735, "end_char": 2741, "source": "ner", "metadata": {"in_sentence": "On the taking over of 1 he business of the respondent, a life insu ranee company incorporated in Canada, by the appellants, under the Life Insurance Corporation Act, the respondent claimed Rs."}}, {"text": "Life Insurance Corporation Act", "label": "STATUTE", "start_char": 2772, "end_char": 2802, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 3000, "end_char": 3013, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 3785, "end_char": 3798, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 4038, "end_char": 4051, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 10(2), 11 and 13", "label": "PROVISION", "start_char": 4136, "end_char": 4156, "source": "regex", "metadata": {"statute": null}}, {"text": "Act and Form D cf the Third Schedule and Form I of the Fourth Schedule to the Insurance Act", "label": "STATUTE", "start_char": 4174, "end_char": 4265, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 56(2) and 58(3)", "label": "PROVISION", "start_char": 4508, "end_char": 4527, "source": "regex", "metadata": {"linked_statute_text": "Act and Form D cf the Third Schedule and Form I of the Fourth Schedule to the Insurance Act", "statute": "Act and Form D cf the Third Schedule and Form I of the Fourth Schedule to the Insurance Act"}}, {"text": "Part I of the First Schedule to the Insurance Act", "label": "STATUTE", "start_char": 4552, "end_char": 4601, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 56(2)", "label": "PROVISION", "start_char": 4652, "end_char": 4660, "source": "regex", "metadata": {"linked_statute_text": "Part I of the First Schedule to the Insurance Act", "statute": "Part I of the First Schedule to the Insurance Act"}}, {"text": "s 58", "label": "PROVISION", "start_char": 4787, "end_char": 4791, "source": "regex", "metadata": {"linked_statute_text": "Part I of the First Schedule to the Insurance Act", "statute": "Part I of the First Schedule to the Insurance Act"}}, {"text": "s. 27(1)", "label": "PROVISION", "start_char": 4969, "end_char": 4977, "source": "regex", "metadata": {"linked_statute_text": "Part I of the First Schedule to the Insurance Act", "statute": "Part I of the First Schedule to the Insurance Act"}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 4985, "end_char": 4998, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 5466, "end_char": 5479, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "India", "label": "GPE", "start_char": 5825, "end_char": 5830, "source": "ner", "metadata": {"in_sentence": "Since, in the instant c3se the business of the respondent in India had admittedlv shown a deficit in Form I, and the funds brought in by the respondent from outside to cover the deficit were never put in the revenue account, they were never made part of the life insurance fund, though\n\nthev remained vested in a trustee under s. 27 (6) of the Insurance Act."}}, {"text": "s. 27", "label": "PROVISION", "start_char": 6091, "end_char": 6096, "source": "regex", "metadata": {"statute": null}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 6108, "end_char": 6121, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 6317, "end_char": 6325, "source": "regex", "metadata": {"statute": null}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 6333, "end_char": 6346, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 11", "label": "PROVISION", "start_char": 6357, "end_char": 6362, "source": "regex", "metadata": {"statute": null}}, {"text": "Form D of the Third Schedule to the Insurance Act", "label": "STATUTE", "start_char": 6367, "end_char": 6416, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Part B of the Corporation Act", "label": "STATUTE", "start_char": 6595, "end_char": 6624, "source": "regex", "metadata": {}}, {"text": "Section 35(1)", "label": "PROVISION", "start_char": 6822, "end_char": 6835, "source": "regex", "metadata": {"linked_statute_text": "Part B of the Corporation Act", "statute": "Part B of the Corporation Act"}}, {"text": "s. 35", "label": "PROVISION", "start_char": 7257, "end_char": 7262, "source": "regex", "metadata": {"linked_statute_text": "Part B of the Corporation Act", "statute": "Part B of the Corporation Act"}}, {"text": "s. 35", "label": "PROVISION", "start_char": 7380, "end_char": 7385, "source": "regex", "metadata": {"linked_statute_text": "Part B of the Corporation Act", "statute": "Part B of the Corporation Act"}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 8031, "end_char": 8045, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, S. !."}}, {"text": "S. !. Banaji", "label": "LAWYER", "start_char": 8065, "end_char": 8077, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, S. !."}}, {"text": "Atiquor Rehman", "label": "LAWYER", "start_char": 8079, "end_char": 8093, "source": "ner", "metadata": {"in_sentence": "Banaji, Atiquor Rehman and K. L. Hathi, for the appellant."}}, {"text": "K. L. Hathi", "label": "LAWYER", "start_char": 8098, "end_char": 8109, "source": "ner", "metadata": {"in_sentence": "Banaji, Atiquor Rehman and K. L. Hathi, for the appellant."}}, {"text": "N. A. Palkhivala", "label": "JUDGE", "start_char": 8131, "end_char": 8147, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhivala, S. !."}}, {"text": "S. !. Sorabjee", "label": "JUDGE", "start_char": 8149, "end_char": 8163, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhivala, S. !."}}, {"text": "B. Dadachanji", "label": "LAWYER", "start_char": 8168, "end_char": 8181, "source": "ner", "metadata": {"in_sentence": "Sorabjee, J. B. Dadachanji, 0."}}, {"text": "C.\n\nMathur", "label": "LAWYER", "start_char": 8186, "end_char": 8196, "source": "ner", "metadata": {"in_sentence": "C.\n\nMathur and Ravinder Narain, for the respondent."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 8201, "end_char": 8216, "source": "ner", "metadata": {"in_sentence": "C.\n\nMathur and Ravinder Narain, for the respondent."}}, {"text": "D\n\nWanchoo", "label": "JUDGE", "start_char": 8283, "end_char": 8293, "source": "ner", "metadata": {"in_sentence": "Judgment of the Court was delivered by D\n\nWanchoo J. The only question that arises for determination in this appeal by special leave from the order of the Life Insurance Tribunal, Bombay, is the interpretation of the words \"life insurance fund\" as used in paragraph 4 of Part B of the First Schedule to the Life Insurance Corporation Act, No.", "canonical_name": "D\n\nWanchoo"}}, {"text": "Part B of the First Schedule to the Life Insurance Corporation Act", "label": "STATUTE", "start_char": 8515, "end_char": 8581, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Crown Life Insurance Co", "label": "RESPONDENT", "start_char": 8730, "end_char": 8753, "source": "metadata", "metadata": {"canonical_name": "CROWN LIFE INSURANCE CO", "offset_not_found": true}}, {"text": "Life Insurance Corporation of India", "label": "ORG", "start_char": 8816, "end_char": 8851, "source": "ner", "metadata": {"in_sentence": "The question arose in connection with the pay- E ment of compensation to the respondent, the Crown Life Insurance Company, which is incorporated in Canada,' by the appellant, the Life Insurance Corporation of India on the taking over of the business of the respondent by the appellant under the Act."}}, {"text": "Part B of the First Schedule to the Act", "label": "STATUTE", "start_char": 9215, "end_char": 9254, "source": "regex", "metadata": {}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 9871, "end_char": 9884, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 9932, "end_char": 9945, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Fourth Schedule", "label": "PROVISION", "start_char": 10058, "end_char": 10073, "source": "regex", "metadata": {"linked_statute_text": "Part B of the First Schedule to the Act", "statute": "Part B of the First Schedule to the Act"}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 10082, "end_char": 10095, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 10310, "end_char": 10317, "source": "ner", "metadata": {"in_sentence": "It is this difference in the meaning assigned to the words \"life insurance fund\" by the parties\n\nH I\n\nL. I. c. v. CROWN INSURANCFJ (Wanchoo, J.) H7\n\nthat is responsible for the large difference in the amount claimed by the respondent and offered by the appellant.", "canonical_name": "D\n\nWanchoo"}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 10651, "end_char": 10664, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 10720, "end_char": 10733, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 11184, "end_char": 11197, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2", "label": "PROVISION", "start_char": 11251, "end_char": 11255, "source": "regex", "metadata": {"statute": null}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 11430, "end_char": 11443, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 11584, "end_char": 11597, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 11755, "end_char": 11768, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 11860, "end_char": 11873, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 11922, "end_char": 11935, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 11968, "end_char": 11981, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "have therefore to turn to F the Insurance Act", "label": "STATUTE", "start_char": 12025, "end_char": 12070, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 12415, "end_char": 12428, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Let us therefore turn to the Insurance Act", "label": "STATUTE", "start_char": 12433, "end_char": 12475, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 13080, "end_char": 13093, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 13288, "end_char": 13301, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10", "label": "PROVISION", "start_char": 13368, "end_char": 13373, "source": "regex", "metadata": {"linked_statute_text": "Let us therefore turn to the Insurance Act", "statute": "Let us therefore turn to the Insurance Act"}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 13381, "end_char": 13394, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 13476, "end_char": 13489, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 13817, "end_char": 13830, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 10(2)", "label": "PROVISION", "start_char": 14011, "end_char": 14024, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 11", "label": "PROVISION", "start_char": 15433, "end_char": 15443, "source": "regex", "metadata": {"statute": null}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 15509, "end_char": 15523, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 15620, "end_char": 15628, "source": "regex", "metadata": {"statute": null}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 15661, "end_char": 15675, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 17156, "end_char": 17170, "source": "regex", "metadata": {"statute": null}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 17178, "end_char": 17191, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 17244, "end_char": 17252, "source": "regex", "metadata": {"statute": null}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 17399, "end_char": 17412, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 11", "label": "PROVISION", "start_char": 17475, "end_char": 17480, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 17879, "end_char": 17887, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 17889, "end_char": 17894, "source": "regex", "metadata": {"statute": null}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 18190, "end_char": 18203, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 13(1)", "label": "PROVISION", "start_char": 18489, "end_char": 18497, "source": "regex", "metadata": {"statute": null}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 18505, "end_char": 18518, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Fourth Schedule", "label": "PROVISION", "start_char": 18658, "end_char": 18673, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 49(1)", "label": "PROVISION", "start_char": 19180, "end_char": 19193, "source": "regex", "metadata": {"statute": null}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 19201, "end_char": 19214, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Fourth Schedule", "label": "PROVISION", "start_char": 19454, "end_char": 19469, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPREME COURT (1965] 3 s.c.n", "label": "COURT", "start_char": 19471, "end_char": 19499, "source": "ner", "metadata": {"in_sentence": "Section 49(1) of the Insurance Act then provides that no amount of the life insurance fund wiH be used to pay any div; dend to share-holders or any bonus to policyholrlers or for making any payment in service of anv debenture unles' valuation balance sheet in form I of the Fourth Schedule\n\nSUPREME COURT (1965] 3 s.c.n."}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 20095, "end_char": 20103, "source": "regex", "metadata": {"statute": null}}, {"text": "Insurance Act", "label": 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insurer with the approval of the Central Government and shall ."}}, {"text": "State Bank of India", "label": "ORG", "start_char": 28750, "end_char": 28769, "source": "ner", "metadata": {"in_sentence": "Such an instrument of trust was executed by the respondent and the State Bank of India was the trustee of the fund required to be kept under s. 27(1) read with s. 27(6)."}}, {"text": "s. 27(1)", "label": "PROVISION", "start_char": 28824, "end_char": 28832, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27(6)", "label": "PROVISION", "start_char": 28843, "end_char": 28851, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 28966, "end_char": 28974, "source": "regex", "metadata": {"statute": null}}, {"text": "Wanclwo", "label": "JUDGE", "start_char": 29450, "end_char": 29457, "source": "ner", "metadata": {"in_sentence": "It is not iti dispute that in this case funds brought in by the respondent from outside to cover the deficit were never put in the revenue account and were never made part of the life insurance fund, though\n\nL. I. c. \"· CROWN INSURAKCE (Wanclwo, J.) 483\n\nthey remained vestd in the trustee for the purpose of."}}, {"text": "s. 27(1)", "label": "PROVISION", "start_char": 29523, "end_char": 29531, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 29681, "end_char": 29695, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 30198, "end_char": 30212, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27(1)", "label": "PROVISION", "start_char": 30716, "end_char": 30724, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27(1)", "label": "PROVISION", "start_char": 30786, "end_char": 30794, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27(1)", "label": "PROVISION", "start_char": 31112, "end_char": 31120, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27(1)", "label": "PROVISION", "start_char": 31351, "end_char": 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38080, "end_char": 38093, "source": "regex", "metadata": {"statute": null}}, {"text": "December 31, 1955", "label": "DATE", "start_char": 38725, "end_char": 38742, "source": "ner", "metadata": {"in_sentence": "On receipt of such an application, the Central Government has to determine the value of the assets of the insurer appertaining to his controlled business in existence on December 31, 1955 in accordance with the provisions contained in paragraph 3 of Part B of the First Schedule to the Act and deduct therefrom the total amount of the liabilities of the insurer appertaining to his controlled business as on December 31, 1955 computed in accordance with the provisions contained in the Second Schedule to the Act; and if there is any excess, the Central Government may direct that such assets equivalent in valne to the excess shall not be transferred to or vested in\n\ni86 SUPREME Cj)URT .RRPORTS\n\n(1965] 3 8.C.R,\n\nthe Life Insurance Corporation."}}, {"text": "Part B of the First 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{"document_id": "1965_3_47_52_EN", "year": 1965, "text": "AJOY KUMAR MUKHERJEE\n\nLOCAL BOARD OF BARPETA\n\nFebruary, 11, 1965\n\nIP. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, M. HIDAYATULLAH,\n\nJ. C. SlrAH AND S. M. SIKRI JJ ]\n\nAssam Local Self Governmemt Act 1953, (Act 25 of 1953), s. 62- Tax-Whether on land used for market or on market-State leaillature, competence-Constitution of India Seventh Schedule, List II\n\nEntry 49-Interpretation-Discrimination-Allegations-Burden of prJOJ.\n\nThe appellant as a lund-holder held a hat or market on his land.\n\nThe respondent, the local board, within whose jurisdiction the market was held, issued notice to the appel!lant to take out 'I licence and pay a certain suni as licence fee for holding the market. Inspite of the continued protests of the appellant against the levy, the amount was sought to be recovered by the issue of distres! warrants and attachment of his property. The appellant filed a writ petition in the High Court challenging on a number of grounds, the constitutionality of the impost, which was dismissed. In appeal by certificate the appellant contended that (i) the Assam Legislature had no legislative competence to tax markets, and (ii) the tax actually imposed on this market infringed Art. 14 of the Constitution, because the Loard fixed a higher rate for the appellant's market as compared with other neighbouring markets. ·\n\nHELD: (i) The tax in the present case being on land within the meaning of Entry 49 .of List II of the Seventh Schedule of the Constitution, would clearly be within the competence of the State Legislature. r 49 E-Cl\n\nThe Scheme of s. 62 of the Assam Local Self Government Act, 1953 shows that the tax provided therein is a tax on land, though its incidence depends upon the use of the land as a market and the owner, occupier or farmer of that land has to pay a certain tax for\n\nits use as such. But there is no tax on the transaction that may take\n\nplar~ within the market. Further the amount of tax depends upon the area of the land on which the market is held and the importance of the market subject to a maximum fixed by the State Government.\n\nSectic n 62(2) which used the words \"impose an annual tax thereon\" clearly shows that the word \"thereon\" refers to any land for which a licence is issued for use as a market and not to the word \"market\".\n\nThe use to which the land is put can be taken into .account in imposing a tax on it within the meaning of entry 49 of thtl'List II. Ral!a Ram\n\nv. The Province of East Punjab, P9481 F.C.R. 207, applied. [51 C-F]\n\n(ii) It was for the appellant to show that in fixing the tax 0.11. the other markets as it did, the board acted arbitrarily and did not take into account 'the size and importance of the markets. As there was no material by which the relative size and imoortance of those markets, could be judged. it was not possible to hold that there was discrimination in taxing this market. r52 F-Gl\n\nCIVIL APPELLATE JURISDfCTION: Civil Appeal No. 630 of 1963.\n\nAppeal from the judgment and order dated June 8, 1959 of A the Assam High Court in Civil Rule No. 42 of 1957.\n\nD. N. Mukherjee, for the appellant.\n\nNaunit Lal, for the respondent No. 3.\n\nThe Judgment of the Court was delivered by Wanchoo, J. This appeal on a certificate granted by the Assam B High Court raises the question of the constitutionality of an annual tax levied by local boards for the use of any land for the purpose of holding markets as provided by s. 62 of the Assam Local Self-Government Act, No. XXV cf 1953, (hereinafter ceferred to as the Act). Th~ ap.pellant is a landholder in the district of Kamrup. As such landholder, he holds a hat or market on his C land since the year 1936 and this market is known as Kharma hat.\n\nJn 1953-54, the local board of Barpeta, within whose jurisdiction the Kharma market is held, issued notice to the appellant to take out a licence and pay Rs. 600/- for the year 1953-54 as licence-fee for holding the market. Later this sum was increased to Rs. 700 f - for the year 1955-56. The appellant continued ;>rotesting against D this levy but no heed was paid to his protests and the amount was sought to be recovered by issue of distress warrants and attachment of his property. Consequently, the appellant filed a writ petition in the High Court challenging the constitutionality of the impost on a number of grounds. In the present appeal two main con-\n\nJ!! tentions have been urged in support of the appellant's case that the impost is unconstitutional, namely, (i) that the Assam legislature had no legislative competence to tax markets, and (ii) that the tax actually imposed on the Kharma market infringes Art. 14 of the Constiiution. We shall therefore consider these two contentions only. r This attack on behalf of the appellant is met by the respondent by relying on. item 49 of List II of the Seventh Schedule to the Constitution, and it is urged that the State legislature was competent to impose the tax under that entry, for this was a tax on land.\n\nAs to Art. 14, the reply on behalf of the respondent is that under s. 62 of the Act, a rule has been framed prescribing Rs. 1000 I - as & the maximum amount of tax which may be levied by any local toard in Assam on markets licensed under that section. The rule also provides that any locai board may with the previous approval of Government impose a tax within this maximum according to the size and importance of a market. So it is submitted that the tax has been imposed by Barpeta local board in accordance with K this rule, and the appellant has failed to show that there has been any discrimination in the fixation of the amount of tax on the Kharma market.\n\nThe High Court repelled the contentions raised on behalf of the appellant and dismissed the writ petition. As however, questions of .constitutional jmportance were involved, the High Court\n\nAJUY KUMAR v. LOCAL BOARD (Wanchoo, J.) 41>\n\nA ?\"anted a certificate under Art. 132 of the Constitution; and that t5 how the matter has come up before us.\n\nThe first question which falls for consideration therefore is whether the impost in the present case is a tax on land within the meaning of entry 49 of List II of the Seventh Schedule to the Constir B tution. It is well-settled that the entries in the three legislative lists have to oe interpreted in their widest amplitude and therefore ii a tax can reasonably be held to be a tax on land it will come within entry 49. Further it is equally well-settled that tax on land may be based on the annual value of tqe land and would still be a tax 011 land and would not be beyond the competence of the State legi!- C lature on the ground that it is a tax on income: (see Ralla Ram v.\n\nThe Province of East Punjab('). It follows therefore that the use to which the land is put can be taken into account in imposing a tax on it within the meaning of entry 49 of List II, for the annual value of land which can certainly be taken into account.in imposing a tax for the purpose of this entry would necessarily depend upon D the use to which the land is put. It is in the light of this settled proposition that we have to examine the scheme of s. 62 of the Act, which imposes the tax under challenge. • It is necessary therefore to analyse the scheme of s. 62 which provides for this tax. Section 62(1) inter alia lays down that the !l local board may order that no land shall be used as a market otherwise than under a licence to be granted by the board. Sub-section (2) of s. 62 is the charging provision and may be quoted in full :\n\n\"On the issue of an order as in sub-section (!), the board at a meeting may grant within the local limits of its 1urisdiction a licence for the use of any land as a market I' and impose an annual tax thereon and such conditions as prescribed by rules.\" Sub-section (3) provides that when it has been determined that a tax shall be imposed under the preceding sub-section, the local board shall make an order that the owner of any land used as a market\n\n6 specified in the order shall take out a licence for the purpose. Such order shall specify the tax not exceeding such amount as may be prescril5ed by rule, which shall be charged for the financial year.\n\nIt will be seen from the provisions of these three sub-sections that power of the board to impose the tax arises on its passing a resolution that no land within its jurisdiction shall be used as a B market. Such resolution clearly affects land within the jurisdiction of the board and on the passing of such a resolution the hoard gets the further power to issue licences for holding of markets on lands within its jurisdiction by a resolution and al.so the nower to impose an annual tax thereon. Now it is urged on behalf of the appellant that when sub-s . (2) speaks of imposing of \"an .mnual\n\n(') (1948) F.C.R. 207.\n\ntax thereon\" it means the imposition of an annuaL tax on the A market, and that there is no provision in List II of the Seventh Schedule for a tax on markets as such. \"Markets and fairs\" appear at item 28 of List 11, and it is urged that under item 66 of the same List, fees with respect to markets and fairs can be imposed; but there is no provision for imposing a tax on markets in the entries rrom 45 to 63 which deal with taxes. It may be accepted B that there is no entry in List II which provides for taxes as wch on markets and fairs. It may also be accepted that entry 66 will only justify the imposition of fees on markets and fairs which would necessitate the providing of services by the board imposing the fees as a quid pro quo. That however, does not conclude the matter, for the contention on behalf of the State is that C tax under s. 62 is on land and not on the market and further the tax depends upon the use of the land as a market. It seems to us on a close reading of sub-s. (2) that when that sub-section speaks\n\nof \"annµal tax thereon\", the tax is on the land but the .:barge arises only when the land is used for a market. This will also be D clear from the subsequent provisions of s. 62 which show that the tax is on land though its imoosiiion depends upon user of the land as a market. Sub-section (3) shows that as soon as sub-s. (!) and (2) are complied with, the local board shall make an order that the owner of any land used as a market shall take out the licence. Thus the tax is on the land and it is the owner of the E land who has to take out the licence for its use as a market.\n\nThe form of the tax i.e. its being an annual tax as contrasted to a tax for each day on which the market is held also shows that in essence the tax is on land and not on the market held thereon.\n\nFurther the tax is not imposed on any transactions in the market by persons who come there for business which again shows that Y\n\nit is an impost on land and not on the market i.e. on the business therein. Then sub-s (5) provides that the tax shall be paid by the owner of any land used as a market. which again shows that it is on the land that the tax is levied, though the charge arises when it is used as a market. Sub-section (6) then lays down that on receiving the amount so fixed the board shall issue a licence to the person paying .the same. Here again the licence is for the use of\n\nthe land. Then comes sub-s. (8) which provides that whcever, being the owner or occupier of any land uses or permits the same to b~ used as a market without a licence shall be liable to fine. This provision clearly shows that the tax is on the land and it is the H owner or occupier of the land who is responsible and is liable to prosecution if he fails to take out a licence. No liability of any kind is thrown on those who come to the market for the purpose of trade. Sub-section (9) then lays down that wliere a conviction has been obtained under sub-s. (8), the District Magistrate or the Sub Divisional Officer, as the case may be, may stbp the use of the land as a market. Sub-section (] 0) then provides that every\n\n' AJOY KUMAR v. LOCAL BOARD (W anchoo, J.) 51\n\nA owner, occupier or tanner of a market shall cause such drain to be made therein and take all necessary steps to keep such market in a clean and wholesome state and shall cause supply of sufficient water for the purpose as well as for drinking purpose. Subsections (1 I) and (12) give power to the board on the failure of any owner, occupier or fartner to comply with a notice under sub- B s. (10), to take possession of the land and the market thereon and execute die works itself and receive all rents, tolls and other dues in respect of the market. This will again show that the tax provided by s. 62(2) is a tax for the use of the land and it is not a tax on the market as such, for the income from the market in the shape of tools, rents and other dues is not liable to tax under s. 62 and is differ- C ent from tax. The scheme of s. 62 therefore shows that whenever any land is :used for the purpose of holding a market, the owner, occupier or farmer of that land has to pay a certain tax for its use as such. But there is no tax on any transaction that may take place within the market. Further. the amount of tax depends upon D the area of the land on which market is held and the importance of the market subject to a maximum fixed by the State Government. We have therefore no hesitation in coming to the conclusion on a consideration of the scheme of s. 62 of the Act that the tax provided therein is a tax on land, though its incidence depends upon the use of the land as a market. Further as we have already B indicated s. 62(2) which uses the words \"impose an annual tax\n\nthereon\" clearly shows that the word \"thereon\" refers to any land for which a licence is issued for use as a market and not to the word \"market\". Thus the tax in the present case being on land would clearly be within the competence of the State legislature.\n\nThe contention of the appellant that the State legislature was not p competent to impose this tax because there is no provision in List II of the Seventh Schedule for imposing a tax on markets as such must therefore fail.\n\nThen we come to the contention under Art. 14 of the Constitution. As to that it is well-settled that it is for the person who alleges G that equality before law has been infringed to show that such really is the case. It was therefore for the appellant to produce facts and figures from which it can be inferred that the tax imposed in the present case is hit by Art. 14 of the Constitution. In that connection, all that the appellant has stated in his writ petition is that the board fixed a high rate arbitrarily and thus discriminated ngainst B the appellant's market as against the other neighbouring markets where the tax had been fixed at a much lower rate, and that this was hit by Art. 14. There was certainly an allegation by the appellant that Art. 14 had been infringed; but that allegation is vague and gives no facts and figures fqr holding tliat the tax imposed on the Khanna market was discriminatory. It appears that the tax was imposed for the year 1953-54, which was continued later on, with some modifications. At that time there were five\n\nmarkets on which the tax was imposed including the Khanna A market. The lowest tax was at Rs. 400 /- on two markets, then at Rs .. 500/- on the third market and at Rs. 600/- on the Khanna market and fina!l y at Rs. 1000 /- on the fifth market.\n\nRule 300(2), framed in accordance with s. 63(3) runs thus:-\n\n\"Rs. 1000 /- (Rupees one thousand) only per annum has been fixed as the maximum amount of tax which may be levied by the local boards in Assam on markets licimsed under section 62 of the Act.\n\nAny local board may with the previous approval of Government impose a tax within this maxim)llll according to the size and importance of a market.\" Now the rule provides that Rs. 1000 /- is the maximum tax and within that maximum the board has to graduate the tax according\n\nto the size and importance of the market. The size of the. market natur; illy takes into account the area of the land en which the market is held; the importance of the market depends upon the D number of transactions that take place there, for the larger the number of transactions the greater is 'the importance of the market. If therefore the appellant is to succeed on his plea of Art. 14 on the ground that the tax (ixea on his market was discriminatory he had to adduce facts and figures, firstly as to the size bf the lll five markets on which the tax was levied in the relevant. years and secondly as to the relative importance of these markets. J}ut no such facts and figures have been adduced on behalf of the appellant. It is true that the respondent in reply to the charge of discrimination was equally vague and merely denied that there was any arbitrary discrimination. But it was for the appellant to show r that in fixing the tax on the five markets as it did, the board acted arbitrarily and did not take into account the size and importance of the markets. As there is no material before us by which we can J'Udge the relative size and importance of the five markets, it is not possible to hold that there was discrimination in taxing Khanna market at Rs. 600 /- per year as compared to taxing the three other G markets at less than Rs. 600 /-. The attack therefore on the amount actually fixed on the ground of discrimination must fail.\n\nWe therefore dismiss the appeal with costs.\n\nAppeal dismissed.", "total_entities": 50, "entities": [{"text": "AJOY KUMAR MUKHERJEE", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "AJOY KUMAR MUKHERJEE", "offset_not_found": false}}, {"text": "LOCAL BOARD OF BARPETA", "label": "RESPONDENT", "start_char": 22, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "LOCAL BOARD OF BARPETA", "offset_not_found": false}}, {"text": "February, 11, 1965", "label": "DATE", "start_char": 46, "end_char": 64, "source": "ner", "metadata": {"in_sentence": "AJOY KUMAR MUKHERJEE\n\nLOCAL BOARD OF BARPETA\n\nFebruary, 11, 1965\n\nIP."}}, {"text": "IP. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 66, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 95, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH,\n\nJ.", "label": "JUDGE", "start_char": 110, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "S. M. SIKRI JJ", "label": "JUDGE", "start_char": 144, "end_char": 158, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Assam Local Self Governmemt Act 1953", "label": "STATUTE", "start_char": 162, "end_char": 198, "source": "regex", "metadata": {}}, {"text": "s. 62", "label": "PROVISION", "start_char": 218, "end_char": 223, "source": "regex", "metadata": {"linked_statute_text": "Assam Local Self Governmemt Act 1953", "statute": "Assam Local Self Governmemt Act 1953"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 304, "end_char": 325, "source": "regex", "metadata": {}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 326, "end_char": 342, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 1191, "end_char": 1198, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 1435, "end_char": 1451, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62", "label": "PROVISION", "start_char": 1563, "end_char": 1568, "source": "regex", "metadata": {"statute": null}}, {"text": "Assam Local Self Government Act, 1953", "label": "STATUTE", "start_char": 1576, "end_char": 1613, "source": "regex", "metadata": {}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 3058, "end_char": 3073, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee, for the appellant."}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 3095, "end_char": 3105, "source": "ner", "metadata": {"in_sentence": "Naunit Lal, for the respondent No."}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 3177, "end_char": 3184, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Wanchoo, J. This appeal on a certificate granted by the Assam B High Court raises the question of the constitutionality of an annual tax levied by local boards for the use of any land for the purpose of holding markets as provided by s. 62 of the Assam Local Self-Government Act, No."}}, {"text": "s. 62", "label": "PROVISION", "start_char": 3411, "end_char": 3416, "source": "regex", "metadata": {"statute": null}}, {"text": "Kamrup", "label": "GPE", "start_char": 3562, "end_char": 3568, "source": "ner", "metadata": {"in_sentence": "Th~ ap.pellant is a landholder in the district of Kamrup."}}, {"text": "Assam legislature", "label": "ORG", "start_char": 4476, "end_char": 4493, "source": "ner", "metadata": {"in_sentence": "tentions have been urged in support of the appellant's case that the impost is unconstitutional, namely, (i) that the Assam legislature had no legislative competence to tax markets, and (ii) that the tax actually imposed on the Kharma market infringes Art."}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 4610, "end_char": 4617, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 4802, "end_char": 4818, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 4968, "end_char": 4975, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 62", "label": "PROVISION", "start_char": 5029, "end_char": 5034, "source": "regex", "metadata": {"statute": null}}, {"text": "Assam", "label": "GPE", "start_char": 5168, "end_char": 5173, "source": "ner", "metadata": {"in_sentence": "1000 I - as & the maximum amount of tax which may be levied by any local toard in Assam on markets licensed under that section."}}, {"text": "Kharma", "label": "GPE", "start_char": 5610, "end_char": 5616, "source": "ner", "metadata": {"in_sentence": "So it is submitted that the tax has been imposed by Barpeta local board in accordance with K this rule, and the appellant has failed to show that there has been any discrimination in the fixation of the amount of tax on the Kharma market."}}, {"text": "Art. 132", "label": "PROVISION", "start_char": 5891, "end_char": 5899, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 6139, "end_char": 6155, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62", "label": "PROVISION", "start_char": 7107, "end_char": 7112, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62", "label": "PROVISION", "start_char": 7217, "end_char": 7222, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 62(1)", "label": "PROVISION", "start_char": 7252, "end_char": 7265, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62", "label": "PROVISION", "start_char": 7438, "end_char": 7443, "source": "regex", "metadata": {"statute": null}}, {"text": "(1948) F.C.R. 207", "label": "CASE_CITATION", "start_char": 8757, "end_char": 8774, "source": "regex", "metadata": {}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 8897, "end_char": 8913, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62", "label": "PROVISION", "start_char": 9625, "end_char": 9630, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62", "label": "PROVISION", "start_char": 9985, "end_char": 9990, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62(2)", "label": "PROVISION", "start_char": 12555, "end_char": 12563, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62", "label": "PROVISION", "start_char": 12742, "end_char": 12747, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62", "label": "PROVISION", "start_char": 12793, "end_char": 12798, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62", "label": "PROVISION", "start_char": 13319, "end_char": 13324, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62(2)", "label": "PROVISION", "start_char": 13490, "end_char": 13498, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 13948, "end_char": 13964, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 14062, "end_char": 14069, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 14388, "end_char": 14395, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 14714, "end_char": 14721, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 14779, "end_char": 14786, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 63(3)", "label": "PROVISION", "start_char": 15369, "end_char": 15377, "source": "regex", "metadata": {"statute": null}}, {"text": "section 62", "label": "PROVISION", "start_char": 15560, "end_char": 15570, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 16244, "end_char": 16251, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]}
{"document_id": "1965_3_488_498_EN", "year": 1965, "text": "COMMISSIONER OF INCOME-TAX, MADHYA PRADESH, A\n\nNAGPUR\n\nSETH GOVINDRAM SUGAR MILLS LTD.\n\nMarch 26, 1965\n\nJK. SUBBA RAO, J.C. SHAH ANDS. M. SIKRI, JJ.J\n\n. Partnership Act (9 of 1932), ss. 31 and 42(c)-Sco:oe of-Two joint Hindu families-Partmership between-When po.i; sfbie--!nconie-ta:c Act (11 of 1922), s. 164(1). ·\n\nA joint Hindu family consisting of two branches owned a sugar mill. After partition, the two kartas entered into a partnership in 1943. to carry on the business of the sugar mill. The two partners represented the respective joint families, and the partnership deed provided that the death of any of .the parties shall not dissolve the partnership and either the legal heir or the nominee of the deceased partner , hould take his place. One of the kartas died in 1945 leaving as memof his branch of the family, three v.1idov,1s and two minor sons.\n\nThe other partner continued the business of the sui<ar mill in the firm\n\nname. For the assessment year 1950-51, the assessee (respondent-firm) applied for registration on the basis of the partnership agreement of\n\n1943. The Income-tax Officer, Appellate Assistant Commissioner And the Tribunal held that there was no partnership between the members of the two families after the death of one of the k<iTtas. On a reference to the High Court, it was held that the partnership business wa• carried on by the representatives of the two families after the de3th of one of the kartas.\n\nIn the appeal to this Cuurt, on the question as to whether during the assessment year 1950-51, the assessee, was a flrm within the meaning of s. lR(l) of the Income-tax Act, 1922, or an association of persons,\n\nHELD: The High Court was wrong in its finding. But, as a result of the concession by the appellant, that there was a partneri:hip from 13th December 1949, when one of the minor_ sons had become a major, the status of the assessee was that of a firm for the assessment year\n\nrn5o-5L r49BBJ\n\nA joint Hindu family as such cannot be a partner of a firm, but it may through its karta enter into a partnershlp with the karta of another family. [4f15H] , Kshetra Mohan Saiiuasi Charan Sadhukhan v. Commissioner of Excess Profits Tax .. (1954] S.C.R. 268. followed.\n\nA wido\\v, though a member of a family, cannot become its manager. [ 495B] Commissivner of Income-tax. C.P. & Berar v. Seth Lakshmi Narayan Raghunathdas, (19481 16 I.T.R. 313 and Pandurang Dakhe v.\n\nPand1irang Gorle, l.L.R. (19471 NM. 299. overruled.\n\nH Therefore, in the instant case, when one of the kartas died, the partnen; hip had come to an end. There was no scope for applying s. 42(c) of the Partnership Act. 1932, because, the section is applicable only to a partnership with more than two partners. In such a case. if one of them dies, the firm is dissolved, but if there is a contract to\n\nc. I. T. v. GOVINDRAM Mll, LS (Subba, Ruo, J.) 489\n\nA the contrary, the surviving partners will continue the firm. On the\n\n'>ther hand, if there are only two partners and one of them dies, the firm automatically comes to an end and, thereafter, there ls no part. nership for a third party to be introduced.· Section 31, which deals with the validity of a contract between the partners to introduce a third party into the partnership without the consent of all the existing partners, presupposes the subsistence of a partnership and does B not cpply to a partnership of two partners. which is dissolved by\n\nthe death of one of them. [ 492E-H]\n\nHansraj Manot v. Me'8rs. Gorak NOJth Pandey, (1961) 66 C.W.N 262, disapproved.\n\nFurther. there was no evidence that the representatives of the two famil'es constituted a new partnership and carried on the business of the sugar mill before 13th December 1949, when, it was cone ceded a new partnership had come into existence.\n\nC1v1L APPELLATE JURISDICTION: Civil Appeal Nos. 38 and 39 of 1964.\n\nAppeals from the judgment and order dated April 10, 1961 of the Madhya Pradesh High Court in Miscellane-ous Civil Case No.\n\nD 63 of 1961.\n\nC. K. Daphtary, Attorney-General, R. Ganapathy Iyer and R. N. Sachthey, for the appellant (for both the appeals).\n\nN. D. Karkhanis, Rameshwar Nath, S. N. Andley and P. L.\n\nVohra, for the respondent (in both the appeals).\n\nThe Judgment of the Court was delivered by .Subba Rao, J. These two appeals by certificate arise out of the judgment of the High Court of Madhya Pradesh, Jabalpur, in Miscellaneous Case No. 63 of 1961 from a reference under s. 66(2) of\n\nthe Indian Income-tax Act, 1922, made by the Income-tax Appellate Tribunal, Bombay.\n\nF To appreciate the of the parties the following\n\ngenealogy will be useful:\n\nI Govindra.m (d. in January 1943)\n\ni Ma.danlal (predeceased his\n\nfather)\n\nI Jankibai\n\nI Radheyahyam (predeceaiied\n\nhis father)\n\nI Shantibai\n\n8hantibai\n\nVishwa.nath (adopted)\n\n(b. 13-4-19tl'\n\nKaloora.m Todi\n\nNandlal (d. 9-12-1945)\n\nI Banarsibai\n\nI Venka.Ual (b. 13-12-1931)\n\nGangapras&d (d. in 1933)\n\nBachh•lal\n\n(b. 25-1-JgS5)\n\n100 8UPHEME COURT Hl<:PORTS [IUG5] 3 s:c.R,\n\nAfler the death of Kdooram Todi, his two sons by name\n\nand Ganguprnsad constituted a joiut Hindu family which owned extensiye in Jacra State and a sugar mill callei \"Seth Govindram Sugar Mills\" at Mahidpur Road in Holkar State. In the year 1942 Bachhulal filed a suit for partition against\n\nGovindram and obtained a decree therein. In due course the pro perty was divided and a final decree was made. We are concerned in these appeals only with the Sugar Mills at Mahidpur Road. After\n\nthe partition Govindram and Bachhulal jointly \\Wrked the Sugar Mills at Mahidpur Road. After the death of Govindram in 1943, Nandlal, the son of Govindram, and Bachhulal, as kartas of their respective joint families, entered into a partnership on September 28, 1943 to carry on the business of the said Sugar Mills. Nandlal died on December 9, 1945, leaving behind him the members of his branch of the joint family, namely, the thtee widows and the two minor sons shown in the genealogy. After the death of Nandlal, Bachhulal carried on the business of the Sugar Mills in the name of \"Seth Govindram Sugar Mills\". For the assessment year 1950-51, the said firm applied for registration on the basis of the agreement of partnership dated September 28, 1943. The Income-tax Officer refused to register the partnership on the ground that after the death of Nandlal the partnership was dissolved and thereafter\n\nBachhulal and the minors could be treated only as an association of persons. On that footing he made another order assessing the income of the business of the firm as that of an association of persons. Against the .said orders, two appeals-one being Appeal No. 21 of 1955-56 against the order refusing regi!ltration and the other being Appeal No. 24 of 1955-56 against the order of assess- . ment-were filed to the Appellate Assistant Commissioner. The\n\nAppellate Assistant Commissioner dismissed both the appeals. In tlae appeal against the order of assessment, the Appellate Assistant Commissioner exhaustively considered the question whether there was any partnership between the members of the two families after the death of Nandlal and came to the conclusion that in fact as well u in law such partnership did not exist. Two separate appeals, being Income-tax Appeal No. 8328 of 1957-58 and Income-tax Appeal No. 8329 of 1957-58, preferred to the Income-tax Appellate Tribunal against the orders of the Appellate Assistant Commissioner were dismissed. The assessee made two applications to the\n\nTribunal for referring certain questions of law to the High Court.\n\nbut .they were dismissed. Thereafter, at the instance of the assessee the Htgh Court directed the Tribunal to submit the following two questions for its decision and it accordingly did so:\n\n\"(]) Whether on the facts and in the circumstances of the case, the status of the assessee. \"Seth Govindram Sugar Mills, Mahidpur Road, Proprietor Nandlal Bachhulal, Jaora\", is an Association of Persons or a firm wi!hin the meaning of Section 16(1)(h) of the Income-tax Act.\"\n\nc. I. T. v. GOVI'WRAM MILLS (Subba\n\nJ.) 491\n\nA \"(2) Whether the order of the Appellate Tribunal is illegal on account of the Tribunal having committed an error of record and having omitted to consider the relevant material in the case.\" The High Court. for reasons given in its judgment, held on the fim :& question that in the assessment year 1949-50 the status of the\n\nassessee was that of a firm within the meaning of s. 16(l)(b) of the\n\n1 ncome-tax Act and on the second question it held that the Tribunal misdirected itself in law in reaching the conclusion that the parties could not be regarded as partners. The present two appeals are preferred against the said order. c\n\nAt the outset we must make it clear that the question of regietration could not be agitated in these appeals, as that question was not referred to the High Court. We shall, therefore, only consider the points raised by the questions referred to the High Court and held by the High Court agaiust the appellant. Indeed, the enlf effective question is whether during the assessment year 1950-51 tilt aSiiessee was a firm or an association of persons.\n\nThe first question raised by the learned Attorney General ii that on the death of N andlal the firm of Seth Govindram Sugar Mills was dissolved and thereafter the income of the said businCM\n\ncould only be assessed as that of an association of persons.\n\nTo appreciate this contention some more necessary facts may be atated. The deed of partnership dated September 28, 1943, was executed between Nandlal and Bachhulal. It is not disputed that each of the said two partners entered into that partnership as repretheir respective joint families. Under cl. (3) of the partnerdiip deed, \"The death of any of the parties shall not dissolve the partnership and either the legal heir or the nominee of the deceasetl partner shall take his place in the provisions of the partnership.\"\n\nThe question is whether on the death of Nandlal his the members of his branch of the family, automatically became Ill• partners of the said firm. The auswer to the question turns upoia G s. •2 of the Indian Partnership Act, 1932 (Act 9 of 1932), tlte\n\nmaterial part of which reads :\n\n\"Subje.ct to contract between the partners a firm is dissolved by the. death of a partner.\" While for the appellant the learned Attorney General contendc4 H that s. 42 applied only to a partnership consisting of more than two partners, for the respondent Mr. Karkhanis argued that the section did not impose .any such limitation and that on its terms it equall17 applied to a partnership comprising only two partners. It was argued that the contract mentioned in the over-riding clause was a\n\ncontract between the partners and that, if the parties to the contract agreed that in the event of death of either of them his successor\n\nwould be inducted in his place, the said contract would ube binding\n\nSl'l'!U<.:ME COUHT gEPOHT:') I l%Gj 3 S.C.lt.\n\non the surviving member. On the death of one of the partners. it A was said. his heir would. be automatically inducted into the partnership, though after such entry he might opt to get out of it. This conclusion the argument proceeded also supported by s. 3 l of the Partnership Act. Section 31 of the Partnership Act reads:\n\n\"(] i Subject to contract between the partners and to , the provisions of section 30, no person shall be introduced as a partner into a firm without the consent of all the existing partners.\" Converting the negative into positive, under s. 31 of the Partnership Act if there was a contract between the partners, a person other than lhe partners could be introduced as a partner of the firm without the consent of all the existing partners. A combined reading of ss. 42 and 31 of the Partnership according to the learned counsel, would lead to the only conclusion that two partners of a firm could by agreement induct a third person into the partnership after the death of one of them.\n\nThere is a fallacy in this argument. Partnership, under s. 4 of the Partnership Act, is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Section 5 of the said Act says that the relation\n\nof partnership arises from contract and not from status. The fundamental principle of partnership, therefore, is that the relation of partnership arises out of contract and not out of status. To accept the of the learned counsel is to negative the basic principle of law of pa_rtnership. Section 42 can be interpreted without doing violence either to the language used or to the said basic principle. Section 42(c) of the Partnership Act can appropriately be applied to a partnership where there are more than two partners.\n\nIf one of them dies, the firm is dissolved; but if there is a contract to the contrary, the surviving partners will continue the firm. On the other hand, if one of the two partners of a firm dies, the firm automatically comes to an end and, thereafter, there is no partnership for a third party to be introduced therein and. therefore, there is no scope for applying cl. (c) of s. 42 to such a situation. It may be that pursuant to the wishes of the directions of the deceased partner the surviving partner may enter into a new partnership with the heir of the deceased partner, but that would constitute a new partnership. In this light s. 31 of the Partnership Act falls in linewith s. 42 thereof. That section only recognizes the validity of a contract between the partners to introduce a third party without the consent of all the existing partners: it presupposes the subsistence of a partnership; it does not apply to a partnership of two partners which is dissolved , by the death of one of them, for in that event there is no partnership at all for any new partner to be inducted into it without the consent of others.\n\nThe.re is a conflict of judicial decisions on this question. The decision of the Al!ahabad High Court in Lal Ram.Kumar v.\n\n'\" 1. '!'. '\" noVINDRAH {Subba Rao, J.)\n\n/{ uhori Lal(') is not of any practical help to decide the present case.\n\nThere, from the conduct of the surviving partner and the heirs of\n\nthe deceased partner after the death of the said partner. the contract\n\nbetween the original partners that the partnership should not be dissolved en the death ol any of them was inferred. Though the\n\np3rtnership there was only between two partners, the question of the inapplicability of s. 42(c) of the Partnership Act to such a part nership was neither raised nor decided therein. The same criticism applies to the decision of the Nagpur High Court in Chainkaran Sidhakaran Oswal v Radhakisan Vislnvanath Di.lit('). This queslion was directly raised and clearly answered by a Division Bench 0t the Allahabad High Court in Mt. Sughra v. Babu(') against tht\n\nlegality of such a term of a contract of partnership consisting of only two partners. Agarwala, J., neatly stated the principle thus:\n\n\"In the case of a partnership consisting of only two partners, no partnership remains on the death of one of\n\nthem and, therefore, it is a contrudiction in terms to say that there can be a contract betwcc,1 two partners to the effect that on the death of one of them the partner ship will not be dissolved but will continue .............. ..\n\n. . ............ ..... Partnership is not a matter of. status, it is a matter of contract. N\" heir c2n be said to become a\n\npartner with another person without his own consent, express or implied.\"\n\nThis view accords with that expressed by us earlier. In Narayanan\n\nv. Umaya[('), Ramachandra Iyer J., as he then was, said much to the same effect when he observed thus:\n\n\" ............ if one of the partners died. there will not be any partnership existing to which the legal representatives of the deceased partner could be taken in. In such a case the partnership would come to an end by the death of one of the two partners, and if the legal represen tatives of the deceased partner joins in the business later, it should be referable to a new p3rtnership between them.\"\n\nBut ChattCi'jee J., in Hansraj Manot v. Messrs. Corak Nath\n\nPandey(') struck a different note. His reasons for the contrary view are expressed thus:\n\n\"Here the contract that has been referred to ; s the contract between the two partners Gornk Nath and Champa!al -. .................... Therefore, it cannot be '\"id that the contract ceased to have effect becaDse a partner died. The contract was there. There was no new contract\n\n(') A.I.R. 1946 All. 259. (') A.I.R. rn;, o Xng 46. (') A.I.R. 1962 All. 508, ,,07. (') A.I.R. 1959 Mad. 2\"?. \"&4,\n\nLjP(Xl4SC l-5\n\n(') [1961] 68 O.W.!;', 262, 264.\n\nwith the heirs and there was no question of .a new contract with the heirs of the original contract, and by virtue of the original contract the heirs become partners as soon as one of the partners died .. .. . . . .. . .. .. .. . . As soon as there is the death, the heirs become the partners automatically without any agreement between the original partners by virtue of the original agreement between, the partners while they were surviving. There is no of interregnum. As soon as the death occurs the nght of somebody else cccurs. The question of interregnum does not arise. The heirs become partners not because of a contract between the heirs on the one hand and the other\n\npartners on the other but because of the contract between the original partners of the firm.'.'\n\nWith great respect to the learned Judge, find it difficult to appreciate the said reasons. The learned Judge seems to suggest that\n\nby reason of the contract between the partners, heirs of the deceased partner enter the field smmltaneously with the removal by death of the other partner from the partnership. This implies that the personality of the deceased partner projects into that of his heirs, with the result that there is a continuity of the partnership without any interregnum. There is no support either on authority or on principle for such a legal position. In law and in fact there is an interregnum between the death of one and the\n\nto him. We accept the view of the Allahabad and Madras High Courts and reject the view expressed by Nagpur and Calcutta High Courts;\n\nThe result of the discussion is that the partnership between Nandlal and Bachhulal came to an end on the death of Nandlal on\n\nDecember 9, 1945.\n\nThe question is whether after the death of Nandlal a new partnership was entered into between the representatives of the two\n\nbranches of the families, i.e .. Nandlal's and Bachhulal's: Before we consider this question it is as well that we advert to incidental questions of law that were raised. One is whether the widow of Nandlal could under Hindu law be a karta of the joint Hindu family consisting of three widowsand two minors. There is conflict of view on this question. The Nagpur l:figh Court held that a widow could be\n\n\"' karta: see Commissioner of Income-tax, C. P. & Berar v. Seth La.uni Narayan Pandurang Dahke v. Pandurang Corle('). The Calcutta High Court expressed the view that where the male members are minors and their naturat guardian is the mother, the mother can represent the Hindu undivided family for the purpose of assessment and recovery of taxes under the Incometax Act: see Sushi/a Devi Rampurla v. lncome-tax Officer('); and\n\n(')(1948) 16 I.T.R. 313. (') I.L.R. M147tNag .. (') (1959) 38 I.T.R .. 3rn.\n\nc. I. T. v. GOVINDRAM MILLS (Subba Rao, J.) 495\n\nA Sm. Champa Kumari Singhi v. Additional Member, Board of Reve•\n\nnue, West Bengal('). The said two decisions did not recogniz<! the widow as a karta of the family, but treated her as the guardian of the minors for the purpose of income-tax assessment. The said decisions, therefore, do not touch the question now raised .. The Madras and Orissa High Courts held that coparcenership is a neces- B sary qualification for the managership of a joint Hindu family and as a widow is not admittedly a coparcener, she has no legal qua!ifi-. cations to become the manager of a joint Hindu family. The decision of the Orissa High Court in Budhi Jena v. Dhobai Naik(') followed the decision of the Madras High Court in V.M.N. Radha\n\nAmmal v. Commissioner of Income-tax, Madras(') wherein Satya- C narayana Rao J., observed:\n\n\"The right to become a manager depends upon the fundamental fact that the person on whom the right devolved was a coparcener of the joint family ............ .\n\nFurther, the right is confined to the male members of the family as the female members were not treated as coparce- D ners though they may be members of the joint family.\" Viswana tha Sastri J., said :\n\n\"The managership of a joint Hindu family is a creature of law and in certain circumstances, could be created by an agreement among the coparceners of the joint E family. Coparcenership is a necessary qualification for managership of a joint Hindu family.\"\n\nThereafter, the learned Judge proceeded to state:\n\n\"It will be revolutionary of all accepted principles of Hindu law to suppose that the seniormost female member of a joint Hindu family, even though she has adult sons who are entitled as coparceners to the absolute ownership ofthe property, could be the manager of the family .......\n\n.. .. . . .. .. . .. .. . .. .. . She would be the guardian of her minor sons till the eldest of them attains majority but she would not be the manager of the joint family for she is not a coparcener.\"\n\nThe view expressed by the Madras High Court is in accordance with well o_f Hii:idn law, while that expressed by the Nagpur High .court 1s m d!fect conflict with them. We are clearly of the opm10n that the Madras view is correct.\n\n. Anotho:r. which is also equally well settled may be A iomt Hmd_u family as such cannot be a partner in a firm, but 1t may, Its karta enter into a valid partnership with a stranger or with the karta of another family. This Court in Kshetrtt\n\n(') (1961) 46 .T.T.R. 81\n\n(') A.I.R.\n\nOri\"• 6\n\n(') (1950) 18 I.T.R. 225, !30, 232, 233. .\n\nMohan Sanyasi Charan Sadhukhan v. C.E.P.T.(') pointed out that A when two kartas of different families constituted a partnership the other members of the families did not become partners, though the karta might be accountable to them.\n\nThe question, therefore, is whether after the death of Nandlal the representatives of the two families constituted a new partner• B ship and carried on the business of the Sugar Mills. Admittedly no fresh partnership deed was executed: between Banarsibai, acting as the guardian of the minors in Nandlal's branch of the family and Bachhulal. It is not disputed that partnership between the representatives of two families can be inferred from conduct. Doubtless tho accounts produced before the income-tax authorities disclosed that c Bachhulal was carrying on the business of \"Seth Govindram Sugar Mills Ltd.\" in the same manner as it was conducted before the death of Nandlal. Therein Kalooram Govindram and Gangaprasad Bachhulal were shown as partners, Govindram having 10 annas sh; u:e and Bachhulal having 6 annas share. There were separate current accounts for the two parties. The Appellate Assistant Com- D mi<>sioner, who examined the accounts with care, gave the followdetails from the accounts as on November l, 1948:\n\nJoint ca.pita.I account of Kaloora.m Govindram and Gangapra.sad\n\nBa.chhulaJ in the ratio of 10 : 6\n\nCurrent Accounts:-\n\nGangaprasad Bachhulal\n\nCredit balance\n\nDo.\n\nRs. . 10,78,660\n\n10,46,797 Kalooram Govindram Do. 8,30,348 Profit & LoBS Account Debit balance 14,01,669\n\nNo profit or loss was adjusted to the current account of the F parties. Thereafter the accounts were closed as on when the capital account was squared up by transferring that much loss from the profit and loss account and balance in the profit and loss\n\naccount was transferred in the ratio of 10: 6 to the current accounts of the two parties.\n\nThus the profit and loss account showed:- G Net debit balance incJuding current;\n\nyear's loss Loss set off aga.inst capital account , .\n\nTransferred to partners' a.ccounts:-\n\nMessrs. Kalooram Govindra.m Messrs. Ganga.pre.sad Bachhulal\n\nBalance ------\n\n(') [1954] S.C.R. 268\n\nRs.\n\n4,20,829 2,62,497\n\nRs. 17,61,992 10,78,666\n\n6,73,326\n\n6,73,326\n\nNil\n\n.fl\n\n0. I. T. v. GOVINDRAM MILLS (Subba Rao, J.) 497\n\nThe accounts only establish that Bachhulal was doing the business of Govindram Sugar Mills Ltd. But Banarsibai's name was not found in the accounts. If she was a partner, her name should have found a place in the accounts. Not a single document has been produced on behalf of the assessee which supports the assertion that\n\nBanarsibai acted as a partner or was treated by the customers of the\n\nfirm as a partner. There is not a little of evidence of conduct of Bachhulal, Banarsibai or even of third parties who had dealings with the firm to sustain the plea that Banarsibai was a partner of the firm. Indeed, the conduct of the parties was inconsistent with any such partnership between Banarsibai and Bachhulal. After the death of Nandlal, Banarsibai and Shantibai applied to Jaora District Court for the appointment of guardians to look after the properties and the persons of the two minors; and on January 21, 1946, four persons other than these two widows were appointed as guardians of the minors. If Banarsibai was acting as a guardian of the\n\nminors representing the family in the business, she would not have applied for the appointment of others as guardians. On October 4,\n\n1952, a partnership deed was drawn up between Bachhulal on the one hand and the minors represented by the said four guardians on the other. If Banarsibai was the representative of the family in the business, this document would not have come into being Banarsibai also had no place in another partnership de.ed which was executed on March 27, 1953, between Venkatlal represented by the aforesaid guardians and Bachhulal. The evidence, therefore, demonstrates beyond any reasonable doubt that Banarsibai was nowhere in the picture and that Bachhulal carried on the business of the Sugar Milis on behalf d the two families. Nor is there any evidence to show that from 1943 till the assessment year the guardians of the minors appointed by the District and Sessions Judge, Jaora, in 1946\n\nthe minors entered into a partnership with Bachhula!.\n\nThe partnership deeds of 1952 and 1953 were subsequent to the order of assessment and they contain only self-serving statements\n\nand they cannot, in the absence of any evidence, sustain the plea of earlier partnership. Indeed, the guardians were only appointed for the properties situated within the jurisdiction of the District Judge, J aora, and they could not act as guardians in respect of the properties outside the said jurisdiction. If they were acting as partners with\n\nBachhulal, their names would have been mentioned either in the accounts or in the relevant documents pertaining to the business.\n\nThe conflicting version given by the assessee in regard to person or persons who actually represented the family in the partnership in itself indicates the falsity of the present version. It must, therefore, be held that the Court guardians did not enter into a partnership with Bachhulal.\n\nBut, Venkatlal became a major on December 13, 1949, i.e., during the accounting year 1949-50. On October 17, 1951, an ap\n\nplication for registration was received by the Income-tax Officer\n\nsigned by Venkatlal and Bachhula1 wno are shown as partners representing their respective joint families. The return of income submitted along with the application for registration was signed by Venkatlal on August 29, 1951. After Venkatlal became a major, there was no obstae!e in his representing his branch of the family; in the partnership. Indeed, it w:i.s conceded in the High Court that there was a partnership from December 13, 1949, when Venkatla1 attained majority. Having regard to the said circumstances and the concession, we must hold that from December 13, 1949, the business was carried on in partnership between Venkatlal, representing his branch of the family, and Bachhulal, representing his branch of the family.\n\nIn the result we set aside that part of the finding of the High Court holding that the partnership business was carried on by the representatives of the two families after the death of Nandlal, but confirm the finding to the extent that such a partnership came into existence only after December 13, 1949. In this view, we answer the two questions referred to the High Court as under:\n\n(!) For the assessment year 1950-51 the status of the\n\nassessee was that of a firm within the meaning of s. 16 (l)(b) of the Income-tax Act, 1922.\n\n(2) The Tribunal misdirected itself in law in reaching the\n\nconclusion that the parties could not be regarded as partners.\n\nIn the result the appeals are dismissed. But as the respondent failed in its main contentions, the parties will bear their own costs in this Court. ·\n\nA ppea/s dismissed.", "total_entities": 97, "entities": [{"text": "COMMISSIONER OF INCOME-TAX, MADHYA PRADESH, A\n\nNAGPUR", "label": "PETITIONER", "start_char": 0, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, MADHYA PRADESH, A NAGPUR", "offset_not_found": false}}, {"text": "SETH GOVINDRAM SUGAR MILLS LTD", "label": "RESPONDENT", "start_char": 55, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "SETH GOVINDRAM SUGAR MILLS LTD", "offset_not_found": false}}, {"text": "March 26, 1965", "label": "DATE", "start_char": 88, "end_char": 102, "source": "ner", "metadata": {"in_sentence": "March 26, 1965\n\nJK."}}, {"text": "JK. SUBBA RAO, J", "label": "JUDGE", "start_char": 104, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH ANDS. M. SIKRI, JJ", "label": "JUDGE", "start_char": 121, "end_char": 147, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "ss. 31 and 42(c)", "label": "PROVISION", "start_char": 182, "end_char": 198, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 164(1)", "label": "PROVISION", "start_char": 303, "end_char": 312, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 1604, "end_char": 1624, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "13th December 1949", "label": "DATE", "start_char": 1792, "end_char": 1810, "source": "ner", "metadata": {"in_sentence": "But, as a result of the concession by the appellant, that there was a partneri:hip from 13th December 1949, when one of the minor_ sons had become a major, the status of the assessee was that of a firm for the assessment year\n\nrn5o-5L r49BBJ\n\nA joint Hindu family as such cannot be a partner of a firm, but it may through its karta enter into a partnershlp with the karta of another family. ["}}, {"text": "s. 42(c)", "label": "PROVISION", "start_char": 2599, "end_char": 2607, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Subba, Ruo", "label": "JUDGE", "start_char": 2846, "end_char": 2856, "source": "ner", "metadata": {"in_sentence": "if one of them dies, the firm is dissolved, but if there is a contract to\n\nc. I. T. v. GOVINDRAM Mll, LS (Subba, Ruo, J.) 489\n\nA the contrary, the surviving partners will continue the firm.", "canonical_name": "Subba, Ruo"}}, {"text": "Section 31", "label": "PROVISION", "start_char": 3123, "end_char": 3133, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 3917, "end_char": 3942, "source": "ner", "metadata": {"in_sentence": "Appeals from the judgment and order dated April 10, 1961 of the Madhya Pradesh High Court in Miscellane-ous Civil Case No."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 3992, "end_char": 4006, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, R. Ganapathy Iyer and R. N. Sachthey, for the appellant (for both the appeals)."}}, {"text": "R. Ganapathy Iyer", "label": "LAWYER", "start_char": 4026, "end_char": 4043, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, R. Ganapathy Iyer and R. N. Sachthey, for the appellant (for both the appeals)."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4048, "end_char": 4062, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, R. Ganapathy Iyer and R. N. Sachthey, for the appellant (for both the appeals)."}}, {"text": "N. D. Karkhanis", "label": "LAWYER", "start_char": 4107, "end_char": 4122, "source": "ner", "metadata": {"in_sentence": "N. D. Karkhanis, Rameshwar Nath, S. N. Andley and P. L.\n\nVohra, for the respondent (in both the appeals)."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 4124, "end_char": 4138, "source": "ner", "metadata": {"in_sentence": "N. D. Karkhanis, Rameshwar Nath, S. N. Andley and P. L.\n\nVohra, for the respondent (in both the appeals)."}}, {"text": "S. N. Andley", "label": "LAWYER", "start_char": 4140, "end_char": 4152, "source": "ner", "metadata": {"in_sentence": "N. D. Karkhanis, Rameshwar Nath, S. N. Andley and P. L.\n\nVohra, for the respondent (in both the appeals)."}}, {"text": "P. L.\n\nVohra", "label": "LAWYER", "start_char": 4157, "end_char": 4169, "source": "ner", "metadata": {"in_sentence": "N. D. Karkhanis, Rameshwar Nath, S. N. Andley and P. L.\n\nVohra, for the respondent (in both the appeals)."}}, {"text": ".Subba Rao", "label": "JUDGE", "start_char": 4257, "end_char": 4267, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by .Subba Rao, J. These two appeals by certificate arise out of the judgment of the High Court of Madhya Pradesh, Jabalpur, in Miscellaneous Case No.", "canonical_name": "Subba, Ruo"}}, {"text": "High Court of Madhya Pradesh, Jabalpur", "label": "COURT", "start_char": 4338, "end_char": 4376, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by .Subba Rao, J. These two appeals by certificate arise out of the judgment of the High Court of Madhya Pradesh, Jabalpur, in Miscellaneous Case No."}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 4438, "end_char": 4446, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 4455, "end_char": 4482, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "i Ma.danlal", "label": "PETITIONER", "start_char": 4648, "end_char": 4659, "source": "ner", "metadata": {"in_sentence": "F To appreciate the of the parties the following\n\ngenealogy will be useful:\n\nI Govindra.m (d. in January 1943)\n\ni Ma.danlal (predeceased his\n\nfather)\n\nI Jankibai\n\nI Radheyahyam (predeceaiied\n\nhis father)\n\nI Shantibai\n\n8hantibai\n\nVishwa.nath (adopted)\n\n(b. 13-4-19tl'\n\nKaloora.m Todi\n\nNandlal (d. 9-12-1945)\n\nI Banarsibai\n\nI Venka."}}, {"text": "Kdooram Todi", "label": "OTHER_PERSON", "start_char": 5004, "end_char": 5016, "source": "ner", "metadata": {"in_sentence": "Ual (b. 13-12-1931)\n\nGangapras&d (d. in 1933)\n\nBachh•lal\n\n(b. 25-1-JgS5)\n\n100 8UPHEME COURT Hl<:PORTS [IUG5] 3 s:c.R,\n\nAfler the death of Kdooram Todi, his two sons by name\n\nand Ganguprnsad constituted a joiut Hindu family which owned extensiye in Jacra State and a sugar mill callei \"Seth Govindram Sugar Mills\" at Mahidpur Road in Holkar State."}}, {"text": "Bachhulal", "label": "OTHER_PERSON", "start_char": 5230, "end_char": 5239, "source": "ner", "metadata": {"in_sentence": "In the year 1942 Bachhulal filed a suit for partition against\n\nGovindram and obtained a decree therein.", "canonical_name": "Bachhulal"}}, {"text": "Govindram", "label": "RESPONDENT", "start_char": 5276, "end_char": 5285, "source": "ner", "metadata": {"in_sentence": "In the year 1942 Bachhulal filed a suit for partition against\n\nGovindram and obtained a decree therein.", "canonical_name": "Govindram"}}, {"text": "Govindram", "label": "RESPONDENT", "start_char": 5485, "end_char": 5494, "source": "ner", "metadata": {"in_sentence": "After\n\nthe partition Govindram and Bachhulal jointly \\Wrked the Sugar Mills at Mahidpur Road.", "canonical_name": "Govindram"}}, {"text": "Nandlal", "label": "OTHER_PERSON", "start_char": 5596, "end_char": 5603, "source": "ner", "metadata": {"in_sentence": "After the death of Govindram in 1943, Nandlal, the son of Govindram, and Bachhulal, as kartas of their respective joint families, entered into a partnership on September 28, 1943 to carry on the business of the said Sugar Mills."}}, {"text": "September 28, 1943", "label": "DATE", "start_char": 5718, "end_char": 5736, "source": "ner", "metadata": {"in_sentence": "After the death of Govindram in 1943, Nandlal, the son of Govindram, and Bachhulal, as kartas of their respective joint families, entered into a partnership on September 28, 1943 to carry on the business of the said Sugar Mills."}}, {"text": "December 9, 1945", "label": "DATE", "start_char": 5803, "end_char": 5819, "source": "ner", "metadata": {"in_sentence": "Nandlal died on December 9, 1945, leaving behind him the members of his branch of the joint family, namely, the thtee widows and the two minor sons shown in the genealogy."}}, {"text": "Seth Govindram Sugar Mills", "label": "ORG", "start_char": 6056, "end_char": 6082, "source": "ner", "metadata": {"in_sentence": "After the death of Nandlal, Bachhulal carried on the business of the Sugar Mills in the name of \"Seth Govindram Sugar Mills\"."}}, {"text": "Income-tax Appellate Tribunal", "label": "COURT", "start_char": 7332, "end_char": 7361, "source": "ner", "metadata": {"in_sentence": "8329 of 1957-58, preferred to the Income-tax Appellate Tribunal against the orders of the Appellate Assistant Commissioner were dismissed."}}, {"text": "Jaora", "label": "GPE", "start_char": 7904, "end_char": 7909, "source": "ner", "metadata": {"in_sentence": "Seth Govindram Sugar Mills, Mahidpur Road, Proprietor Nandlal Bachhulal, Jaora\", is an Association of Persons or a firm wi!hin the meaning of Section 16(1)(h) of the Income-tax Act.\""}}, {"text": "Section 16(1)(h)", "label": "PROVISION", "start_char": 7973, "end_char": 7989, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7997, "end_char": 8011, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 16(l)(b)", "label": "PROVISION", "start_char": 8436, "end_char": 8447, "source": "regex", "metadata": {"statute": null}}, {"text": "andlal", "label": "OTHER_PERSON", "start_char": 9228, "end_char": 9234, "source": "ner", "metadata": {"in_sentence": "The first question raised by the learned Attorney General ii that on the death of N andlal the firm of Seth Govindram Sugar Mills was dissolved and thereafter the income of the said businCM\n\ncould only be assessed as that of an association of persons."}}, {"text": "Indian Partnership Act, 1932", "label": "STATUTE", "start_char": 10121, "end_char": 10149, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 42", "label": "PROVISION", "start_char": 10367, "end_char": 10372, "source": "regex", "metadata": {"linked_statute_text": "the Indian Partnership Act, 1932", "statute": "the Indian Partnership Act, 1932"}}, {"text": "Karkhanis", "label": "OTHER_PERSON", "start_char": 10464, "end_char": 10473, "source": "ner", "metadata": {"in_sentence": "While for the appellant the learned Attorney General contendc4 H that s. 42 applied only to a partnership consisting of more than two partners, for the respondent Mr. Karkhanis argued that the section did not impose .any such limitation and that on its terms it equall17 applied to a partnership comprising only two partners."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 11205, "end_char": 11209, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 31", "label": "PROVISION", "start_char": 11236, "end_char": 11246, "source": "regex", "metadata": {"statute": null}}, {"text": "section 30", "label": "PROVISION", "start_char": 11352, "end_char": 11362, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 31", "label": "PROVISION", "start_char": 11515, "end_char": 11520, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 42 and 31", "label": "PROVISION", "start_char": 11740, "end_char": 11753, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 12020, "end_char": 12024, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5", "label": "PROVISION", "start_char": 12181, "end_char": 12190, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 42", "label": "PROVISION", "start_char": 12519, "end_char": 12529, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 42(c)", "label": "PROVISION", "start_char": 12632, "end_char": 12645, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 13134, "end_char": 13139, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 31", "label": "PROVISION", "start_char": 13394, "end_char": 13399, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 13441, "end_char": 13446, "source": "regex", "metadata": {"statute": null}}, {"text": "Al!ahabad High Court", "label": "COURT", "start_char": 13965, "end_char": 13985, "source": "ner", "metadata": {"in_sentence": "The decision of the Al!ahabad High Court in Lal Ram."}}, {"text": "s. 42(c)", "label": "PROVISION", "start_char": 14478, "end_char": 14486, "source": "regex", "metadata": {"statute": null}}, {"text": "Nagpur High Court", "label": "COURT", "start_char": 14623, "end_char": 14640, "source": "ner", "metadata": {"in_sentence": "The same criticism applies to the decision of the Nagpur High Court in Chainkaran Sidhakaran Oswal v Radhakisan Vislnvanath Di.lit(')."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 14790, "end_char": 14810, "source": "ner", "metadata": {"in_sentence": "This queslion was directly raised and clearly answered by a Division Bench 0t the Allahabad High Court in Mt. Sughra v. Babu(') against tht\n\nlegality of such a term of a contract of partnership consisting of only two partners."}}, {"text": "Agarwala", "label": "JUDGE", "start_char": 14935, "end_char": 14943, "source": "ner", "metadata": {"in_sentence": "Agarwala, J., neatly stated the principle thus:\n\n\"In the case of a partnership consisting of only two partners, no partnership remains on the death of one of\n\nthem and, therefore, it is a contrudiction in terms to say that there can be a contract betwcc,1 two partners to the effect that on the death of one of them the partner ship will not be dissolved but will continue .............. ..\n\n. . ............ ....."}}, {"text": "Ramachandra Iyer", "label": "JUDGE", "start_char": 15607, "end_char": 15623, "source": "ner", "metadata": {"in_sentence": "In Narayanan\n\nv. Umaya[('), Ramachandra Iyer J., as he then was, said much to the same effect when he observed thus:\n\n\" ............ if one of the partners died."}}, {"text": "ChattCi'jee", "label": "JUDGE", "start_char": 16106, "end_char": 16117, "source": "ner", "metadata": {"in_sentence": "But ChattCi'jee J., in Hansraj Manot v. Messrs. Corak Nath\n\nPandey(') struck a different note."}}, {"text": "Gornk Nath", "label": "OTHER_PERSON", "start_char": 16339, "end_char": 16349, "source": "ner", "metadata": {"in_sentence": "His reasons for the contrary view are expressed thus:\n\n\"Here the contract that has been referred to ; s the contract between the two partners Gornk Nath and Champa!al -. ...................."}}, {"text": "Champa!al", "label": "OTHER_PERSON", "start_char": 16354, "end_char": 16363, "source": "ner", "metadata": {"in_sentence": "His reasons for the contrary view are expressed thus:\n\n\"Here the contract that has been referred to ; s the contract between the two partners Gornk Nath and Champa!al -. ...................."}}, {"text": "Allahabad and Madras High Courts", "label": "COURT", "start_char": 18154, "end_char": 18186, "source": "ner", "metadata": {"in_sentence": "We accept the view of the Allahabad and Madras High Courts and reject the view expressed by Nagpur and Calcutta High Courts;\n\nThe result of the discussion is that the partnership between Nandlal and Bachhulal came to an end on the death of Nandlal on\n\nDecember 9, 1945."}}, {"text": "Nagpur and Calcutta High Courts", "label": "COURT", "start_char": 18220, "end_char": 18251, "source": "ner", "metadata": {"in_sentence": "We accept the view of the Allahabad and Madras High Courts and reject the view expressed by Nagpur and Calcutta High Courts;\n\nThe result of the discussion is that the partnership between Nandlal and Bachhulal came to an end on the death of Nandlal on\n\nDecember 9, 1945."}}, {"text": "Nagpur l:figh Court", "label": "COURT", "start_char": 18881, "end_char": 18900, "source": "ner", "metadata": {"in_sentence": "The Nagpur l:figh Court held that a widow could be\n\n\"' karta: see Commissioner of Income-tax, C. P. & Berar v. Seth La.uni Narayan Pandurang Dahke v. Pandurang Corle(')."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 19051, "end_char": 19070, "source": "ner", "metadata": {"in_sentence": "The Calcutta High Court expressed the view that where the male members are minors and their naturat guardian is the mother, the mother can represent the Hindu undivided family for the purpose of assessment and recovery of taxes under the Incometax Act: see Sushi/a Devi Rampurla v. lncome-tax Officer('); and\n\n(')(1948) 16 I.T.R. 313. (')"}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 19463, "end_char": 19472, "source": "ner", "metadata": {"in_sentence": "c. I. T. v. GOVINDRAM MILLS (Subba Rao, J.) 495\n\nA Sm.", "canonical_name": "Subba, Ruo"}}, {"text": "Madras and Orissa High Courts", "label": "COURT", "start_char": 19810, "end_char": 19839, "source": "ner", "metadata": {"in_sentence": "The said decisions, therefore, do not touch the question now raised .. The Madras and Orissa High Courts held that coparcenership is a neces- B sary qualification for the managership of a joint Hindu family and as a widow is not admittedly a coparcener, she has no legal qua!ifi-."}}, {"text": "Orissa High Court", "label": "COURT", "start_char": 20091, "end_char": 20108, "source": "ner", "metadata": {"in_sentence": "The decision of the Orissa High Court in Budhi Jena v. Dhobai Naik(') followed the decision of the Madras High Court in V.M.N. Radha\n\nAmmal v. Commissioner of Income-tax, Madras(') wherein Satya- C narayana Rao J., observed:\n\n\"The right to become a manager depends upon the fundamental fact that the person on whom the right devolved was a coparcener of the joint family ............ ."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 20170, "end_char": 20187, "source": "ner", "metadata": {"in_sentence": "The decision of the Orissa High Court in Budhi Jena v. Dhobai Naik(') followed the decision of the Madras High Court in V.M.N. Radha\n\nAmmal v. Commissioner of Income-tax, Madras(') wherein Satya- C narayana Rao J., observed:\n\n\"The right to become a manager depends upon the fundamental fact that the person on whom the right devolved was a coparcener of the joint family ............ ."}}, {"text": "Satya- C narayana Rao", "label": "JUDGE", "start_char": 20260, "end_char": 20281, "source": "ner", "metadata": {"in_sentence": "The decision of the Orissa High Court in Budhi Jena v. Dhobai Naik(') followed the decision of the Madras High Court in V.M.N. Radha\n\nAmmal v. Commissioner of Income-tax, Madras(') wherein Satya- C narayana Rao J., observed:\n\n\"The right to become a manager depends upon the fundamental fact that the person on whom the right devolved was a coparcener of the joint family ............ ."}}, {"text": "Viswana tha Sastri", "label": "JUDGE", "start_char": 20630, "end_char": 20648, "source": "ner", "metadata": {"in_sentence": "Viswana tha Sastri J., said :\n\n\"The managership of a joint Hindu family is a creature of law and in certain circumstances, could be created by an agreement among the coparceners of the joint E family."}}, {"text": "Nagpur High", "label": "COURT", "start_char": 21573, "end_char": 21584, "source": "ner", "metadata": {"in_sentence": "The view expressed by the Madras High Court is in accordance with well o_f Hii:idn law, while that expressed by the Nagpur High .court 1s m d!fect conflict with them."}}, {"text": "Madras", "label": "GPE", "start_char": 21662, "end_char": 21668, "source": "ner", "metadata": {"in_sentence": "We are clearly of the opm10n that the Madras view is correct."}}, {"text": "Banarsibai", "label": "OTHER_PERSON", "start_char": 22501, "end_char": 22511, "source": "ner", "metadata": {"in_sentence": "Admittedly no fresh partnership deed was executed: between Banarsibai, acting as the guardian of the minors in Nandlal's branch of the family and Bachhulal."}}, {"text": "Seth Govindram Sugar Mills Ltd.", "label": "ORG", "start_char": 22835, "end_char": 22866, "source": "ner", "metadata": {"in_sentence": "Doubtless tho accounts produced before the income-tax authorities disclosed that c Bachhulal was carrying on the business of \"Seth Govindram Sugar Mills Ltd.\" in the same manner as it was conducted before the death of Nandlal."}}, {"text": "Therein Kalooram Govindram", "label": "OTHER_PERSON", "start_char": 22936, "end_char": 22962, "source": "ner", "metadata": {"in_sentence": "Therein Kalooram Govindram and Gangaprasad Bachhulal were shown as partners, Govindram having 10 annas sh; u:e and Bachhulal having 6 annas share."}}, {"text": "Gangaprasad Bachhulal", "label": "JUDGE", "start_char": 22967, "end_char": 22988, "source": "ner", "metadata": {"in_sentence": "Therein Kalooram Govindram and Gangaprasad Bachhulal were shown as partners, Govindram having 10 annas sh; u:e and Bachhulal having 6 annas share.", "canonical_name": "Gangapra.sad\n\nBa.chhulaJ in"}}, {"text": "Gangapra.sad\n\nBa.chhulaJ in", "label": "JUDGE", "start_char": 23338, "end_char": 23365, "source": "ner", "metadata": {"in_sentence": "I account of Kaloora.m Govindram and Gangapra.sad\n\nBa.chhulaJ in the ratio of 10 : 6\n\nCurrent Accounts:-\n\nGangaprasad Bachhulal\n\nCredit balance\n\nDo.", "canonical_name": "Gangapra.sad\n\nBa.chhulaJ in"}}, {"text": "Kalooram Govindra.m", "label": "RESPONDENT", "start_char": 24085, "end_char": 24104, "source": "ner", "metadata": {"in_sentence": "Transferred to partners' a.ccounts:-\n\nMessrs. Kalooram Govindra.m Messrs. Ganga.pre.sad Bachhulal\n\nBalance ------\n\n(') [1954] S.C.R. 268\n\nRs."}}, {"text": "Nil", "label": "PETITIONER", "start_char": 24246, "end_char": 24249, "source": "ner", "metadata": {"in_sentence": "17,61,992 10,78,666\n\n6,73,326\n\n6,73,326\n\nNil\n\n.fl\n\n0."}}, {"text": "Govindram Sugar Mills Ltd.", "label": "ORG", "start_char": 24374, "end_char": 24400, "source": "ner", "metadata": {"in_sentence": "I. T. v. GOVINDRAM MILLS (Subba Rao, J.) 497\n\nThe accounts only establish that Bachhulal was doing the business of Govindram Sugar Mills Ltd. But Banarsibai's name was not found in the accounts."}}, {"text": "Shantibai", "label": "OTHER_PERSON", "start_char": 25062, "end_char": 25071, "source": "ner", "metadata": {"in_sentence": "After the death of Nandlal, Banarsibai and Shantibai applied to Jaora District Court for the appointment of guardians to look after the properties and the persons of the two minors; and on January 21, 1946, four persons other than these two widows were appointed as guardians of the minors."}}, {"text": "Jaora District Court", "label": "COURT", "start_char": 25083, "end_char": 25103, "source": "ner", "metadata": {"in_sentence": "After the death of Nandlal, Banarsibai and Shantibai applied to Jaora District Court for the appointment of guardians to look after the properties and the persons of the two minors; and on January 21, 1946, four persons other than these two widows were appointed as guardians of the minors."}}, {"text": "January 21, 1946", "label": "DATE", "start_char": 25208, "end_char": 25224, "source": "ner", "metadata": {"in_sentence": "After the death of Nandlal, Banarsibai and Shantibai applied to Jaora District Court for the appointment of guardians to look after the properties and the persons of the two minors; and on January 21, 1946, four persons other than these two widows were appointed as guardians of the minors."}}, {"text": "October 4,\n\n1952", "label": "DATE", "start_char": 25479, "end_char": 25495, "source": "ner", "metadata": {"in_sentence": "On October 4,\n\n1952, a partnership deed was drawn up between Bachhulal on the one hand and the minors represented by the said four guardians on the other."}}, {"text": "March 27, 1953", "label": "DATE", "start_char": 25824, "end_char": 25838, "source": "ner", "metadata": {"in_sentence": "If Banarsibai was the representative of the family in the business, this document would not have come into being Banarsibai also had no place in another partnership de.ed which was executed on March 27, 1953, between Venkatlal represented by the aforesaid guardians and Bachhulal."}}, {"text": "Venkatlal", "label": "OTHER_PERSON", "start_char": 25848, "end_char": 25857, "source": "ner", "metadata": {"in_sentence": "If Banarsibai was the representative of the family in the business, this document would not have come into being Banarsibai also had no place in another partnership de.ed which was executed on March 27, 1953, between Venkatlal represented by the aforesaid guardians and Bachhulal.", "canonical_name": "Venkatlal"}}, {"text": "Bachhula", "label": "OTHER_PERSON", "start_char": 26320, "end_char": 26328, "source": "ner", "metadata": {"in_sentence": "Nor is there any evidence to show that from 1943 till the assessment year the guardians of the minors appointed by the District and Sessions Judge, Jaora, in 1946\n\nthe minors entered into a partnership with Bachhula!.", "canonical_name": "Bachhulal"}}, {"text": "December 13, 1949", "label": "DATE", "start_char": 27264, "end_char": 27281, "source": "ner", "metadata": {"in_sentence": "But, Venkatlal became a major on December 13, 1949, i.e., during the accounting year 1949-50."}}, {"text": "October 17, 1951", "label": "DATE", "start_char": 27328, "end_char": 27344, "source": "ner", "metadata": {"in_sentence": "On October 17, 1951, an ap\n\nplication for registration was received by the Income-tax Officer\n\nsigned by Venkatlal and Bachhula1 wno are shown as partners representing their respective joint families."}}, {"text": "Bachhula1", "label": "OTHER_PERSON", "start_char": 27444, "end_char": 27453, "source": "ner", "metadata": {"in_sentence": "On October 17, 1951, an ap\n\nplication for registration was received by the Income-tax Officer\n\nsigned by Venkatlal and Bachhula1 wno are shown as partners representing their respective joint families.", "canonical_name": "Bachhulal"}}, {"text": "August 29, 1951", "label": "DATE", "start_char": 27628, "end_char": 27643, "source": "ner", "metadata": {"in_sentence": "The return of income submitted along with the application for registration was signed by Venkatlal on August 29, 1951."}}, {"text": "Venkatla1", "label": "OTHER_PERSON", "start_char": 27867, "end_char": 27876, "source": "ner", "metadata": {"in_sentence": "Indeed, it w:i.s conceded in the High Court that there was a partnership from December 13, 1949, when Venkatla1 attained majority.", "canonical_name": "Venkatlal"}}, {"text": "s. 16", "label": "PROVISION", "start_char": 28645, "end_char": 28650, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 28665, "end_char": 28685, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1965_3_499_535_EN", "year": 1965, "text": "lK.\n\nBHARAT KALA BHANDAR LTD.\n\nMUNICIPAL COMMITTEE, DHAMANGAON\n\nMarch 26, 1965\n\nSlJBBA RAO RAGHUBAR DAYAL, J. R. MuoHOLKAR,\n\nBACHAWAT AND V. RAMASWAMI. JJ.]\n\nR. S.\n\nCentral Provinces and Berar Mi; nicipa!ities Act (2 of 1922), ss. 48 and 84(3)-Scope of-Suit for refund of excess tax prd-If barred.\n\nThe appellant was paying a tax at the rate of one anna per weight of cotton, under s. 66(l)(b) of the Central Prcvmces Mumc1palities Act, 1922, from 1936. In 1941 the rate of tax was ; ncreased te: 4 as. In 1952, the appellant filed a suit for recovery of the excess tax paid within 3 years cf the date of suit. It was contended that after the coming into force of s. 142A of the Governme.nt of India Act, 1935, on 1st April 1939, till 25th January 1950, a tax m excess of Rs. 50 per annum could not be imposed by the respondent, and, after the commg into force of the Constitution the upper limit of the tax was raised to Rs. 250 per annum under Art. 276 of the Constitution; and that as the appellant was already paying more than this amount per year even at the rate of one anna, the enhanced rate of 4 annas was illegal. The trial court decreed the suit for recovery from the Municipal Committee of excess tax paid by the appellant within 3 years of the date of suit but on appeal, the High Court held that the suit was bad for noncorrn::liance with the requirements of s. 48 of the Act. according\n\nto which, a suit for anything done or purported to be done under the Act shall b2 instituted only after the exp'.rat:cn of 2 months aft0r serving a written notice 2nd \\vithin months from the date of the accrual of the alleged cause of action.\n\nIn its appeal to th's Court, the appellant contended that it was a case of recovery of e.n illegal tax and therefore, a clalm for its refund fell outside the provisions of s. 48. The respondent contended that (i) since the ban was not upon the rale of tax but upon the excess collection thereof, the collection of a tax above the constitutional limit was not without jurisdiction but only illegal or irregular and therefore, the suit would be in respect of a matter \"purported to be done under the Act\" and the provision of s. 48 would apply, and\n\n(ii) on the basis of Raleigh Investment Company Ltd. v. Governor- General in Council, (74 I.A. 50) the suit was barred by s. 84(3) of the Act, which enacts that no objection shall be taken to any assessment l!i any other manner than is provided in the Act.\n\nHELD. (Per K. Subba Rao, J. R. Mudholkar and V. Ramaswami JJ.): (i) Smee the respondent had no authority to levy a tax beyond what .s. 142A of the Government of India Act, 1935, or what Art. 276 permitted, the assessment proceedings were void in so far as they purported to levy a tax m excess of the permissible limit and authorise its. collection, and the assessment order would be no answerto Sult for the of the excess amount, and therefore. the suit was maintainable. t522-G-HJ\n\nThe Constitution is the fundamental law of the land and it is unnecessary. to pro':'ide in. a:iy law that anything done in disregard of the Constitut10n 1s prohibited. Such a prohibition has to be read into\n\nSUPREME COURT REPORTS (1965] 3 s.o.a.\n\nevery enactment, and where such prohibition exists or can. be implied,\n\nanything done or purported. t? be .done by. an auth_ority must be regarded as wholly without iunsdiction, and is not entitled to a tection of the law under colour of which that act was done. r512A-B,\n\n516B-C]\n\nPoona City Municipal Corporation v. Dabtatraya Nagesh Deodhar, [1964] 8 S.C.R. 178, followed.\n\n(ii) A tax .can be recovered only. if it is and it would be payable only after it is assessed. It is therefore futile to contend that the ban placed bys. 142A of the Government .of India Act and Art. 276 of the Constitution, extends only to recoveries and not to an earlier stag.e. [513G]\n\nIt is true that the respondent had jurisdiction to recover an amount up to the constitutional limit, But it cannot be contended that merely because of this, the recovery by the respondent of an amount in excess of the constitutional limit was only irregular or at the worst illegal. Where power evists to assess and recover a ta><: up to a particular limit and assessment or recovery of anythmg above that amount is prohibited, the assessment or recovery of an amount in excess is wholly without jurisdiction. To sach a case, the statute under wh; ch action was purported to be taken can afford no, protection. Indeed, to the extent that it affords protection it would be bad.\n\nBut it is the duty of the court to so construe it as to avoid rendering the provision that is, to construe s. 48 as affording protection only if what was done was something which could legally have been done by the respondent but was wrongly done by it, and reject <. construction which will invalidate the provision. [515B;\n\n516B-H]\n\n(iii) The appellant's suit could not be barred even if s. 84(3) of the Act is interpreted in the same way as the Privy Council interpreted s. 67 of the Income-tax Act, in the Raleigh Investment Co.'s case.\n\nUnlike the Income-tax Act the Act does not provide a machinery for making a claim for refund or repayment on the ground of the unconstitutionality of the levy, and the jurisdiction of the civil court .in cases of refund is not taken away. Even in the class of cases to which\n\nthe provisions of ss. 83 and 85 of the Act, which are the only pro• visions providing a machinery under the Act for challenging an assessment, apply, they cannot be said to provide a sufficiently effective remedy to an assessee. A reference to the High Court is only at the discretion of the appellate or revisional authority and the person aggrieved has no right to move the High Court. Besides, in the Raleigh Investment Co.'s case, the expression \"assessment made\n\nunder this Act vvas given too wide a construction. because, it is difficq.lt to appreciate how taking into account an ultra vires provision. vvhich in law must be regarded as not being a part of the Act at all, will make the assessment as one under the Ac'.. [517G; 518B,\n\nF, H; 519A-B; 520D-F; 521H]\n\nThe exclUBion of the jurisdiction of the civil court is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. One of the corollaries flowing from the principle\n\nthat the Constitution is the fundamental law is that the normal remedy of a suit will be available for obtaining redress against the violation of a constitutional provision. Moreover the provisions of Art. 265 of the Constitution preclude the levy or collection of a tax except by authority of law, which means only a valid law. There was no\n\nprovision in the. va!ious Acts for the governance of India which preceded the Constitution and the decision in the Raleigh Investment Co.'s case was given in that context. Further under Art.\n\nBHANDAR v. MUNC. COMMl'l'TE>: (Mwllwlk11r, .I.) iiO I\n\nthe Constitution has provided a remedy to a citizen to obtain redress in respect of a tax levied or collected under an invalid law. and this remedy will not be affected by any provis'on like <. 67 of the\n\nIncome-tax Act, or s. 84(3) of the Act. [520G-H; 521C-E]\n\nThus, when the question merely is whether' the assessment had been made according to la\\v, the respondent having jurisdiction over the subject matter and the assessee, the provisions of s. 84(3) may be a bar to a suit. But, where the question raised is as to the jurisdiction of the respondent to procei; d against the assessee, and levy on or collect from him an amount in excess of that permitted by the Constitution, the n1atter \\\\ould be entirely out of the b:ir of that provision.\n\nPer Raghubar Dayal and Bachawat, JJ. (dissenting): The appellant's suit for the recovery of the tax r&alized in excess of Rs. 250 a year was rightly dismissed, as the correctness of the assessment of the tax could not be challenged by a suit in a civil court in view of s. 84(3) and as the provisions of s. 48, requiring the giving of notice\n\nto the respondent and the institution of the suit within a certain\n\nper'od, had not been complied w:th. [534H: 535A-B]\n\nThe suit was in essence a suit for, first, modifying the amount assessed and then to decree the payment of the amount held to have been paid in excess of the tax as modified by the court. But the act of aSiessing the tax or the consequential act of collecting the amount cannot be broken up into two acts, one, upto the legal limit and the other in excess of it. The act of assessment or of collection therefore\n\nwas an act done by the respondent under the provisions of the Act, though it acted \\\\'rongly in assessing the tax at an excessive figure, and consequently in collecting an amount in e:Xcess of that whicl:i could have been legally collected. The suit was therefore fully covered by s. 48 and had to be dismissed. [526E-HJ\n\nIn vie\\v of s. 84(3), exclusive jurisdiction 1.o determine the correctness of the amount assessed is g'.ven to the authorities mentioned in s. 83. The result is that no other authority can enter into the question of the correctness of the assess?nent on grounds of law or fact, and therefore the appellant's suit v.1as barred from the of the civil court. [527GJ\n\nRaleigh Investment Co. Ltd. v. Governor-General in Council, L.R. 74 I A. 50 and Firm of Illuri Subbayya Chetty & Sons v. State of\n\n\nPdo, ia City lvlunicipal Corporation v. Dattatraya Nagesh Deodhar, (1964] 8 S.C.R. 178. dist'nguished.\n\nCi1'iL APPELLATL .lURISD!CTION: Civil Appeals Nos. 600 and 679 of 1964.\n\nAppeals from the judgment and decree dated February :o, 1962 of'thc Bombay High Court (Nagpur Bench) at Nagpur in Appeals Nos. 196 and 195 cf 1956 from original decree.\n\nS. G. PatwardJzan, S. Murthv an-J B. P. Maheshwari, for ihe appellant (in CA. No. 600/64). ·\n\nS. N. Kherdekar and A.G. R.atnaparkhi, for the appellant (in CA. No. 679/64i.\n\nA. V. Viswanat/ia Sastri and M. S. Gupta, for the respondent <in CA. No. 600 / 64).\n\nA. fl. Viswanatha Sastri and M. S. Gupta for U. P. Singh, for the respondent (in C.A. No. 679 I 641.\n\nSUPREME COURT REPORTS\n\n(1965} 3 S.C.R.\n\nThe Judgment of Subba Rao, Mudholkar and Ramaswami, JJ. w:!s delivered by Mudholkar J. The dissenting Opinion of Raghubar Dayal and Bachawat, JJ. was delivered by Dayal, J.\n\nMudholkar, J.\n\nThis judgment will also govern Civ; I Appeal N,1. 679 of 1964 since common questions of law arise in both the appeals. For illustrating the points which arise for consideration in these appeals we will set out briefly the facts pertaining to C.A. 600 of 1964.\n\nThe appellant (hereinafter referred to as the Company) is a private limited comp2ny having its registered office at Calcutta and a branch office at Dhamangaon which was formerly in the Province of Central Provinces & Berar but is now in the State of Maharashtra. The company owns a ginning factory at Dhamangaon. The Notified Area Committee of that place imposed, under s. 66(1)(b) of the Central Provinces Municipalities Act, 1922 (hereinafter referred to as the Act) as applied to Berar, a tax at the rate of one anna\n\nper bajha of ginned cotton and one anna per bale of pressed cotton as from Dec. 22, 1936 en which date a notification sanctioning the Imposition under s. 241 (!) of the Act was published in the official\n\nGazette by order of the Government of the Province. The Notifi- .cation in question runs as follows: -\n\n\"No. 7911-3242-M-VIII :-In exercise of the powers conferred by clause (a) of sub-sec. (!) of sec. 241 of the Central Provinces Municipalities Act. 1922 (C.P. Act II of 1922) asapplied to Berar, the Local Government is pleased to confirm the following rule made by the Notified Area Committee, Dhamangaon, in the Amravati district, under clause (b) of sub-s. (!) of sec. 66 of the said Act, for imposing a tax on persons carrying on the trade of ginning and pressing cotton by means of steam or mechanical process within its limits: -\n\nRule\n\n1be committee shall levy from all persons cartying on within its limits the trade of ginning or pressing cotton into bales by means of steam or mechanical process a tax at the following rates from the date of the publication of this notification in the Central Provinces Gazette: -\n\n(a) For each bojha of 392 lbs. ginned-I anna. (bl For each bale of 392 lbs. pressed-I anna.\n\nBy order of the Government, (Ministry of Local Self-Government),\n\nSd / - R. N. Bannerjee,\n\nSi:cretary to Government,\n\nCentral Provinces,\n\nl!'\n\n!\\'.ALA nRANDAR t'. MUKC. COMMITTEE (Mud/wtkar, J.) 503\n\nThe Notified Area Committee of Dhamangaon decided to raise the rate from I anna per bojha and I anna per hale 10 four\n\nannas per bojha and four annas per bale. Soon after this decision it caused the following notification to be published in tl1e ofticictl\n\nGa7e1te on April IO. 1941. The Notification runs thus: --\n\n\"The following amendment to the rule for imn•.1'ition of the tax by the Municipal Committee, in the Amraoti district, under cl. (b) of sub-sec. (!) of sec. 66 of the Central Provinces Municipalities Act, 1922 (II of 19221 <:s '•P \"lied to Berar, on persons carrying on the trade of ginning <ind\n\npressing cotton hy means of steam or mechanical process within its limits, published in the Central Provinces and Bcrar Gazette Notification No. 7911-3242-M/VllI, dated the 22nd\n\nDec. 1936, is published for the information of the public, the same having hceri p\"evionsly published as required by subsection (3) of sec. 68 of that Act, and in exercise of the powers conferred by s.ub-sec. (7) of sec. 68 of that Act. the municipal\n\nC<lmmittee directs that the said amendments shall come into operation on the !st August, 1941 :-\n\nAmendment For the figure and the word 'I anna' occurrmg in clauses\n\n(a) and (b) of the rule, the figure and word '4 annas' shall be E substituted.\n\nSd/- B. S. Mundhada, President, Municipal Committee\n\nNo. 2418-M-XIIL\"\n\nCertain rules were framed by the Government for the assessrneut and collection of tax which were also published on Dec. 22,\n\n1936. These rules were, however, amended by the Local Government and the amended rules were published in the Gazette on July 30. 1941. It is these latter rules which are now in force.\n\nConsequent upon the amendment of the rules the appellants in\n\nthe two appeals and the proprietors of the ginning factory in Dhamangaon have been paying these taxes at the new rate of\n\n4 annas per bojha and 4 annas per bale.\n\nIt may be mentioned that in Dec. 1951 the Municipal Committee. Dhamangaon, which by then had replaced the Notified\n\nArea Committee proposed to raise the tax from four annas to one rupee per bojha and per bale but eventually dropped the proposal.\n\nApparently being alarmed at the abortive attempt of the Municipal Committee to raise the tax further, the appellant and other factory owners in Dhamangaon instituted suits for recovery from the Municipal Committee of excess tax paid by them within 3 years of the dates of the respective suits. The Company claimed refund of\n\nRs. 12,511-6-6 on the ground that it was recovered from it illegally\n\nSUPREME COURT REPOHTS (l 91i5] 3 S, C, R.\n\nby the Municipal Committee and paid by it under a mistake. The\n\namount has been computed by them thus: Rs. 6,905-14-6 recovered from them in respect of ginned cotton between 29-3-49 and some date in the year 1952 plus Rs. 8,048-8-0 in respect of pressed cotton\n\nrecov?red from them during the same period less Rs. 3,738-9-6 which was legally due from them thus totalling to Rs. 11 ,215-13-0.\n\nTo this they added Rs. 1,295-9-6 as interest by way of damages on\n\nthe aforesaid said amount at the rate of 9 per cent. p.a. In the plaint it was contended by the Company that after the coming into force\n\nof s. 142A of the Government of India Act, 1935 (which came into effect from 1-4-1939) till January 25, 1950 a tax on trade,\n\nprofession or calling in excess of Rs. 50 /- per annum could not be imposed either by a Provincial Government br by a Local Body. Nor again, could an existing tax on trade, profession or caLLing be raised further so as to exceed Rs. 50 /- per annum. T))e Company further pointed out that after the coming into force of the Constitution the upper limit of the tax was raised to Rs. 250 I -\n\nper annum and that as the Company was already paying more than this amount per year even at the rate of one anna per bbjha D and one anna per bale recovery from tllem at the enhanced rate of 4 annas was illegal with effect from April 1, 1939. The Municipal Committee contended in its written statement that the provision of s. 142A of the Government of India Act and Art. 276 of\n\nthe Constitution which limit the tax on professions. trades or callings or employments to Rs. 50 and Rs. 250 per annum respectively do not apply to a case such as the present where therti is no imposition of a new tax but only an enhancement of the rate of an existing tax. It further contended that the tax in question at\n\nthe rate of 4 annas per bojha and 4 annas per bale was in existence when Art. 276 came into force and is saved by thut Article. According to the Committee. the Company is not ent; tled to claim back the amount paid by it under s. 72 of the J ndian Contract Act or the general law; This contention, however, was negatived by the trial court and does not appear to have been reiterated before the High Court. Nor again was it pressed before us by Mr.\n\nViswanatha Sastri who appears for the Municipal Committee. The\n\nprincipal contention which was. pressed before the trial court and raised before the High Court was that the Company's suit was bad for non-compliance with the requirements of s. 48 of the Act and that is the point which we have to consider in this appeal.\n\nSec. 48 of the Act reads thus:\n\n\"(!) No suit shall be instituted against any Committee or any member, officer or servant thereof or any person under the direction of any such committee, member, officer 0; servant for anything done or purporting to be done under this Act, until the expiration of two months next after notice in writing statin¥ the .cause ?f .action, the name and place of\n\nabode of the mtending plamttff and the relief which he claims,\n\nl!'\n\nKAI.A BHA\"DAR I!. \"\"\"('.· CO>!>!l1'TEE (, llwllwlkm, J.)\n\n50G\n\nhas been, in the case of a committee, delivered or left at ils office, and, in the case of any such member, officer or servant or person as aforesaid, delivered to him or. left at his office or usual place of abode, and the plaint shall contain a state ment that such notice has been w delivered or left.\n\n(2) Every such suit shall be dismissed unless it is instituted within six months from the date of the accrual of the alleged cause of action.\" Mr. Patwardhan for the appellant contends that this was a case of recovery of an illegal tax and. therefore a claim for its refund tdl outside the provisions of s. 48 of the Act. In support of his\n\ncontention he relied upon a number of decisions and we will proceed to examine them.\n\nThe first of these cases is Municipal Committee, Karanja v.\n\nNew East India Press Co. Ltd., Bombay('). That was also a case where enhancement of a tax was made by the Municipal Committee of Karanja after March 31, 1939 in excess of Rs. 50 per year payable by one person. There, a Division Bench of the High Court held, that the enhancement was in contravention of s. l 42A of the\n\nGovernment of India Act, 1935 and was illegal, that a suit for refund of the tax is maintainable by the person who has paid the tax and that such a suit is not barred by the provisions of ss. 148, 83 or 84 of the Act. The relevant observations of Bose A.C.J. (as he then was) who delivered the judgment are as follows:\n\n\"It was then argued that the Civil Courts have no jurisdiction because of sections 83 and 84 of the Central Provinces Municipalities Act as applied to Berar. It was said that that Act provides for remedies in cases of wrongful recovery of taxes. Therefore, the jurisdiction of the civil courts is barred.\n\nA large number of cases have dealt with this question but we need consider only two of the latest decisions. In District Council, Bhandara v. Kishorilal (Civil Revision No. 220 of of 1946 decided on the 25th June, 1948) one of us (Bose, J.) held that provisions corresponding to sections 83 and 84 come into play only when the Municipal Committee acts within the scope of its authority, that is to say, when it is acting or purporting to act under the Municipalities Act. It is pointed out\n\nthere in respect of this very section of the Government of India Act, sec. 142-A, that when a Municipality is prohibited\n\nby law from imposing a tax in excess of a certain amount then it cannot be said to be acting either under the Act or purporting to act uncler the Act if it exceeds that amount. and in such a case the jurisdiction of the Civil Courts is not barred. Here again we may refer to the fact that in the Privy Council case Radha Kishan Jaikishan (Firm) v.\n\nMunicipal Committee, Khandwa('), this objection does not appear to have\n\n(') l.L.R. [19481 Nag. 971. (') [l93n] 30 Nag. L.R. 12! \\P.C.)\n\nSUPREME COURT REPORTS [1 !JG5] :l s.o.R.\n\nbeen taken. It is hardly 1; kcly that it would have been omitted had there been any force in the contention.\n\nIn the present case, as in District Council. Blwndara v.\n\nKishori/a/ the Municipality is seeking to recover sums which thl' hw has prohibited it from taking, in the shape of taxes.\n\nAccordingly, as it is acting wholly without jurisdiction, the claims lie and are not barred by reason of sections 83 and 84.\n\nThen it was stated that the claims are barred by sec. 48 of the Municipalities Act. There again the same considerations apply. Sec. 48 comes into play only when the act is done or is purported to be done under the Municipalities Act.\n\nAs we have said, that is not the case here because its action is something which is prohibited by law, and so wholly beyond its jurisdiction, and therefore section 48 does not apply. The distinction between a case where section 48 applies and a case where it does not is clearly shown in The A mraoti Town Municipal Committee v. Shaikh\n\nKishorilal's case to which reference is made in the above quotation is a decision of a Division Bench upon a reference made by Bose J. and which, though rendered earlier, has been reported in 1.L R. 1949 Nag. 87. In that case a tax imposed by the District Council, Bhandara under a similar provision of the Local Self- Government Act, 1920 at the rate of three pies per khandi on persons carrying on trade of husking, milling or grinding of grains was raised by it to one an11a as from April I. 1942 with the sanction of the Provincial Government. ft was contended on behalf of the respondent that the recovery was illegal. Since the matter involved. the interpretation of s. I 42A of the Government of India Act, 1935 Bose J, acting under me of the rules of the High Court referred it to a Division Bench. This is what the Division Bench held:\n\n\"We are clear that the tax in question is a tax which can be so termed. This was in fact conceded in the Court below and the contention raised before us that the persons who gave grain to Kishorilal for grinding and not he were the trader' ed was plainly devoid of force. He had a mill \"nc! with it carried on the trade of milling grain. The tax in question was recovered from him because of this and it was one of the taxes hit by section 142-A of the Government of India Act, !935. and the Professions Tax Limitation Act, 1941 (XX of 1941).\"\n\nWhen the matter went back before Bose J., it was contended on behalf of the District Council that the suit was barred altogether by the provisions of s. 71 and that the provisions of s. 73 make the issue of ;1 notice by the Distt. Council a pre-condition for the institution of a suit of the kind before him. Reliance was placed on a\n\n' (') I.L.R. [!939) Nag. 216, 219, 220.\n\nKALA BHANDAR v. MUNC. COMMIITEE (M11dholka.r, J.) 507\n\ncertain rule framed under s. 79(1) (xxix) of the Central Provinces Local Self-Government Act, 1920 After quoting s. 71 and the rule relied on the learned Judge observed :\n\n\"It will be observed that both section 79 and the rule are confined to orders and decisions given under the Act. It is impossible to say that an order which contravenes the law or is made in the face of an express statutory prohibition can be said to be under the Act. The words \"purporting to be given\" or \"made under the Act\" are not present in this section and so the difficulty which arises regarding the other point is not present here. I hold that the suit is not incompetent on this score.\"\n\nPointing out that the other question urged before him was more difiicult the learned Judge said that his conclusion was that what was done in the case was not \"under the Act\" and. therefore. what remained for consideration was whether it was \"purported to\n\nbe done\" under the Act. He came to the conclusion that what was done was not \"purported to be done under the Act\" and expressed himself thus:\n\n\"Now this expression has recently been interpreted by their Lordships of the Privy Council in H.H.8. Gill v. The King(') also in Hori Ram Singh v. The Crown(') of which their Lordships approved. The question is a difficult one and as Varadachariar J. observed in the Federal Court decision at p. 187. it is neither possible nor desirable to lay down any hard and fast rule. The question is substantially one of fact and \"must be determined with reference to the act complained of and the attendant circumstances.\" I think, however, that the following\n\ntest which their Lordships of the Privy Council laid down concludes the matter so far as this Act is concerned. Their Lordships say: \"A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty.\" Now I can understand it being said that an act which is within the scope of an official duty cannot be taken out of that category simply because it is carelessly or negligently performed, but I cannot see how an act which is expressly prohibited by Jaw can be said to lie there. If a magistrate directed to supervise a sentence of whipping duly imposed by a competent Court has the wrong man whipped by mistake or imposes more lashes than warranted. I can understand him being protected. He is there acting within the scope of his duty. But if. instead of having the man whipped. he has him branded with a hot iron he would not, in my opinion, be able to claim the protection. In the same way I cannot see how a Municipal Committee can\n\n(') A.LR. [1948] P.C. 128. c•r 19391 F.c.R. 159.\n\n508 COUUT Rl<iPORTS [J 96ii) :J S.C.R.\n\nbe said to be acting 'under the Act.' when it does that which is A expressly prohibited by \"the Legislature. Say it purported to tax salt. Its action would not be covered by sec. 73 because the Constitution Act makes that an exclusively Central subject.\n\nSay also a municipality attempted to tax marriages or births.\n\nthat would be completely beyond its province and it could not be heard to say that because it has been given certain limited B powers of taxation, therefore it 'purports to act' under the Act wha tcver the nature of the tax it attempts to impose. In the same way, if the Le:; islature limits the authority of the Committee tc a '.Tiaximum of Rs. 50 I do not think it can be sciid\n\nto purport to act within the scope of the Act if it beyond its limited provisions.\" C\n\nA reference may be made to the decision in The Amraoti Town Municipal Committee v. Shaikh Bhikan(') which apparently takes a contrary view. There f:'liyogi J., sitting singly has held that a suit against a munic; pal committee for the recovery of a tax illegally collected is governed bys. 48 of the Central Provinces Municipalities Act, and, is, therefore, barred by limitation if not filed D within six months of the. date of the co1J11ction of the tax. That case is, however, distinguishable in that there was no prohibition to the levy of the tax and all that had happened was that proper procedure had not been followed in imposing the tax. This was thus a case of something purporting to be done under the Act but not done strictly in accordance with the provisions. That such a case would E squarely fall within the ambit of s. 48 cannot be questioned. But the point is whether what was done by a local body under the colour of an Act can be regarded as something purported to be done under the Act even though neither the local body nor even the State Legislature has the power to do what was in fact done.\n\nThe next case referred to was Gajadhar Hirata/ v. Municipal Committee, Washim('). That was also a case in which a tax on bojhas and bales of ginned cotton was raised from Re. 0-2-3 per bale to Re. 0-4-0 per bale and the learned Judges held, following the decision in the New East India Press Co.'s case(') that the enhancement was ultra vires of Art. 276 of the Constitution. The other question did not arise for consideration in this case. This decision is, therefore, of little assistance to us, because it is not contended before us that the enhancement of the tax is valid.\n\nThere is, however, another decision in the. same volume at p. 483 (The Municipality of Chopda v. Motila/ Manekchand) which is relevant for consideration in this appeal. In that case a\n\nDivision Bench, while pointing out that the particular tax which was levied by the Municipality was in substance a tax on trade within the meaning of Art. 276 of the Constitution and being in\n\n(') I.L.R. [1939) Nag. 216. (') I.L.R. [1958) Born, 625. ,_ (') T.L.R. [19-18) Nog. 971.\n\nKALA BRANDA!\\ V. MUNO. COMMITTEE (Mudholkar, J.) 509\n\nexcess of Rs. 250 p.a. was beyond the competence of the Municipality, held that a suit for its refund beyond the time prescribed by rules was barred by limitation. According to the learned Judges the levy of the tax though beyond the authority of a Municipality was \"an act done in pursuance or execution or intended execution of the Bombay District Municipal Act\" and was merely a wrongful\n\nact as distinguished from an ultra vires or illegal act. In coming to this conclusion they followed a previous decision of the High Court in Jalgaon Borough Municipality v. The Khandesh Spin ning and Weaving Mills Co. Ltd.('). Incidentally we may mention that an appeal was brought before this Court from that part of\n\nthe decision in The Municipality of Chanda, East Khandesh v.\n\nMotilal Manekchand Press Factory, Chanda(') which held that the levy was unconstitutional. Ayyangar J. who spoke for the Court has stated towards the end of the Judgment as follows:-\n\n\"In the circumstances the correctness of the decision of the High Court in holding the impugned levy to be a tax on 'callings or employments' and therefore subject to a pecuniary limit of Rs. 250 per year does not really arise for consideration. The respondents had in their plaint, no doubt, challenged the entirety of the levy and sought relief on that basis, but they had however pleaded in the alternative that the tax might be held to be one on 'a trade etc.' and therefore within Art. 276(2) and claimed relief on this footing in the alternative. The learn ed Civil Judge had accepted this alternative contention and had granted them a decree on that basis and\n\nthe respondents had not challenged the correctness of that decision by preferring an appeal; and the learned Judges of the High Court had accepted this view of the nature of the levy.\n\nWe however consider it proper to add that there is considerable force in the opinion expressed by the High Court that the\n\ntax in question. at the date when the same was challenged, being a levy imposed on persons carrying on the business of pressing cotton, was a tax on 'professions, trades, callings, or employments' and that the learned Jndges of the High Court came to a correct conclusion that the respondents were entitled to the declaration which was granted as regards the maximum\n\namount of the tax th2t could be levied from the respondents \"\n\nIn Bornur, h Municipality's case(') on which the High Court :eiied in Mo'.i'.al case, what had happened H was !h.1s: The Mumc1pahty actmg under s. 73(iv) of the Bombay Mumc1pal Boroughs Act, 1925 levied octroi duty on fuel oil or furnace oil under certain rules and by-laws framed by it with the\n\nsanction of the Government which provided for thP levy bf an octroi duty on various articles including 'oils used for machinery'.\n\n(') M Bom. L.R. 65.\n\n(1) C.A. No. 168of1901 decided on Mo.rob !!, 1962\n\n(1) 55 Bom. L.R. 65. ' Lfl'I!{} '30 [ -5\n\n510 SUl'l\\Wi'.111 OOUl\\T l\\EPOIITB [1966] 3 a.o; a.\n\nIt was found that the Municipality was not entitled to levy any octroi duty on fuel oil or furnace bi1 which was not comprised within the items enumerated in the octroi rules and by-laws. The respondent who had paid the tax instituted a suit for its recovery.\n\nOne bf the questions which arose for consideration was whether\n\nthe provisions of s. 206 of the Bombay Municipal Boroughs Act, 1925 corresponding to those of s. 48 of the Central Provinces and Berar Municipalities Act, 1922 applied tb the case. The learned Judges of the High Court held that what the municipality did was not an act done in pursuance of the Act. but it was an act which it purpcY'ted to do in pursuance of the Act and that there fore its action was well within the terms of s. 206. In the course of the judgment Bhagwati J.. observed that the acts which fell within the c; ltegory of those \"don.e or p11rporting to have been done in pursuance bf this Act\" could only be those which were done under a vestige or semblance of authority or of a shadow of right. If an act was outrageous and extraordinary or ·<; ould not be supported at all, not having been done with a vestige or\n\nbf or a shadow of !nvested in the party domg that act, 1t would not be an act which ls done or purported to have been done in pursuance of the Act. The distinction is really between ultra vires and illegal acts, on the one hand, and wrongful acts, on the other-wrongful in the sense that they purport to have been done in pursuance of the Act; they are intended to have been done in pursuance of the Act if they are done with a vestige or semblance of authority, or a sort of a right invested in the party doing those acts. The learned Judge then referred to cer tain decisions and said that under s. 73(iv) of the Act power was given to the Municipality to impose octroi duty on articles and goods imported within its jurisdiction. What had happened there was that the defendants, on the interpretation which they gave to the words \"oils used for machinery\", did something which ultimately, on an adjudication in that behalf, the court found tb be wrong.\n\nBy acting in that way what the Munidpality purported to do could not be said to be illegal or outrageous and extraordinary or done without having any vestige or semblance of authority or without even a shadow of a right.\n\nApart from the fact that much of what was said In this case Is opposed to a recent decision of this Court to which we will presently make a reference certain observations made by Bhagwati J., in fact lend support to the <irgument advanced before us by Mr. Patwardhan. The observations we have in mind are to the effect that where a municipality, not having the power to levy a particular tax at all, either wholly or in regard to some classes of goods, had purported to levy the same it would certainly be an act which was \"outrageous and extraordinary, or done without having any vestige or sernb lance of authority or without even a shadow of a right\". Here, the overstopping of its authority by the Municipality con.sists not in the matter of the selection of a class of good11 but of that of the rate at\n\nLlL.l BllANDAB v. KUNC. COWIITTEE (Mwfholkar, J.) 5Jl\n\nA which it has levied and collected a tax. It has levied and collected a tax beyond constitutional limits. Therefore, to the extent it has done so the tax could properly be said to have been levied without a vestige or semblance of authority or even of a shadow of right.\n\nWe may now refer to the recent decision of this Court in The B Poona City Municipal Corporation v. Dattatraya Nagesh Deodhar('). That was a case in which the Municipal Corporation had imposed a tax on the refund of octroi duty collected by it on goods imported within the Municipal limits of the city. Its practice was to deduct the tax from the amount which it was required to refund a\n\nand pay the person entitled to the refund only the balance. A suit was instituted by the respondents for refund of the amount illegally deducted by the Corporation from the octroi refund made by the Corporation to the respondents. It was contended on behalf of the Corporation that the deduction made by it was valid and that the suit was barred by limitation. This Court upheld the contention of the respondents that the Corporation had no power to impose the D tax and that in fact there was a prohibition against the imposition\n\nof such a tax by the Corporation. On the plea of limitation, which was founded upon the provisions of s. 487 of the Bombay Act which are almost the same as those of s. 48 of the Act with which we are concerned, this Court observed : •\n\n\"The benefit of this section would be available to the Corporation only if it was held that this deduction of ten per cent was 'an act done or purported to be done in pursuance or execution or intended execution of this Act.' We have already held that this levy was not in pursuance or execution of the Act. It is equafty clear that in view of the provisions of s. 127\n\n(4) (to which we have already referred) the levy could not be said to be 'purported to be done in pursuance or execution or intended execution of the Act.' For, what is plainly prohibited by the Act cannot be claimed to be purported to be done in pursuance or intended execution of the Act.''\n\nSub-sec. (4) of s. 127 of the Act to which this Court has referred is in the following terms :\n\n\"Nothing in the section shall authorise the imposition of any tax which the State Legislature has no power to impose in the State under the Constitution.\" It is pertinent to bear in mind that the conclusion of this Court on the question whether the act was \"done or purported to be done\" under the Act was not based solely on this provision and reliance was placed upon it as affording additional support to the conclusion already arrived at. It seems to us that this provision was enacted by way of abundant caution. For, the Constittltion is the\n\n(') [1914] I S.C.B. 178.\n\nt>l2\n\nSUPREME COURT REPORTS [1965] 3 s.c.R.\n\nfundamental law of the land and it is wholly unnecessary to provide in any law made by the Legislature tha!t anything done in disregard of the Constitution is prohibited. Such a prohibition has\n\nto be read in every enactment. This decision does appear to conclude the matter.\n\nB During the pendency. of the suit before the trial court the appellant had preferred a writ petition before the High Court at Nag; pur in which it contended that the notification of April 10, 1941 enhancing the tax from one anna per bojha and one anna per bale to four annas per bojha and four annas per bale was illegal and\n\nultra vires and should therefore be quashed. This petition was , granted by the High Court on April 12, 1955. There was, therefore, C a direct decision before the trial court and the appellate court\n\nwhich though it could not be treated as res judicata was binding on those courts and was treated as such by them and it is perhaps because of this that it was not sought to be urged on behalf of the Municipal Committee when the second appeal was argued before\n\nD the High Court that the notification is valid and, therefore, the Municipal Committee could recover the tax at the enhanced rate.\n\nThough Mr. Viswanatha Sastri did say that the decision of the High Court is not res judicata he did not directly challenge its correctness. What he argued was as follows: The levy of a tax on professions, trades, callings etc. was within the power of the Provincial Legislature and is now within the power of the State Legislature. It could in the past\n\nand can even now levy such a tax at the rate of 4 annas per\n\nbojha and 4 annas per bale, that both uQder s. 142-A of the Government of India Act and Art. 276 of the Constitution the Municipal Committee could collect such a tax to the constitutional limit (which was formerly Rs. 50 p.a. and is after the coming into force of the Constitution Rs. 250 p.a.).\n\nThe mischief, according to him, is not in the levy but in the realisation of an excess over the limit. To put it differently, the ban is not upon the rate of tax but upon excess collection thereof. Therefore, the collection of a tax above the constitutional limit was not without jurisdiction but only illegal or irregular. A suit by an assessee to recover the amount paid by him in excess of the constitutional limit would therefore be iv respect of a matter \"purported to be done\" under the Act and the provisioru; of s. 48 of the' Act would apply to it. Further according to him every suit against a Committee for anything done or purported to be clone under the Act must comply with the conditions laid down in the section.\n\nHe points out that the of the tax was made by an authority competent to make an assessment, that in making it the authority proceeded in accordance with the provisions of th0 Act and assessed the tax as authorised by Rules which had been sanctioned by the former Government of Central Provinces and Berar. So, even if it is assumed that any of\n\nKAI.A BHANDAR v. MUNO. COMMITTEE (Mudlwlkar, J.) 513\n\nthe Rules were ultra vires and therefore the assessment and recovery of the tax was illegal, what the authority had done was something purported to be done under the Act. Some of these arguments were advanced in cases discussed earlier and rejected.\n\nIn support of his contention he placed reliance on the decisions in Richard Spooner and Bomanjee Nowrojee v. Juddow(') and\n\nDhondu Dagdu Patil v. The Secretary of State for India('). These cases were not pressed in aid in the decisions so far considered and we would deal with them now.\n\nBefore we deal with these cases it is necessary to point out the rationale upon which s. 142-A of the Government of India Act,\n\n1935 was enacted and on which Art. 276 of the Constitution now rests. It is that the legislative spheres of the Provinces and the Centre came to be clearly demarcated in regard to items falling within Lists I and II of Schednle VII of the Government of India Act and now to those falling within the same lists of Schedule VII of the Constitution. Taxes on professions, trades, callings and employments are taxes on income and are thus outside the provincial I and now State-list and belong exclusively to Parliament and before that to the Central Legislature. Yet under a large number of laws enacted before the Government of India Act, 1935 came into force, power was conferred on local governments and local authorities to impose taxes on such activities. This was obviously in conflict with s. I 00 of the Government of India Act. When this was realised s. 142-A was enacted by the British Parliament which saved the power conferred by pre-existing laws\n\nbut limited the amount payable to Rs. 50 after 31st March, 1939.\n\nA saving was made. however, of pre-existing laws subject to certain conditions with which we are not concerned. The provisions of this section have been substantially reproduced in Art. 276 of the Constitution with the modification that the upper limit of such tax\n\npayable per annum would be Rs. 250 instead of Rs. 50. A tax can be recovered only if it is 'payable' a!Ild it would be payable only after it is assessed. It is, therefore, futile to contend that the ban placed by the aforesaid provisions extends only to recoveries and not to an earlier stage.\n\nNow coming to the cases, the first was one in which the question considered by the Privy Council was whether the Supreme Court at Bombay was competent to entertain a suit for recovery of damages brought by one Hurkissondas Hurgovundass against the\n\nCollector of Bombay and others in respect of trespass and nuisance committed by certain officers of the Collectorate while purporting to execute a distress warrant issued against one Narrondass for nonpayment of arrears of land revenue. Under the letters Patent dated Dec. 8, 1823 the jurisdiction of the Supreme Court was barred \"in any matter concerning the revenue under the management of the\n\n(') 'M.I.A. 353, 379. (') I.L.R. 37 Bom. IOI, 106.\n\nSUl'IIEME OOUllT llEPOllTS\n\nI.CJ.II.\n\nsaid Governor and Council of Bombay respectively ...... or concerning any act done according to the usage and practice of the country. or the regulations of the Governor and Council of Bombay aforesaid.\" Similar provisions were contained in s. 8 of Statute 21 Geo.\n\nIII, c. 70. The Supreme Court over-ruled the defendant's contention on the ground that what was due from the plaintiff was not revenue but a perpetual ground rent which was incapable of being enhanced and could not be regarded as revenue at all. After holding so Lord Campbell who delivered the opinion of the Judicial Committee observed:\n\n\"The point. therefore, is, whether the exception of jurisdiction only arises where the Defendants have acted strictly. according to the usage and practice of the contrary. and the Regulations of the Governor and Council. But upon this supposition the proviso is wholly nugatory; for if the Supreme Court is to inquire whether the Defendants in this matter concerning the public revenue were right in the demand made, and to decide in their favour orJy if they acted in entire conformity to the Regulations of the Governor and Council of Bombay, they would equally be entitled to succeed, if the Statutes and the Charters contained no exception or proviso for their protection. Our books actually swarm with decisions putting a contrary construction upon such enactments, and there can be no rule more firmly established, than\n\nthat if parties bona fide and not absurdly believe that they are acting in pursuance of Statutes, and according to law, they are entitled to the special protection which the Legislature intended for them, although they have done an illegal act. In this case it may well be that the warrant against the goods of Tookaydass did not authorise the taking of the goods of Hurgovindass, or even that Hurgovindass might not be liable for\n\nthe arrears of 'quit rent' , which. accrued before he became owner of the house. Still the Collector was evidently of opinion, that a distress might be made for the whole of the arrears due, and that it was sufficient to introduce into the warrant the name of Tookaydass, in. whose name the house continued to be registered. The other Defendant never could have doubted the sufficiency of the warrant. If Indian revenueoflicers have fallen into a mistake, or without bad faith have been guilty of an excess in executing the duties of their office, the object of the Legislature has been, that they should not be liable to be sued in a civil action before the Supreme Courts.\" Later in his opinion Lord Campbell said:\n\nHlf it concerned the revenue, or was a matter concerning an act bona fide believed to be done according to the Regulations of the Governor and Council of Bombay, his (i.e., of the Judge of the Supreme Court) jurisdiction was gone, although prima\n\nKALA BllANDAR V. MUNC. C0!4MITTEI (MudhQfkar, J.) 515\n\n.6. facie it appeared to be a trespass over which his jurisdiction might be properly exercised.\"\n\nThis case would have assisted Mr. Sastri only if what was done was something which could legally have been done by the Municipality but was wrongly done by it as, for instance, the collection B of a lawful tax from a person other than the one from whom it was due. But this decision is no authority for the proposition that if the Collector recovered or tried to recover from a person a sum of money as arrears of land revenue even though it did not fall within the definition of revenue or tried to collect a sum of money which he was expressly .prohibited by law from collecting, he would still o be said to have purported to act under the revenue law which empowered him to collect land revenue. If an act of trespass was committed in execution of a distress warrant for recovery of such monies. a suit for damages would not have been barred.\n\nIn the next case what the High Court was dealing with was D the claim of the plaintiff against the Government for damages occasioned by the wrongful cancellation of his licence to sell liquor. The suit had been dismissed by the trial judge as barred by the provisions of s. 67 of the.Bombay Abkari Act, 1878, firstly because the Collector had acted bona fide in pursuance of the Act and secondly because it was not instituted within four months from z the date of the act complained of. The High Court upheld the dismissal of the suit and in the course of its judgment observed:\n\n\"It is quite true that the Collector's action is not strictly in conformity with the section which authorises the revocation only on the actual conviction of the licensee. But the circumstances under which the Collector acted are so near the circumstances legally entitling him to act as he did that we feel bound to say the act was done in pursuance of the Statute.\n\nThe law upon this point may be found stated in many cases, of which we may notice Hermann v. Saneschal('). In strictness, anything not authorized by a Statute cannot be said to be in pursuance of it, while if it is authorized by the Statute clearly it would need no other protection. But if effect were given to such a construction it would altogether do away with the protection intended to be given; accordingly the general principle is that if any public or private body charged with the execution of a Statute honestly intends to put the law in motion and really and not unreasonably believes in the existence of facts. which, if existent. would justify his acting and acts accordingly, his conduct will be in pursuance of the Statute and will be protected.\"\n\nThe learned Judges then referred to Spoonu' s case(') also.\n\nMr. Sastri laid particular emphasis on the concluding portion\n\n(') [1862] a' L.J.C.P. 43.\n\n(') 4 M.I A. 363, 379.\n\n516 SUPRElllE COURT REPORTS [1961i] 3 8.C.ll.\n\nof the observations quoted above. This again, it may be said, is A not a decision which is quite in point. There was no want of jurisdiction in the Collector to do what he did but there was only the absence of facts which, had they existed would have given him power to do what he did. Cases of this type must be distinguished from those like the present in which we must imply a constitutional or statutory prohibition against the act done. Where such prohibi- B tion exists or can be implied, anything done or purported to be done by an authority must be regarded as wholly without jurisdiction and is not entitled to a protection of the law under colotll' of which that act was done.\n\nIt is true, as urged by Mr. Sastri, that it was within the competence of the respondent committee to raise the rate of tax from one anna to four annas per bojha and bale even after the coming into\n\nforce of s. 142-A of the Government of India Act, 1935. The levy of tax at that rate cannot, therefore, be regarded to be beyond the jurisdiction of the respondent so long as the constitutional limit was not exceeded. What is, however, contended on behalf of the appellant is that the action of the Committee in compelling it to pay the tax in excess of the amount which was constitutionally recoverable from it in respect of any one year was ultra vires,\n\nthat thereby the provisions of section 142-A have been transgressed and, therefore, this was a case of utilization by the Committee of the provisions of the Act and the rules made thereunder for doing something which was prohibited by the Government of India Act, 1935 and is now, by the Constitution. It is true that the Committee had jurisdiction to recover an amount up to the constitutional limit. But it cannot fairly be contended on its behalf that merely because of this, that the recovery by it of an amount in excess of the constitutional limit was only irregular or at the worst illegal. Where power exists to assess and recover a tax up to a particular limit and the assessment or recovery of anything above that amount is prohibited the assessment or recovery of an amount in excess is wholly without jurisdiction and nothing else.\n\nTo such a c;, i, se the Statute under which action was purported to\n\nbe taken can afford no protection. Indeed, to the extent that it affords it would be bad. But where, as here, the validity of a prov1s1on of a statute can be upheld upon a possible construction of that provision it w.ould be the duty of the court to so construe it as to avoid rendering the provision unconstitutional\n\nand reject a construction which will invalidate the provision. ll The final contention urged by Mr. Sastri is based upon the . decision of the Privy Council in Raleigh Investment Company Ltd.\n\nv. in Council('). IIis argument is that the Municipalities Act contains adequate provisions dealing with refund of\n\ntaxes and that the provisions of s. 85(2) bar a suit for recovery of a\n\n(') 7' I.A. 50\n\nKALA BHANDAR v. \"1UNC. COMMITTEE (Mui!holkar, J.) 517\n\ntax wrongfully recovered by tbe Municipal Committee. It may be mentioned that the contention was not raised in the suit or in the grounds of appeal before the High Court and has not therefore been considered by it. It has been raised for the first time in the statement of case. But the scope of an appeal cannot, even at the instance of the respondent who is entitled to support a decree in his favour even upon a ground found against him by the High Court, be permitted to be enlarged beyond that of the appeal before the High Court or the courts below. But as it is a question of consider able importance and might be raised in other similar suits which are said to be pending, we propose to deal with it.\n\nBefore dealing with Raleigh Investment Co.'s case(') we may refer to the provisions of the Act which Mr. Sastri placed before us.\n\nSec. 83(1) provides for an appeal against the assessment or levy of or refusal to refund any tax under the Act before the Deputy Commissioner and sub-s. ( 1-A) for a revision before the State Govern ment. Sub-sec. (2) provides that if the authority hearir.g the appeal\n\nor revision entertains a reasonable doubt on any question as to the liability to or the principles of assessment of a tax it shall draw ap a statement of the facts of the case and the point on which the doubt is entertained and refer the statement with his 0wn opinion on the point for the decision of the High Court. There is, however. no express provision like that of s. Jl(J) or s. 33(4) of the Indian Income-tax Act entitling the assessee to a hearing either in the appeal or revision petition. Section 85 empowers the State Govern ment to make rules for regulating the refund of taxes, and such\n\nrules may impose limitations on such refunds. Subsection (2) thereof provides that no refund of any tax shall be claimable by any person otherwise than in acc<irdancc with the provisions of this Act and the rules made thereunder. This sub-section can be availed only if the Act or the rules provide for making a claim for refund. The rules relating to refunds. if there are any, were. however, not placed before us. Nor was our attention drawn to any provision of the Act or to any rule which makes it obligatory upon a person to apply to the Municipal Committee for a refund of a tax. Even assuming that the Act contemplates obtaining a refund only upon compliance with rules made thereunder, does it contemplate cases where refund or repayment on the ground of the unconstitutionality of the levy? It will be noticed that sub-s.\n\n(I) of this section empowers the State Government to impose by rules limitations on the refunds-presumably including limitation on the amount of refunds-and subs. (2) bars a claim for refund otherwise than in accordance with the rules made under sub-s. (!).\n\nThese provisions cannot possibly apply to case where the right to obtain a refund or repayment is based upon the ground that the action of the Committee was in violation of a constitutional provision. To hold otherwise would lead to the startling result\n\n(1) 74 I.A. 60.\n\n8U¥.Ulllll COURT &SPORTS (!1160j S i.C.R.\n\nthat what was incompetent to the State Legislature to do or authorise a commillee lo do directly can be permitted to be done indirectly by empowering the State Government to make rules for refund whercunder the amount of refunds could be so limited as lo permit retention by the committee of the tax recovered by it in excess of the constitutional limit. In our view. therefore, s. 85 of the Act cannot, in any event, be said to provide a machinery for obtaining refunds in cases of this kind. Since s. 85\n\nis inapplicable, a fort; ori s. 83 cannot apply either. We must therefore procc•; d on the footing that the Act does not provide a machinery for making a claim for refund or repayment in such cases.\n\nIt would be pertinent to advert also to the provisions of s. 84. sub-s. (3) of which deals with \"Bar of other proceedings\". Sub-s. (I)\n\nprovides for the period of limitation for an appeal under s. 83(1).\n\nSub-sec. (2) empowers the appellate authority to require the assessee to deposit the tax before the hearing or the decision of the appeal.\n\nSub-sec. (3) is in the following terms:\n\n\"No objection shall be taken to any valuation. a!ISCSSment, or levy. nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other\n\nauthority than is provided in this Act.\" It \"ill be seen that there is no express mention of a civil court in this sub-section ;1s there was in s. 67 of the Indian Income-tax Act,\n\n1922. In facts. 48 of the Municipalities Act contemplates the institution of a suit ; ubject to fulfilment of certain conditions and thus indicates that it was not the intention of the legislature to the machinery provided by the Act exclusive. But even if a bar to the jurisdiction of a civil court be assumed or implied, there is an absence of a reference to \"refund\" in sub-s. (3) of s. 83. In other V.ords, no finality seems to have been given io a decision rendered\n\nby an authority under s. 83 refusing to refund a tax improperly or illegally assessed or recovered. In the light of circumstances we have to consider the applicability of the decision in Raleigh\n\n/11l'estmc111 Co.'.1 case('). In that case the Privy Council considered the effoct of certain provisions of the Indian Income-tax Act, 1922 which prescribed remedies to an assessee who sought to challenge the assessment made against him and also the provi5ions of s. 67.\n\nThe relevant portion of s. 67 was that \"no suit shall be brought in any civil court 10 set aside or modify any assessment made under this Act ........ \". After examining all these provisions the Privy Council said that an effective and appropriate machinery was provided by the Act itself for the review of any assessment on grounds of law, including the question whether a provision of the Act was\n\n11/tra 1•ires and it was in that setting that s. 67 had to be construed.\n\nThen it went on to say that the phrase \"assessment made under this\n\nAct\" in s. 67 meant an assessment finding its origin in an activity of acting as such and that the circumstance that\n\n(') 7U.A. llO.\n\nuu :aHJ.NDil •· 11.u:ac. 0011.11.1'.!Tn (JlJ./iolkar, l.) lag\n\nhe had taken into account an ultra vires provision of the Act was in that view immaterial in determining whether the assessment was \"made under this Act.\" But, with respect, we find it difficult to appreciate how taking into accouat an ultra vires provision which in law must be regarded as not being a part of the Act at all, will make the assessment as one 'under the Act'. No doubt the power to make an assessment is conferred by the Act and, therefore, making an assessment would be within the juriildiction of the assessing autho rity. But the jurisdiction can be exercised only according, as well as with reference, to the valid provisions of the Act. When, however, the authority travels beyond the valid provisions it must be regarded as acting in excess of its jurisdiction. To give too wide a construction to the expresilion \"under the Act\" may lead to the serious consequence of attributing to the legislature, which owes its existence itself to the Coniltitution, the intention of affording protection to unconstitutional activities by limiting challenge to them only by\n\nresort to the special machinery provided by it in place of the normal remedies available under the Code of Civil Procedure, that is, to a machinery which cannot be as efficacious as the one provided by the i:eneral law. Such a construction might necessitate\n\nthe consideration of the very constitutionality of the provision which contains this expression. This aspect of the matter does not appear. to have been considered in Raleigh . Investment Co.'s case(').\n\nThis decision has been briefly referred to by this Court in Firm and Iliuri Subbayya Chetty & Sons v. The State of Andhra Pradesh(') and what this Court has observed is this:\n\n/'In determining the effect of s. 67, the Privy Council considered the ilcheme of the Act by particular reference to the machinery provided by the •ct which enables an assessee\n\nto raise in courts the question whether a particular provmon of the Income-tax Act bearing on the assessment made is or is not ultra vires. The presence of such machinery observed the Judgment, though by no means conclusive marches with a construction of the section which denies\n\na1t7rnative jurisdic!ion to enquire into the same subject-matter.\n\nIt 1s that the 1udgment shows that the Privy Council took view that even the constitutional validity of the taxing prov1s1on can be challenged by adopting the procedure prescribed by the Income-tax Act; and this assumption presumably proceeded on the b:isis that if an assessee wants to challenge the VtrC8 of the taxing provision on which an assessment is purport ed to re made against him, it would be open to him to raise\n\nthat point\" before the taxing authority and take it for a decision before the Court under s. 66(1) of the Act, It is not necessarv for us to consider whether this assumption is wcll founded Or\n\nnot. But •he presence of the alternative machinery by way of\n\n(') 7• I.A. IO. (') [IllU] l 8.C.R. '52 a> T64.\n\n520 BUl'REWl BEl'ORTS\n\n(1980] 3 S.C.B.\n\n.appeals which a particular statute provides to a party aggrievetl by the assessment or<, ler on the merits, is a relevant consideration and that consideration is satisfied by the Act with. :which we are concerned in the present appeal.\"\n\nWe have alre11dy adverted to the provisionil of ss. 83 and 85 of the Act which are the only provisions brought to our notjce as providing a machinery under the Act for challenging an assessment and we have pointed out they do not cover a case like the present. Again the .Provision for an appeal before a Deputy Commissioner who is an authority who performs numerous functions under different' Jaws, functions which are executive, as well as administrativp arid judicial, cannot be regarded as on par with one which provides for an appeal before an Appellate Assistant Commissioner under the Income-tax Act, an authority whose duties are confined to matters a.rising under that Act. Further, the latter Act contains a safeguard in the shape of an appeal to the Income-tax Appellate Tribunal w.hich deals exclusively with !llatters arising under that Act and is an independent tribunal. Iii the circumstances it must be held that even in the class of cas.es to which. the provisions of ss. 83 and 85 of the Municipalities Act apply they cannot be. said to provide a sufficiently effective remedy to an assessee to challenge the assessment made against l]im or to a person who is aggrieved by the act!on of the Committee levying or refusing to refund a tax. lt is true that Sub-sec (2) of s. 83 provides for a reference to the High Couri but even provision cannot be said to be a sufficient- J y efficacious remedy for challenging the assessment made on an assessee. For w)lether to make a refefence or not is at the discretion of the appellate or revisional authority and the Act does not confer upon the person aggrieved a right to move the Court, as does the Income-tax Act, to require a refei:ence to be made in an appropriate case. We may again rl'!nt out that there is a .complete absence of a provision corresponding to s. 67 of'the Indian Income Tax Act barring the institution of a suit in so far a.S refusal of r\\:fund o[ a tax is concerned.\n\nIn Secretary of State v. Mask & Co.(') the Privy Council has observed that it is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily iriferred, but that such exclusion must either be explicitly expressed 'or clearly implied. As earlier pointed out; this decision has been approyed by this Court in the\n\ncase of Firm and l/luri Subbayya C'1etty& Sons('). Further, one of the corollari!'S flowing from the\\ principle that the Constitution is the fundamental la.w of. the land is that. the normal remedy of a suit will be available for obtaining redress against the violation .of a constitutional provision. The Co11rt , must, therefore, lean in\n\nfavour of construing a law in sucli a way as not to take away this\n\nright an5f render illusory the protection' afforded by the Constitution. So,. whatever be t11e position withrespect to s. 67 of the Indian\n\n(') [11140) 87 I.A. 222, 2!l6, <'> [I9taJ i s.c.lli. 75z •t 764.\n\n' ,\n\nLU.A BBANDAR V. MUNC. COMMITTEE (.lfudho/ka.r, J.) b2J\n\nIncome-tax Act, so far as s. 83(3) of the Act is concerned, we find it reasonably possible to construe it as not depriving a person of his right to obtain redress from a civil court in respect of an amount recovered from him as a tax in violation of Art. 276 of the Constitution.\n\nWe have already pointed out that no machinery is provided by the Act for obtaining a refund of tax assessed and recovered in excess of the Constitutional limit and that the machinery actually provided by the Act is not adequate for enabling an assessee to\n\nchallenge effectively the constitutionality or legality o'. assessment or levy of a tax by a municipality or to recover from it what was realised under an invalid Jaw. It is, therefore,' not possible to infer that the jurisdiction of the civil court is barred. The decision in the\n\nRaleigh Investment Co.'s case(') does not, therefore, help the respondent. Moreover, we must bear in mind the provisions of Art. 265 of the Constitution which preclude the levy or collection of a tax except by authority of Jaw, which means only a valid Jaw. There was no corresponding provision in .the various Acts for the governance of India which preceded the Constitution. Under Art. 226 the Constitution has provided a remedy to a citizen to obtain redress in respect of a tax levied or collected under an invalid law.\n\nremedy will not be affected by any provisinn like s. 67 of the Indian Income-tax Act or like s. 84(3) of the Municipalities Act.\n\nWe must not lose sight of the fact that what the appellant has claimed in the suit is the repayment by the Municipal Committee of an amount recovered by it in excess of that which under the Constitution it was competent to recover from the appellant. The appellant bas not sought to modify or set aside any order made by an authority acting or purporting to act under the Act. No doubt, the relief of repayment is claimed on the that the enhancement of the rate is unconstitutional. No d'oubt also that the appellant had sought a further relief of injunction. As regards the first, the position is that the High Court of Nagpur has held. in the petition under Art. 226 preferred by the appellant, the enhancement to be unlawful. This decision was rendered by the Court during the pendency of the suit and was binding on the civil court in which the\n\nsuit was pending and has been in fact followed by it. As regards the relief of injunction, that relief became unnecessary because of the order made by the High Court in the Writ petition. It is apparently for this reason that the civil court did not award that relief to the appellant. In view of the High Court's decision it was not at all necessary for the trial court to consider in the suit before it the question of the validity of the assessment by or collection of the tax but only to. ascertain the amount which was payable to the appellant and whether the suit was barred under s. 48 or s. 85(2) as contended by the respondent. In these circumstances, we are of opinion that the appellant's suit cannot be said to be barred even if we interpret s. 84(3) of the Municipalities Act in the same way as the Privy Council interpreted s. 67 of the Indian Income-tax Act.\n\nrl 1' r..t.\n\n622 (1966] s 8,0.L\n\nWe may further observe that where there 19 an expre,5 prohibi tion in a statute against a local authority from imposing a tax, as for instance the recovery in the Statute construed by this Court in\n\nthe Poona City Municipal Corporation easel') or where prohibition can be implied-,-whcther it be with regard to an item of taxation or with regard to the rate of ta or the quantum of tax payable by an individual assessee-the action of a local authority or of any of its instrumentalities in transgressing that prohibition must be regarded as being in excess of its jurisdiction. Here there i1 a prohi bition in s. 142-A of the Goverruncnt of India Act and now in Art. 276 of the Constitution, which preclude a State Legislature from making a law enabling a local authority to impose a tax on \"profes sions, trades, callings and employments\" in excess of Rs. 250 per annum. These provisions have to be read in the Act or to be deemed by implication to be there as the Constitution is the paramount law to which all other laws are subject as was the Government of India Act, 1935 before January 26. 1950. It therefore, the date specified in s. 142-A of the Government of India Act or after the commencement of the Constitution a local authority or any of its instrumentalities imposed or imposes a tax which is in excess of the permissible amount, it would be exceeding its jurisdiction and a provision like s. 84(3) of the Act will not bar the jurisdiction of a civil court to entertain a suit instituted by a per6on from whom it is collected for the repa vment of the money recovered from him in excess of the permissible amount. There is a real distinction between those sases where .a suit was held to be incompetent and the kind of cases which we have before us. Thus where the question merely is, whether the assessment had been made according to law, the Assessing Officer of the Municipality having jurisdiction on the subject matter and over the asscssce the provisions of s. 84(3) may be a bar to a suit. Where, however, the question raised Is as to the jurisdiction of the Assessing Officer to proceed against the and levy on or collect from him an amount in excess of thai permit ted by the Constitution, the matter would be entirely out of the bar of that provision. Herc since the Assessing Oftlcer had no authority to levy a tax beyond whats. 142-A of the Govcrrunent of India Act.\n\n1935 permitted or Art. 276 permit' his proceedings are void In so far as they purport to levy a tax in excess of the pcnnissible amount and authorise its collection and the assessment order is no answer to the suit for the recovery of the execs.' amount. To this extent, even the order of assessmeni cannof obtain the protection of s. 84(3) of the Act and, therefore. the appellant's suit is maintainable.\n\nFor all these reasons we hold that the High Court was in error in dismissing the appellant's suit. We hold the same in the connect cd appeal and accordingly allow both the appeal.! with cost! throughout\n\n(') [19\"] I 8.C.!I. !YI.\n\nKA.LA BllANDAR v. MUNC. COMMITTEE (Dayal, J.) 023\n\nA Raghu\"8r Dayal J. We have given careful thought to the questions of law arising in this appeal, but regret we have not been able to agree with the view expressed by brother Mudholkar J .. in the majority judgment. . .\n\nWe need not recapitulate the facts which have been fully set out in the judgment of Mudholkar J. The questions of law which B arise for determination are: {i) whether the respondent's collecting the amount in excess of the amount which it could have collected\n\non account of the tax on trade, in view of the provisions of Art. 276 of the Constitution, was 'an act done or purported to be done under the Act' within the meaning of s. 48(1) of the Central Provinces & C Berar Municipalities Act, 1922 (Act II of 1922), hereinafter called\n\nthe Act; and (ii) whether the suit is barred by s. 84(3) of that Act.\n\nThe question in short boils dowp. to this : whether the expression 'anything done or purporting to be done' under the Act will cover only those acts which would be in strict conformity with the provisions of the Act or will also cover such acts which the Munici- D pal Committee is competent to do under the Act, but in doing which the Committee has, in some manner, acted beyond the provisions of the Act or beyond any other legal provision.\n\nSection 48 of the Act refers to suits against the Committee or any of the other specified persons acting under the directions of the Committee, for anything done or purported to be done under the B Act. If a suit is for anything done or purported to be done under the Act, the necessary conditions laid down in the section are to be satisfied before the institution of the suit. One condition is that the suit is to be instituted after the expiration of two months after the service of a notice, in writing, to the persons mentioned in sub-s. (!). Another is that that suit be instituted within six months from P the date of accrual of the alleged cause of action. If a suit is not instituted after giving notice or within this period, it has to be dismissed.\n\nThe question then is : what is the present suit for? And it is only on the determination of the nature of the act to which the\n\n6 present suit relates that it caln be said whether the suit is covered\n\nby s. 48 tJr not I.e., whether the act can be said to be done or purported to be done under the Act.\n\nThe plaintiff claims a decree for the amount alleged to haye been illegally collected from him as tax and for a permanent Injunction. The illegality of the collection is said to be on account of there ir being an upper limit for a person's liability to tax on trade and\n\ncalling, in view of s. 142A of the Government of India Act, 1935\n\n(shortly referred to as the 1935 Act) and Art. 276 of the Constitutio.n. The limit under the Constitution is Rs. 250. It was Rs. 50 under the 1935 Act. What was collected from the appellant was the tax assessed on him. According to the appellant, the amount assessed exceeded the legal limit and therefore what had been collected In exces11 of that limit was collected illegally.\n\n..... ; . . ... .\n\n\n(1965] 8 S, CJ.R,\n\nWe may now consider the procedure laid down for the collection of tax under the Act before we determine the nature of the alleged excessive collection of tax from the appellant. Section 66 empowers the Committee to impose the taxes enumerated in sub-s.\n\n(!), clause (b) of subs. (I) mentions a tax on persons exercising any profession or m:t. or carrying on any. trade or calling, within the limits of the municipality. Sub-section (2) empowers the State Government, by rules made under the Act, to regulate the imposition of taxes mentioned in the section and to impose maximum amounts of rates for any tax. The rate of tax fixed by Government\n\nNotification dated December 22, 1936 was enhanced by another Notification dated April 10, 1941. The former rate of one anna: was enhanced to four annas. These notifications did not lay down any upper limit for the amount of tax payable by one person td\n\nthe Municipality. The legality of the imposition is not questioned.\n\nThe legality of the enhancement was questioned by the appellant\n\nthrough Miscellaneous Petition No. 389 of 1954 decided by the High Court on Apr.ii 12, 1955. The appellant prayed, by that petition, for the issue of a writ prohibiting the Committee from collecting taxes under the notification of 1941. The High Court did not hold the notification to be bad in law. What it held was that the tax was invalid to the extent it offended against s. 142A of the 1935 Act and that it was also invalid to the extent it offended against art. 276 of the Constitution. The writ issued by the High Court was a\n\nwrit of mandamus prohibiting the Municipality from resorting to the 1941 Notificaticm for the purpose of collecting tax in excess of Rs. 250 per annum. The Municipality therefore was empowered to impose tax in 'accordance with the notification of 1941 and, in view of s. 142A of the 1935 Act and art. 276 of the Constitution, the total tax claimable on account of this tax from the appellant could not exceed Rs. 50 or Rs. 250 respectively during the period when s. l42A was in force and later when art. 276 came into force.\n\nThe next step, after the Imposition of a valid tax, according to the Act, relates to the assessment of tax on the person's liability to pay it. Section 71 empowers the State Government to make rules under the Act regulating assessment of tax and for preventing the evasion of assessment and s. 76 empowers the State Government to make rules regulating the collection of taxes. The rules for assessment and collection of taxes framed in 1936 were notified on December 22, 1936.\n\nRule I required a person carrying on the trade of ginning or pressing cotton into bales by means of steam or mechanical process to furnish to the Committee, annually, a return in the prescribed form which required the furnishing of the number of bojhas ginned and the number of bales pressed, with the total weight in maunds during the financial year in each case. This information was necessary as the rate of tax related to a bojha of 392 lbs. ginned cotton and a bale of 392 lbs. pressed cotton.\n\no'.\n\n!ULA BJ!ANDAR v. MUNC. COMMITTEE (Dayal, J.) 525\n\nRule 4 provided that the tax would be assessed by a subcommittee on the basis of the information received under certain rules including r. 1. Rule 5 required the communication of the amount of assessment to the assessee. Rule 6 provided that objections to the assessment would be received and considered by the sub-committee if presented within a month from the date of communication of the amount of assessment to the assessee and that the decision of the sub-committee would be final subject to the confirmation by the general committee. Rule 7 provided that the tax would be payable in one instalment on August I. each year\n\nFresh rules were notified in 1941 and these were practically identical with the 1936 rules.\n\nIt is not alleged that the tax as, essed on the appellant during the periods in suit had not been assessed by following the procedure laid clown in the rules.\n\nIt follows from the statutory rules that once the tax is as>essed according to the rules, the assessee becomes statutc'fily. to pay the assessed tax.\n\nSection 77 provides how any arrears of tax by the Committee under the Act can be recovered. They can be recovered on an applbtion to a Magistrate, by di\"lress and sale of movable propertv of the defaulter within the limits of his jurisdiction. Sections 77 A and 80 prnvide other procedure for arrears of certain taxes to be realised.\n\nSection R3 provides for an nppeal. a.eainst the assessment or levy of or refusal to refund any tax under the Act. to the Deputy Commissioner or some other officer empowered by the State Government in that behalf. Sub-s. (]Al allows a aggrieved by the decision of the appellate authority to apply to the State Government for revision of the decision on that the decision is contrary to law or is repugnant to any principle of assessment of tax or that the appellate authority has exercised jurisdbion not vested in it bv law or has failed to exercise a jurisdiction vested in it by bw. Sub-s. Cl provides for a reference to the High Court by the annelhte authoritv or tre revisional authority on its own motion or on the anplic, tion of any person interested, for the opinion of the Hieh G'ourt on any question as to the liability or the orinciple of assessment of tax if such a question arises on the hcarirg of the appeaJ nr revision.\n\nSub-s. (3) of s. 84 provides:\n\n\"No objection shall be taken to any valuation, assessment, or levy. nor shall the liability of any person to be assesi; ed or\n\ntaxed be questioned. in any other manner or by any other authority than is provided in this Act.\" L/P( li').ISC f - 7\n\n1126 SUPREME COl:RT REPORTS [1965] 3 8.0eRI\n\nSe<:tion 85 reads:\n\n\"(I) The State Government may make rules under this Act regulating the refund of taxes, and such rules may impose limitations on such refunds.\n\n(2) No refund of any tax shall be claimable by any person otherwise than in acordancc with the provisions of this Act and\n\nthe rules made thereunder.\"\n\nIt follows from the above provisions that an assessee has to pay the tax assessed and that if aggrieved with the assessment of tax he has to appeal against the assessment order. He can raise questions of law and fact in the a ppcal.\n\nThe appellant, in the present case, could have appealed against the assessment on the ground that the amount assessed exceeded the limits laid down fo; the tax under s. I 42A of the 1935 Act if that applied at the time of assessment or under art. 27.6 of thC' Constitution if the latter applied at the relevant time. His claim for\n\nthe refund of any amount, if paid, would arise only after the amount assessed and paid is modified by the appellate er revisional authority. If that amount is not so modified, no question for the refund or repayment of any amount paid as tax under the Act arises. The statute provided for the assessment of tax and for its collectior. in case the assessee did not himself pay the assessed amount to the rules. The present suit for the of the amount alleged to have been realised illegallv is in essence a suit for firstly modifying the amount assessed and then to decree\n\nthe payment of the amount held to have been paid in excess of the tax as modified by the Court. It follows therefore. to our mind. that the suit relates to the act of the Committee in assessing the appellant wrongly by ignoring the constitutional provision that the\n\namount payable bv a single person to the municipality for such tax\n\nwas not to exceed a certain limit and that it is not merely with respect to the act of collecting the excess amount. In fact. the assessment of the entire tax was one act and so was the collection of\n\nthe amount assessed. The act of assessing the tax or the consequential act of collecting the amount cannot be broken up into two acts\n\n(j) of asscssin'.! the tax upto the legal limit and (ii) of assessing the tax with respect to the amount in excess of the legal limit. Neither can the act of collection be hroken up into two acts (j) of collecting\n\nthe amount which can be legally and <ii) of collecting the in excess of the legally realisable amount of tax. The act of assessment 0r of collection therefore was an act done by the Committee unJcr the provisions of the Act. though it may be, as appears to be the case. that it acted wrongly in assessing the tax at an excessive figure and consquently in collecting an amount in\n\nwhich could fi; l\\e been lega!Jv collected. The suit is therefore fully :ovcred by the provisions (} l of s. 48 Qf the Act.\n\nKALA BHANDAR v. MUNC. CJMMITTEE (Dayal, J.) 527\n\nSub-s. (2) of s. 48, as already stated, provides that every such su.it, i.e. a suit falling within sub-s. (I) of that section, shall be dismissed unless it is instituted within six months from the date of the\n\naccrual of the alleged cause of action. The suit was instituted in the instant case on December 6, 1952, more than 8 months after\n\nda.te of recovery of most of the amounts alleged to have been illegally recovered from the alJpellant and, clearly, the suit for the recovery of such amounts had to be dismissed.\n\nThe taxes for the years 1951-52 were recovered in small amounts on January 17, 1952, March 13, 1952, March 31, 1952 and August 27, 1952. The suit for the amount recovered on January 17 was also instituted after the period of limitation.\n\nNo notice with respect to the alleged illegal collection of taxes in March and August 1952 had been given to the Municipal Committee as notice was given on January 10, 1952, prior to these collections and could not have possibly referred to them. The suit for these amounts also has to be dismissed as the condition precedent for the institution of the s9it under sub-s. (I) of s. 48 has not been satisfied.\n\nThere is another reason which justifies the dismissal of the appellant's suit, though the view of the High Court on that point is in favour of the appellant. In view of s. 84(3) the assessment of the tax or the liability of the person assessed or taxed cannot be objected to in any manner or before any authority other than what is\n\nprovided in the Act. Section 83 provides the procedure by which the assessment of tax can be questioned both on law and facts. The correctness of the assessment .cannot be questioned by any other\n\nmanner and questioning by instituting the suit in a Civil Court would be one such other manner. We have already indicated that in essence the oresent suit is a suit for the modification of the taxes assessed and for consequential order decreeing the repayment of\n\nthe amount held to have been collected in excess of the amount so modified. In view of sub-s. (3) of s. 84, exclusive jurisdiction to determine the correctness of the amount assessed is given to the authorities mentioned in s. 83. The result is that no other authority can enter into the question of the correctness of the assessment on\n\ngrounds of law or fact. The present suit is barred from the cognizance of the Civil Court.\n\nThe views we have expressed find support from what has been decided by the Privy Council and this Court. We would first refer\n\nto those cases before dealing with the cases relied on for the appellant in support of the contention that the Committee had no jurisdiction to assess the tax beyond the limit allowed by s. 142A or art. 276 and that therefore the act of the Committee was an act which could not be said to have been done or purported to have been done\n\nunder the Act and that it was not necessary for the appellant to take recourse to the procedure laid down in ss. 48 and 83 of the Act.\n\n1128.\n\n\n(1965] 8 B.O.R\n\nIn Raleigh' lnyestment Co. Ltd. v. Governor-General in Council(') the Privy ColineiLh.ad to construes, 67 ofthe, Inpome-tax\n\nAct which provided: 'no suit shall be brought in any civil court to set aside or modify any assessment made under this Act ..... .'. The suit giving rise to the 'appeal• before the Privy Council .was for a declaration that certain provision of the Act 'Yas ultra,. vires the legislative powers of the Federal Legislature, that therefore the appellant before the Privy Council was not liable°to be assesseCl or cl; iargep to tax in respect of certain dividends and the assessment was illegal and wrongful, for an injunction restraining the department from making assessment in future years in respect of such dividends and for the repayment of the amount said to have been illegally realised on account of the illegal assessment. The Privy Council said at p:. 62:\n\n\"In form the relief claimed does not profess to modify or set aside the assessment. In substance it does, for repayment of part of the sum due by virtue of the notice of demand could not be ordered so long as the assess!l'ent stood.\"\n\nThe same ca.n be said respect to the claim for repayment of the alleged illegal collection of the excess amount from the appellant.\n\nThe Privy Council further said,:\n\n''.An assessment made under the machinery provided by the Act, if ba3ed on '.I provision subsequently held. to be ultra vires, is not a 'nullity like an order of a court lacking jurisdiction. Reliance on such a provision is not an excess of jurisdiction but a mistake of law made i11.!he course cif its exercise.\"\n\nIn view of what the Privy Council has said, the Committee's overlooking the constitutional provisions in the exercise of its jurisdiction to assess the tax will not make its assessment of the tax an assessment without jurisdiction but would only show that the Committee made a mistake of hw in course of the c.xercise of its jurisdiction.\n\nThe Pri\\ly Council took into consideration the machinery provided in the Income-tax Act fer tl:e rJising objections to the assessment inade against him and held that effective and proper machinery was prmddetl by th.e Act itself for the review OI) grounds 6f law. This was however not the reason for their construing s. 67 'n the way they did. In fact, they considered. the constr.uction of\n\n67 dear and said:\n\n\"Under the Act the income-tax officer is charged with the duty of asse3sing the total inccme of , the The obvious meaning. and in their-Lordships' opinion, the'correct.meanfog, of the phrase 'assessment made under this Act' is an assessment\n\n• C') T.R. 74 LA. 50.\n\nI ' i i\n\ni 1\n\nltALA BHANDAB V. MUNC. CO.wa'ITEE (Dayal, J.) 029\n\nA finding its origin in an activity of the assessing officer acting as such. The circumstance that the assessing officer has taken into account an ultra vires provision of the Act is in this view immaterial in determining whether the assessment is 'made under this Act'. The phrase describes the provenance of the assessment: it does not relate to its accuracy in point of law. The B use of the machinery provided by the Act, not the result of that use, is the test.\" These observations fully apply to the expression 'the assessment of any tax under the Act' in sub-s. (!) of s. 83. lt follows that when the Committee made the assessment of the tax on the appellant the assessment was founded on the activity of the Committee acting as C the assessing authority and the fact that it overlooked the constitutional requirement is immaterial in determining whether the assessment is made under the Act. The expression 'made under the Act' has no relation to the accuracy of the assessment in point of law.\n\nThe expression 'assessment of any tax under the Act' in s. 83 is equivalent in its content to the expression 'assessment made under D the Act'.\n\nLastly, the final observations of the Privy Council in this case\n\nthat when an exclusive machinery for the determination of the tax is provided by the Act and the tax is 'assessed by thali machinery, there arises a duty to pay the amount of tax demanded E on the basis of that assessment and that the jurisdiction to question\n\nthe assessment otherwise than bf the use of the machinery expressly provided by the Act would be inconsistent with the statutory obligation to pay arising by virtue of the assessment. The very fact that the appellant let the assessment become final without taking recourse to the orocedure of appeal and revision laid down in s. 83 F of the Act and thus became liable under the statute to pay the\n\namount assessed, makes his questioning the correctness of the amount through the Court inconsistent with that obiigauon. H appc lfs that the Privy Council considered a special provision barring the taking of objection to assessment of tax by any authority to be unnecessary. It said at p. 65: G \"The only doubt, indeed, in their Lordships' mind, is whether an express provision was necessary in order to exclude jurisdiction. in a civil court to set aside or modify an assessment.\" This would meet the contention for the appellant that sub-s. (3) of II s. 84 does not specifically refer to the Civil Court and therefore does not specifically bar jurisdiction of the Civil Court from. taking cognizance of a suft relating to the assessment of tax.\n\nIt may also be mentioned that s. 84(3) of the Act, by its terms, refers to an objection to assessment and not to 'assessment under the Act or assessment made under the Act'. This makes the provisions of s. 84(3) much wider in scope than those of s. 67 of the\n\nIndian Income-tax Act were.\n\nCi30 SUPREME. COUH'l' n1o:1•onr:.; [1965] 3 s.c.a.\n\nThe other case we would refer to is firm & 11/uri Subbayya Chetty & Sons v. Tire Srate of Andhru Pradesh\\'!. The appellant before this Court, in that case, sued the State of Andhra Pradesh for a decree for a certain amount on the ground that that amount\n\nhad been illegally recovered from it under the Madras General Sales Tax Act, 1939. Section l8A of that Act provides that no suit or\n\nother proceeding shall, except as expressly provided in the Act, be instituted in any Court Lo set aside or modily any assessment made under the Act. This provision is practically identical in terms with that of s. 67 of the Income-tax Act which had been considered by the Privy Council in Raleigh's Ca.1e\\-1. The contention raised before the Court was that if an order of assessment had been made illegally by the proper authority purporting to exercise its powers under the Act, such an assessment could not be said to be an assessment made under the Act. It was also contended that the use of the words 'anv assessment made under this Act' did not cover cases of assessmen\"t which purported to have been made under the Act. This Court said at p. 759:\n\n\"The expression 'any assessment made under this Act' is, in our opinion, wide enough to cover all assessments made by the appropriate authorities under this Act whether the said assessments are correct or not. It is the activity of the assessing officer acting as such officer which is intended to be protected and as soon as itf-is shown that exercising his jurisdiction and authority under this Act, an assessing officer has made an order of assessment that clearly falls within the scope of s. ISA.\"\n\nThe view expressed by this Court is practically the same as had\n\nbeen expressed in Raleigh's Case('). Jn fact, the only difference between the two cases appears to that in the Privy Council case the illegality of the assessment was said to lie in basing the assess ment on a provision which was said to be ultra vires the legislature while the illegality of the assessment made in the case before this Court lay in the alleged mistake of the assessing officer in construing certain transactions to be transactions of purchases though they\n\nwere really transactions of sale, the tax being leviable on purchases\n\nand not on sales. This Court referred to Raleigh's Case(') at p. 764 and did not express an opinion on the view of the Privy Council\n\nthat even the constitutional validity of the taxing provision could be challenged by adopting the procedure prescribed by the Incometax Act, a question which does not arise for consideration in the present case.\n\nWe are therefore of opinion that the construction put on the expression 'assessment mJde under the Act' in these two cases justifies the conclusion that the assessment of tax made on the appellant in this case is covered by sul>-s .. rn of s. 83 of the Act and\n\nI S.C.R. 752.\n\n(') 74 I.A. 00.\n\nKALA BHANDAR v. MUNG. COMMITTEE (Dayal, J.) 531\n\namounts to 'an act dom; under the Act' for the purposes of sub-s.\n\n(1) of s. 48 of the Act. It is therefore unnecessary to determine the scope of the expression 'an act purported to be done under the Act' in sub-s. (!) of s. 48. ·\n\nWe may now briefly deal with the cases relied on for the appellant.\n\nBefore, however, doing so, we may first deal with the case of Poona City Municipal Corporation v. Dattatraya Nagesh Deodhar(') decided by this Court. In this case the Poona Municipality had imposed a tax on the amount of octroi duty which had been levied on the goods imported within the Municipal limits but had been subsequently exported out of such limits within the specified periods. The Poona Municipality used to deduct 10 per cent of the amount to be refunded. This deduction was held to amount to a tax on the octroi refund. Such a deduction was imposed as a tax under s. 59(b)(xi) of Act III of 1901. The tax continued after the 1901 Act was repealed by the Bombay Municipal Boroughs Act,\n\n1925. The Boroughs Act was, in its turn, repealed by the Bombay Provincial Municipal Corporation Act, 1949. That Act was applied to Poona on February 15, 1950 and thereafter the powers of taxation of the Municipality were governed by s. 127 of that Act which authorised the. Corporation to impose the various taxes mentioned in that section. A tax on octroi refund was not one of such taxes. It could not come under cl. (f) which described: 'any other tax which the State Legislature has power under the Constitution to impose in the States'. The State Legislature had no power under the Constitution to impose a tax on octroi refund.\n\nIt was therefore held by. this Court that the amount of tax on octroi refund could not be imposed by the Poona City Municipal Corporation. It was, after holding so, that reference was made to sub-s. (4) of s. 127 which provided that nothing in that section would authorize the imposition of any tax which the State Legislature had no power to impose in the State under the Constitution, and it was said:\n\n\"Apart from his absence of power to impose such a tax, which is clear from the earlier parts of s. 127, we have the categorical prohibition in sub-section 4 against the imposition of any such tax by the Corporation.\" This reference was to emphasize that the impugned tax could not possibly be imposed under the Act. Sub-section (4) appears to been enacted as a matter of caution. There could be no necessity for sub-section (4) as s. 127 itself had provided for the taxes which could be imposed. Any tax which was not in the .section could not possibly be imposed by the Corporation. The !eg1Slature\n\nmight have considered the. any the specified taxes not remaining in future w1thm the leg1slatlve bst of the State and\n\n(') [1964] s s.c.R. 11s.\n\n.. ''\n\n. 532 '\n\nCOURT REPORTS (1965] 3 s.c.R. ,.\n\n'-... therefore provided th:it in such a conti!!gency a tax though spedfied · A\n\n in the section will not be imposed. The provision of sub-s. (4) did not in any way affect the decision of this Court in holding that the Poona Municipal Corporation could not impose a tax on octroi refund. The other contention for the Poona Municipal Corporation was that the suit was instituted beyond the period of limitation prescribed under s. 487 o[ the 1949 Act. The suit would have been time-barred if the act of the Corporaticn imposing the tax on octroi refund could be hcid to be 'an act done or purported to be done in pursuance or in execution odntended execution' of the 1949 Act.\n\nThis Court held that the tax was not levied in pursuance or in\n\nexecution. of the Act\" and therefore the benefit of s. 487 could not be availa!Jle to the Corporation. The tiscd ins. 487 is different from the.one used in s. 48 of the Act. Ap; irt from this consideration, the act of imposing the tax cnuld not be said to have originated fromany provision of\n\nthe 1949 Act and therefore could not possibly be held to be an act .D done under the 1949 Act. We do not think this case can be taken to support the appellant's contention that the assessment of the tax on it and the consequential collection of lhe amount in excess of the limit laid Clown by art. '276 of Constitution was not an act done under the Act.\n\nE The has relied oa the cases decided by the Nagpur Hieh Ct, urt and a brief reference may now be made to them. We m<:y refer to the case reported as The Amraoti TOW/I Municipal Committee v. Shaikh Bhika11(') first.· The plaintiffs had\n\nsued to recover the t\"JX which had been collected from' them in excess of !he la; vfulralc. TI1e sl!it was instituted after the plaintiffs F had obtained a dec!arrttfon that the enhancement of the tax over that rate was illegal. :rhe Municipal Committee had power to impose and enhance the 'tax. It however had enhanced the. tax without the entiie bid down for such enhancement and had omitted 'ta consider the objectioQS filed against the proposed enhancement. l he question before the High Court was G whether the coHccticm of the tax at the enhanced rate was an act which fcli within the ambit of the expression 'anything done or purportd _t:) be done under the Act' which Act. it may be-mentioned, was the C.P. & Ikr::r Municipalities Act, 1929, the very Act with which we are concerned in the pre>ent appeal. Niyogi J. expressed at :p. 219 his agreement with the principle that if. the\n\nH - Municipal Committee e; cm:i.sed a power which it did not possess, it should not regarded :is ae:tin9 in pursuance of the statute governing its afl;; irs and its acts should not be re:rarded as being done under the statute. and further stated that that principle however did not help the Municipal . Conimittec. the appellant before him.\n\n(1) 1.L.R. :!16.\n\n!ULA BHANllAR v .. 'llJXO. CO\\!MlTTEE (Dnyr.Z, J.)\n\nNiyogi J. then said, after noticing the failure of the Municipal Committee to consider the objections to the proposed taxes:\n\n\"Now there can be no question that themunicipal committee, in imposing and collecting tax at four annas per animal,\n\nwas acting ex<:ctly in accordance with secL10n 68. It must be observed that the1e is a tliiference between a case when a corporate body exercises a power which is wholly absent and a case where it has power but it exercises it illegally or with material irregularity. In the former case the municipal committee's act from beginning to end is illegal; whereas in the latter case the act is quite legal in the beginning but becomes illegal in the end.\".\n\nAgain he said:\n\n\"Jn enhancing the tax and collecting it the municipal com mittec was certainly exercisi11g although irregularly, the power conferred on it by section 68 and to that extent it appears to me that the contenticn that they were not acting under the statute is untenable.\"\n\nThe views expressed by Niyogi J., we may say with respect, find full support from l<aleii:h s Cwe( i and Subbayyu Clietty\"s Case('). ,4mraoti Municipal Co111111it1ce\"s Case() was in a way on all fours with the present case. In that case the Municipal Committee overlooked the pro>ision of Jaw ab0ut consiliering the objections to the proposed enhancc.11cnt in tax. In the present case the Committee overlooked the conslltCJtional rcquire, nent that the maximum limit of the tax payJble by a single individual is Rs. 250.\n\nThe next case is District Co1111cil, Bltandara v. KMwrilal('). In this case the question before Bo, e J. was whether a suit for the recovery of an amount recovered in excess of what cculd be legally taxed came within the mischief of s. 71 and s. 73(1) of the Central Provinces Local Self-Government Act, 1910 (C. P. l V of 1920). Bose J. said at p. 92:\n\n\"It will be observed that both section 79 and the rule are confined to orders and decisions 1111der tire Act. It is impossible to say that an order which contravenes the Jaw or is made in the face of an express statutory prohibition can be said to be under the Act. The words 'purporting to be given or 'made under the Act' am not present in this section and so\n\nthe .difficulty which regarding the other point is not present here.\" We do not see why an ordinary decision given under the Act be not considered to be an order made under the Act. Neither of the expressions refer to the order or decision being correCt or not.\n\n(') 74 I.A. 50. (') I.L.R. 1939 Nag. 216.\n\n(') [1964] I S.C.R. 752.\n\n(') !.L.R. [1949] Nag. 87.\n\nSUPRF..ME COURT REPORTS\n\n[1965] 3 B.C.I\\,\n\nSection 73 of the Central Provinces Local Self-Government A Act prescribed that no suit shall be instituted tic .......... for anything done or purporting to be do01e under that Act, unless the prescribed notice be first given. Bose J. presumably in view of what he had said earlier in connection with orders and decisions given under the Act. said:\n\n\"I am clear that what was done here was not done 'under B the Act'. so the only question is whether it 'purported to be done under the Act.\"\n\nIn these observations he seems to have equated the expression 'given under the Act' with 'done under the Act'. His view, as we have already pointed out with reference to something done under the Act, docs not find support from Raleigh's Clue(') and Subbayya c Che11y's Case('). Bcse J. then considered the content of the expression purported lo be done'. We need not discuss what he says on\n\nthis point as we have held that the assessment made on the appellant was an assessment made under the Act and that the act of. illegal collection with respect to the amount in excess was an act done under the Act.\n\nThe appellant mainly relied on the Nagpur reported as M1111icipa/ Commi/lee, Karanja v. New East India Press Co. Ltd., Bombay('). It was held in that case that a suit for refund of a tax. illegally imposed by the Municipal Committee was not barred by reason of ss. 48. 83 and 84 of the Central Provinces Municipalities Act as the Municipal Committee did not act or purport to act E under the Act in imposing the illegal tax. Bose, Acting C.J., delivering the judgment, relied on his earlier decision in District Council, Bhandara Case(') and held that the claim for. the rccoYery of the tax illegally realised in excess of the permissible limit were not barred by reason of s;. 83 and 84. He then referred to s. 48 and. after stating that the act of the Municipality when prohibited hy\n\n'I' law was wholly beyond its jurisdiction and therefore s. 48 did not apply, said:\n\n\"The distinction between a case where section 48 applies and a case where it does not is clearly shown in Tire Amraoti Town Municipal Commillee v. Shaikh Bhikan(').\"\n\nWe have referred to this case and expressed full agreement with) G the views expressed by Ni yogi J. there. It appears to us that the full significance of that judgment has been overlooked in Municipal Committee, Kara11ja Case(').\n\nWe hold that the appellant's suit for the recovery of the tax. realised in excess of Rs. 250 a year has been rightly dismissed as\n\n(') 74 I.A. 50. (') I.L.11. [1114S] Nag. 971.\n\n(') [1964] I S.C.R. 752.\n\n(') I.L.R. [1949] llag. 87.\n\nKALA BHANDAR v. MUNO. COMMITTEE (Dayal, j.)\n\nthe correctness of the assessment of the tax could not be challenged A by a suit in a Civil Court in view of s. 84(3) and as the provisions of s. 48 requiring the giving of notice to the Municipality and the institution of the suit within a certain period had not been complied with. We would therefore dismiss the appeal with costs.\n\nORDER In view of the majority judgment, the appeal is allowed with B costs throughout.", "total_entities": 337, "entities": [{"text": "BHARAT KALA BHANDAR LTD", "label": "PETITIONER", "start_char": 5, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "BHARAT KALA BHANDAR LTD", "offset_not_found": false}}, {"text": "MUNICIPAL COMMITTEE, DHAMANGAON", "label": "RESPONDENT", "start_char": 31, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "MUNICIPAL COMMITTEE, DHAMANGAON", "offset_not_found": false}}, {"text": "March 26, 1965", "label": "DATE", "start_char": 64, "end_char": 78, "source": "ner", "metadata": {"in_sentence": "MUNICIPAL COMMITTEE, DHAMANGAON\n\nMarch 26, 1965\n\nSlJBBA RAO RAGHUBAR DAYAL, J. R. MuoHOLKAR,\n\nBACHAWAT AND V. 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G. PatwardJzan", "label": "JUDGE", "start_char": 9705, "end_char": 9722, "source": "ner", "metadata": {"in_sentence": "S. G. PatwardJzan, S. Murthv an-J B. P. Maheshwari, for ihe appellant (in CA."}}, {"text": "S. Murthv", "label": "JUDGE", "start_char": 9724, "end_char": 9733, "source": "ner", "metadata": {"in_sentence": "S. G. PatwardJzan, S. Murthv an-J B. P. Maheshwari, for ihe appellant (in CA."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 9739, "end_char": 9755, "source": "ner", "metadata": {"in_sentence": "S. G. PatwardJzan, S. Murthv an-J B. P. Maheshwari, for ihe appellant (in CA."}}, {"text": "S. N. Kherdekar", "label": "LAWYER", "start_char": 9799, "end_char": 9814, "source": "ner", "metadata": {"in_sentence": "S. N. Kherdekar and A.G. R.atnaparkhi, for the appellant (in CA."}}, {"text": "A.G. R.atnaparkhi", "label": "LAWYER", "start_char": 9819, "end_char": 9836, "source": "ner", "metadata": {"in_sentence": "S. N. Kherdekar and A.G. 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No."}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 10121, "end_char": 10130, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\n(1965} 3 S.C.R.\n\nThe Judgment of Subba Rao, Mudholkar and Ramaswami, JJ.", "canonical_name": "SlJBBA RAO"}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 10132, "end_char": 10141, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\n(1965} 3 S.C.R.\n\nThe Judgment of Subba Rao, Mudholkar and Ramaswami, JJ.", "canonical_name": "J.R. MUDHOLKAR"}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 10146, "end_char": 10155, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\n(1965} 3 S.C.R.\n\nThe Judgment of Subba Rao, Mudholkar and Ramaswami, JJ.", "canonical_name": "V. RAMASWAMI"}}, {"text": "Dayal", "label": "JUDGE", "start_char": 10268, "end_char": 10273, "source": "ner", "metadata": {"in_sentence": "was delivered by Dayal, J.\n\nMudholkar, J.\n\nThis judgment will also govern Civ; I Appeal N,1."}}, {"text": "Calcutta", "label": "GPE", "start_char": 10671, "end_char": 10679, "source": "ner", "metadata": {"in_sentence": "The appellant (hereinafter referred to as the Company) is a private limited comp2ny having its registered office at Calcutta and a branch office at Dhamangaon which was formerly in the Province of Central Provinces & Berar but is now in the State of Maharashtra."}}, {"text": "Dhamangaon", "label": "GPE", "start_char": 10703, "end_char": 10713, "source": "ner", "metadata": {"in_sentence": "The appellant (hereinafter referred to as the Company) is a private limited comp2ny having its registered office at Calcutta and a branch office at Dhamangaon which was formerly in the Province of Central Provinces & Berar but is now in the State of Maharashtra."}}, {"text": "s. 66(1)(b)", "label": "PROVISION", "start_char": 10925, "end_char": 10936, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Provinces Municipalities Act, 1922", "label": "STATUTE", "start_char": 10944, "end_char": 10986, "source": "regex", "metadata": {}}, {"text": "Dec. 22, 1936", "label": "DATE", "start_char": 11151, "end_char": 11164, "source": "ner", "metadata": {"in_sentence": "The Notified Area Committee of that place imposed, under s. 66(1)(b) of the Central Provinces Municipalities Act, 1922 (hereinafter referred to as the Act) as applied to Berar, a tax at the rate of one anna\n\nper bajha of ginned cotton and one anna per bale of pressed cotton as from Dec. 22, 1936 en which date a notification sanctioning the Imposition under s. 241 (!)"}}, {"text": "s. 241", "label": "PROVISION", "start_char": 11227, "end_char": 11233, "source": "regex", "metadata": {"linked_statute_text": "the Central Provinces Municipalities Act, 1922", "statute": "the Central Provinces Municipalities Act, 1922"}}, {"text": "sec. 241", "label": "PROVISION", "start_char": 11477, "end_char": 11485, "source": "regex", "metadata": {"linked_statute_text": "the Central Provinces Municipalities Act, 1922", "statute": "the Central Provinces Municipalities Act, 1922"}}, {"text": "Berar", "label": "OTHER_PERSON", "start_char": 11571, "end_char": 11576, "source": "ner", "metadata": {"in_sentence": "1922 (C.P. Act II of 1922) asapplied to Berar, the Local Government is pleased to confirm the following rule made by the Notified Area Committee, Dhamangaon, in the Amravati district, under clause (b) of sub-s. (!)"}}, {"text": "Amravati", "label": "GPE", "start_char": 11696, "end_char": 11704, "source": "ner", "metadata": {"in_sentence": "1922 (C.P. Act II of 1922) asapplied to Berar, the Local Government is pleased to confirm the following rule made by the Notified Area Committee, Dhamangaon, in the Amravati district, under clause (b) of sub-s. (!)"}}, {"text": "sec. 66", "label": "PROVISION", "start_char": 11749, "end_char": 11756, "source": "regex", "metadata": {"linked_statute_text": "the Central Provinces Municipalities Act, 1922", "statute": "the Central Provinces Municipalities Act, 1922"}}, {"text": "R. N. Bannerjee", "label": "LAWYER", "start_char": 12374, "end_char": 12389, "source": "ner", "metadata": {"in_sentence": "By order of the Government, (Ministry of Local Self-Government),\n\nSd / - R. N. Bannerjee,\n\nSi:cretary to Government,\n\nCentral Provinces,\n\nl!'"}}, {"text": "Notified Area Committee of Dhamangaon", "label": "ORG", "start_char": 12505, "end_char": 12542, "source": "ner", "metadata": {"in_sentence": "COMMITTEE (Mud/wtkar, J.) 503\n\nThe Notified Area Committee of Dhamangaon decided to raise the rate from I anna per bojha and I anna per hale 10 four\n\nannas per bojha and four annas per bale."}}, {"text": "sec. 66", "label": "PROVISION", "start_char": 12968, "end_char": 12975, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Provinces Municipalities Act, 1922", "label": "STATUTE", "start_char": 12983, "end_char": 13025, "source": "regex", "metadata": {}}, {"text": "22nd\n\nDec. 1936", "label": "DATE", "start_char": 13286, "end_char": 13301, "source": "ner", "metadata": {"in_sentence": "7911-3242-M/VllI, dated the 22nd\n\nDec. 1936, is published for the information of the public, the same having hceri p\"evionsly published as required by subsection (3) of sec."}}, {"text": "sec. 68", "label": "PROVISION", "start_char": 13427, "end_char": 13434, "source": "regex", "metadata": {"linked_statute_text": "the Central Provinces Municipalities Act, 1922", "statute": "the Central Provinces Municipalities Act, 1922"}}, {"text": "sec. 68", "label": "PROVISION", "start_char": 13508, "end_char": 13515, "source": "regex", "metadata": {"linked_statute_text": "the Central Provinces Municipalities Act, 1922", "statute": "the Central Provinces Municipalities Act, 1922"}}, {"text": "B. S. Mundhada", "label": "OTHER_PERSON", "start_char": 13795, "end_char": 13809, "source": "ner", "metadata": {"in_sentence": "Sd/- B. S. Mundhada, President, Municipal Committee\n\nNo."}}, {"text": "Dec. 22,\n\n1936", "label": "DATE", "start_char": 13976, "end_char": 13990, "source": "ner", "metadata": {"in_sentence": "2418-M-XIIL\"\n\nCertain rules were framed by the Government for the assessrneut and collection of tax which were also published on Dec. 22,\n\n1936."}}, {"text": "July 30. 1941", "label": "DATE", "start_char": 14106, "end_char": 14119, "source": "ner", "metadata": {"in_sentence": "These rules were, however, amended by the Local Government and the amended rules were published in the Gazette on July 30."}}, {"text": "Municipal Committee. Dhamangaon", "label": "ORG", "start_char": 14438, "end_char": 14469, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that in Dec. 1951 the Municipal Committee."}}, {"text": "SUPREME COURT REPOHTS", "label": "COURT", "start_char": 15038, "end_char": 15059, "source": "ner", "metadata": {"in_sentence": "12,511-6-6 on the ground that it was recovered from it illegally\n\nSUPREME COURT REPOHTS (l 91i5] 3 S, C, R.\n\nby the Municipal Committee and paid by it under a mistake."}}, {"text": "29-3-49", "label": "DATE", "start_char": 15255, "end_char": 15262, "source": "ner", "metadata": {"in_sentence": "6,905-14-6 recovered from them in respect of ginned cotton between 29-3-49 and some date in the year 1952 plus Rs."}}, {"text": "s. 142A", "label": "PROVISION", "start_char": 15682, "end_char": 15689, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 15697, "end_char": 15726, "source": "regex", "metadata": {}}, {"text": "1-4-1939", "label": "DATE", "start_char": 15756, "end_char": 15764, "source": "ner", "metadata": {"in_sentence": "In the plaint it was contended by the Company that after the coming into force\n\nof s. 142A of the Government of India Act, 1935 (which came into effect from 1-4-1939) till January 25, 1950 a tax on trade,\n\nprofession or calling in excess of Rs."}}, {"text": "January 25, 1950", "label": "DATE", "start_char": 15771, "end_char": 15787, "source": "ner", "metadata": {"in_sentence": "In the plaint it was contended by the Company that after the coming into force\n\nof s. 142A of the Government of India Act, 1935 (which came into effect from 1-4-1939) till January 25, 1950 a tax on trade,\n\nprofession or calling in excess of Rs."}}, {"text": "April 1, 1939", "label": "DATE", "start_char": 16423, "end_char": 16436, "source": "ner", "metadata": {"in_sentence": "250 I -\n\nper annum and that as the Company was already paying more than this amount per year even at the rate of one anna per bbjha D and one anna per bale recovery from tllem at the enhanced rate of 4 annas was illegal with effect from April 1, 1939."}}, {"text": "s. 142A", "label": "PROVISION", "start_char": 16519, "end_char": 16526, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Art. 276", "label": "PROVISION", "start_char": 16562, "end_char": 16570, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Art. 276", "label": "PROVISION", "start_char": 16972, "end_char": 16980, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 72", "label": "PROVISION", "start_char": 17126, "end_char": 17131, "source": "regex", "metadata": {"statute": null}}, {"text": "Viswanatha Sastri", "label": "LAWYER", "start_char": 17349, "end_char": 17366, "source": "ner", "metadata": {"in_sentence": "Nor again was it pressed before us by Mr.\n\nViswanatha Sastri who appears for the Municipal Committee.", "canonical_name": "Viswanatha Sastri"}}, {"text": "s. 48", "label": "PROVISION", "start_char": 17589, "end_char": 17594, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 48", "label": "PROVISION", "start_char": 17671, "end_char": 17678, "source": "regex", "metadata": {"statute": null}}, {"text": "Patwardhan", "label": "OTHER_PERSON", "start_char": 18646, "end_char": 18656, "source": "ner", "metadata": {"in_sentence": "Mr. Patwardhan for the appellant contends that this was a case of recovery of an illegal tax and."}}, {"text": "s. 48", "label": "PROVISION", "start_char": 18803, "end_char": 18808, "source": "regex", "metadata": {"statute": null}}, {"text": "Municipal Committee of Karanja", "label": "ORG", "start_char": 19093, "end_char": 19123, "source": "ner", "metadata": {"in_sentence": "That was also a case where enhancement of a tax was made by the Municipal Committee of Karanja after March 31, 1939 in excess of Rs."}}, {"text": "March 31, 1939", "label": "DATE", "start_char": 19130, "end_char": 19144, "source": "ner", "metadata": {"in_sentence": "That was also a case where enhancement of a tax was made by the Municipal Committee of Karanja after March 31, 1939 in excess of Rs."}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 19307, "end_char": 19336, "source": "regex", "metadata": {}}, {"text": "ss. 148, 83", "label": "PROVISION", "start_char": 19495, "end_char": 19506, "source": "regex", "metadata": {"linked_statute_text": "the\n\nGovernment of India Act, 1935", "statute": "the\n\nGovernment of India Act, 1935"}}, {"text": "Bose A.C.J.", "label": "JUDGE", "start_char": 19554, "end_char": 19565, "source": "ner", "metadata": {"in_sentence": "The relevant observations of Bose A.C.J. (as he then was) who delivered the judgment are as follows:\n\n\"It was then argued that the Civil Courts have no jurisdiction because of sections 83 and 84 of the Central Provinces Municipalities Act as applied to Berar."}}, {"text": "sections 83 and 84", "label": "PROVISION", "start_char": 19701, "end_char": 19719, "source": "regex", "metadata": {"linked_statute_text": "the\n\nGovernment of India Act, 1935", "statute": "the\n\nGovernment of India Act, 1935"}}, {"text": "Berar", "label": "GPE", "start_char": 19778, "end_char": 19783, "source": "ner", "metadata": {"in_sentence": "The relevant observations of Bose A.C.J. (as he then was) who delivered the judgment are as follows:\n\n\"It was then argued that the Civil Courts have no jurisdiction because of sections 83 and 84 of the Central Provinces Municipalities Act as applied to Berar."}}, {"text": "25th June, 1948", "label": "DATE", "start_char": 20136, "end_char": 20151, "source": "ner", "metadata": {"in_sentence": "220 of of 1946 decided on the 25th June, 1948) one of us (Bose, J.) held that provisions corresponding to sections 83 and 84 come into play only when the Municipal Committee acts within the scope of its authority, that is to say, when it is acting or purporting to act under the Municipalities Act."}}, {"text": "Bose", "label": "JUDGE", "start_char": 20164, "end_char": 20168, "source": "ner", "metadata": {"in_sentence": "220 of of 1946 decided on the 25th June, 1948) one of us (Bose, J.) held that provisions corresponding to sections 83 and 84 come into play only when the Municipal Committee acts within the scope of its authority, that is to say, when it is acting or purporting to act under the Municipalities Act."}}, {"text": "sections 83 and 84", "label": "PROVISION", "start_char": 20212, "end_char": 20230, "source": "regex", "metadata": {"linked_statute_text": "the\n\nGovernment of India Act, 1935", "statute": "the\n\nGovernment of India Act, 1935"}}, {"text": "sec. 142", "label": "PROVISION", "start_char": 20494, "end_char": 20502, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 83 and 84", "label": "PROVISION", "start_char": 21471, "end_char": 21489, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 48", "label": "PROVISION", "start_char": 21541, "end_char": 21548, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 48", "label": "PROVISION", "start_char": 21619, "end_char": 21626, "source": "regex", "metadata": {"statute": null}}, {"text": "section 48", "label": "PROVISION", "start_char": 21883, "end_char": 21893, "source": "regex", "metadata": {"statute": null}}, {"text": "section 48", "label": "PROVISION", "start_char": 21947, "end_char": 21957, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhandara under a similar provision of the Local Self- Government Act, 1920", "label": "STATUTE", "start_char": 22329, "end_char": 22403, "source": "regex", "metadata": {}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 22753, "end_char": 22782, "source": "regex", "metadata": {}}, {"text": "Kishorilal", "label": "OTHER_PERSON", "start_char": 23098, "end_char": 23108, "source": "ner", "metadata": {"in_sentence": "This was in fact conceded in the Court below and the contention raised before us that the persons who gave grain to Kishorilal for grinding and not he were the trader' ed was plainly devoid of force."}}, {"text": "section 142", "label": "PROVISION", "start_char": 23342, "end_char": 23353, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Professions Tax Limitation Act, 1941", "label": "STATUTE", "start_char": 23402, "end_char": 23438, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 71", "label": "PROVISION", "start_char": 23605, "end_char": 23610, "source": "regex", "metadata": {"linked_statute_text": "the Professions Tax Limitation Act, 1941", "statute": "the Professions Tax Limitation Act, 1941"}}, {"text": "s. 73", "label": "PROVISION", "start_char": 23638, "end_char": 23643, "source": "regex", "metadata": {"linked_statute_text": "the Professions Tax Limitation Act, 1941", "statute": "the Professions Tax Limitation Act, 1941"}}, {"text": "s. 79(1)", "label": "PROVISION", "start_char": 23912, "end_char": 23920, "source": "regex", "metadata": {"linked_statute_text": "the Professions Tax Limitation Act, 1941", "statute": "the Professions Tax Limitation Act, 1941"}}, {"text": "Central Provinces Local Self-Government Act, 1920", "label": "STATUTE", "start_char": 23935, "end_char": 23984, "source": "regex", "metadata": {}}, {"text": "s. 71", "label": "PROVISION", "start_char": 23999, "end_char": 24004, "source": "regex", "metadata": {"linked_statute_text": "the Central Provinces Local Self-Government Act, 1920", "statute": "the Central Provinces Local Self-Government Act, 1920"}}, {"text": "section 79", "label": "PROVISION", "start_char": 24089, "end_char": 24099, "source": "regex", "metadata": {"linked_statute_text": "the Central Provinces Local Self-Government Act, 1920", "statute": "the Central Provinces Local Self-Government Act, 1920"}}, {"text": "Varadachariar", "label": "JUDGE", "start_char": 25191, "end_char": 25204, "source": "ner", "metadata": {"in_sentence": "The question is a difficult one and as Varadachariar J. observed in the Federal Court decision at p. 187."}}, {"text": "Lordships of the Privy Council laid down concludes the matter so far as this Act", "label": "STATUTE", "start_char": 25526, "end_char": 25606, "source": "regex", "metadata": {}}, {"text": "sec. 73", "label": "PROVISION", "start_char": 26814, "end_char": 26821, "source": "regex", "metadata": {"statute": null}}, {"text": "f:'liyogi", "label": "JUDGE", "start_char": 27572, "end_char": 27581, "source": "ner", "metadata": {"in_sentence": "There f:'liyogi J., sitting singly has held that a suit against a munic; pal committee for the recovery of a tax illegally collected is governed bys."}}, {"text": "s. 48", "label": "PROVISION", "start_char": 28258, "end_char": 28263, "source": "regex", "metadata": {"statute": null}}, {"text": "New East India Press Co.", "label": "ORG", "start_char": 28813, "end_char": 28837, "source": "ner", "metadata": {"in_sentence": "0-4-0 per bale and the learned Judges held, following the decision in the New East India Press Co.'s case(') that the enhancement was ultra vires of Art."}}, {"text": "Art. 276", "label": "PROVISION", "start_char": 28888, "end_char": 28896, "source": "regex", "metadata": {"linked_statute_text": "But the point is whether what was done by a local body under the colour of an Act can be regarded as something purported to be done under the Act", "statute": "But the point is whether what was done by a local body under the colour of an Act can be regarded as something purported to be done under the Act"}}, {"text": "Art. 276", "label": "PROVISION", "start_char": 29456, "end_char": 29464, "source": "regex", "metadata": {"statute": null}}, {"text": "Ayyangar", "label": "JUDGE", "start_char": 30507, "end_char": 30515, "source": "ner", "metadata": {"in_sentence": "Ayyangar J. who spoke for the Court has stated towards the end of the Judgment as follows:-\n\n\"In the circumstances the correctness of the decision of the High Court in holding the impugned levy to be a tax on 'callings or employments' and therefore subject to a pecuniary limit of Rs."}}, {"text": "Art. 276(2)", "label": "PROVISION", "start_char": 31086, "end_char": 31097, "source": "regex", "metadata": {"statute": null}}, {"text": "Bornur", "label": "GPE", "start_char": 32010, "end_char": 32016, "source": "ner", "metadata": {"in_sentence": "at the date when the same was challenged, being a levy imposed on persons carrying on the business of pressing cotton, was a tax on 'professions, trades, callings, or employments' and that the learned Jndges of the High Court came to a correct conclusion that the respondents were entitled to the declaration which was granted as regards the maximum\n\namount of the tax th2t could be levied from the respondents \"\n\nIn Bornur, h Municipality's case(') on which the High Court :eiied in Mo'.i'.al case, what had happened H was !"}}, {"text": "s. 73(iv)", "label": "PROVISION", "start_char": 32151, "end_char": 32160, "source": "regex", "metadata": {"statute": null}}, {"text": "Boroughs Act, 1925", "label": "STATUTE", "start_char": 32184, "end_char": 32202, "source": "regex", "metadata": {}}, {"text": "s. 206", "label": "PROVISION", "start_char": 32945, "end_char": 32951, "source": "regex", "metadata": {"linked_statute_text": "Boroughs Act, 1925", "statute": "Boroughs Act, 1925"}}, {"text": "Bombay Municipal Boroughs Act, 1925", "label": "STATUTE", "start_char": 32959, "end_char": 32994, "source": "regex", "metadata": {}}, {"text": "s. 48", "label": "PROVISION", "start_char": 33021, "end_char": 33026, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Municipal Boroughs Act, 1925", "statute": "the Bombay Municipal Boroughs Act, 1925"}}, {"text": "Central Provinces and Berar Municipalities Act, 1922", "label": "STATUTE", "start_char": 33034, "end_char": 33086, "source": "regex", "metadata": {}}, {"text": "s. 206", "label": "PROVISION", "start_char": 33354, "end_char": 33360, "source": "regex", "metadata": {"linked_statute_text": "the Central Provinces and Berar Municipalities Act, 1922", "statute": "the Central Provinces and Berar Municipalities Act, 1922"}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 33392, "end_char": 33400, "source": "ner", "metadata": {"in_sentence": "In the course of the judgment Bhagwati J.. observed that the acts which fell within the c; ltegory of those \"don.e or p11rporting to have been done in pursuance bf this Act\" could only be those which were done under a vestige or semblance of authority or of a shadow of right.", "canonical_name": "Bhagwati"}}, {"text": "s. 73(iv)", "label": "PROVISION", "start_char": 34357, "end_char": 34366, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 35117, "end_char": 35125, "source": "ner", "metadata": {"in_sentence": "Apart from the fact that much of what was said In this case Is opposed to a recent decision of this Court to which we will presently make a reference certain observations made by Bhagwati J., in fact lend support to the <irgument advanced before us by Mr. Patwardhan.", "canonical_name": "Bhagwati"}}, {"text": "Mwfholkar", "label": "JUDGE", "start_char": 35782, "end_char": 35791, "source": "ner", "metadata": {"in_sentence": "COWIITTEE (Mwfholkar, J.) 5Jl\n\nA which it has levied and collected a tax."}}, {"text": "s. 487", "label": "PROVISION", "start_char": 37097, "end_char": 37103, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 48", "label": "PROVISION", "start_char": 37160, "end_char": 37165, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 127", "label": "PROVISION", "start_char": 37593, "end_char": 37599, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 127", "label": "PROVISION", "start_char": 37911, "end_char": 37917, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court at Nag", "label": "COURT", "start_char": 39001, "end_char": 39018, "source": "ner", "metadata": {"in_sentence": "of the suit before the trial court the appellant had preferred a writ petition before the High Court at Nag; pur in which it contended that the notification of April 10, 1941 enhancing the tax from one anna per bojha and one anna per bale to four annas per bojha and four annas per bale was illegal and\n\nultra vires and should therefore be quashed."}}, {"text": "April 10, 1941", "label": "DATE", "start_char": 39071, "end_char": 39085, "source": "ner", "metadata": {"in_sentence": "of the suit before the trial court the appellant had preferred a writ petition before the High Court at Nag; pur in which it contended that the notification of April 10, 1941 enhancing the tax from one anna per bojha and one anna per bale to four annas per bojha and four annas per bale was illegal and\n\nultra vires and should therefore be quashed."}}, {"text": "April 12, 1955", "label": "DATE", "start_char": 39309, "end_char": 39323, "source": "ner", "metadata": {"in_sentence": "This petition was , granted by the High Court on April 12, 1955."}}, {"text": "s. 142", "label": "PROVISION", "start_char": 40268, "end_char": 40274, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 276", "label": "PROVISION", "start_char": 40312, "end_char": 40320, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 48", "label": "PROVISION", "start_char": 41041, "end_char": 41046, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 142", "label": "PROVISION", "start_char": 42274, "end_char": 42280, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act", "label": "STATUTE", "start_char": 42290, "end_char": 42313, "source": "regex", "metadata": {}}, {"text": "Art. 276", "label": "PROVISION", "start_char": 42346, "end_char": 42354, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act,\n\n1935", "statute": "the Government of India Act,\n\n1935"}}, {"text": "Schedule VII", "label": "PROVISION", "start_char": 42629, "end_char": 42641, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act,\n\n1935", "statute": "the Government of India Act,\n\n1935"}}, {"text": "Parliament", "label": "ORG", "start_char": 42821, "end_char": 42831, "source": "ner", "metadata": {"in_sentence": "Taxes on professions, trades, callings and employments are taxes on income and are thus outside the provincial I and now State-list and belong exclusively to Parliament and before that to the Central Legislature."}}, {"text": "Yet under a large number of laws enacted before the Government of India Act, 1935", "label": "STATUTE", "start_char": 42876, "end_char": 42957, "source": "regex", "metadata": {}}, {"text": "s. 142", "label": "PROVISION", "start_char": 43173, "end_char": 43179, "source": "regex", "metadata": {"linked_statute_text": "Yet under a large number of laws enacted before the Government of India Act, 1935", "statute": "Yet under a large number of laws enacted before the Government of India Act, 1935"}}, {"text": "British Parliament", "label": "ORG", "start_char": 43201, "end_char": 43219, "source": "ner", "metadata": {"in_sentence": "When this was realised s. 142-A was enacted by the British Parliament which saved the power conferred by pre-existing laws\n\nbut limited the amount payable to Rs."}}, {"text": "31st March, 1939", "label": "DATE", "start_char": 43321, "end_char": 43337, "source": "ner", "metadata": {"in_sentence": "50 after 31st March, 1939."}}, {"text": "Art. 276", "label": "PROVISION", "start_char": 43521, "end_char": 43529, "source": "regex", "metadata": {"linked_statute_text": "Yet under a large number of laws enacted before the Government of India Act, 1935", "statute": "Yet under a large number of laws enacted before the Government of India Act, 1935"}}, {"text": "Supreme Court at Bombay", "label": "COURT", "start_char": 44014, "end_char": 44037, "source": "ner", "metadata": {"in_sentence": "Now coming to the cases, the first was one in which the question considered by the Privy Council was whether the Supreme Court at Bombay was competent to entertain a suit for recovery of damages brought by one Hurkissondas Hurgovundass against the\n\nCollector of Bombay and others in respect of trespass and nuisance committed by certain officers of the Collectorate while purporting to execute a distress warrant issued against one Narrondass for nonpayment of arrears of land revenue."}}, {"text": "Hurkissondas", "label": "OTHER_PERSON", "start_char": 44111, "end_char": 44123, "source": "ner", "metadata": {"in_sentence": "Now coming to the cases, the first was one in which the question considered by the Privy Council was whether the Supreme Court at Bombay was competent to entertain a suit for recovery of damages brought by one Hurkissondas Hurgovundass against the\n\nCollector of Bombay and others in respect of trespass and nuisance committed by certain officers of the Collectorate while purporting to execute a distress warrant issued against one Narrondass for nonpayment of arrears of land revenue."}}, {"text": "Narrondass", "label": "OTHER_PERSON", "start_char": 44333, "end_char": 44343, "source": "ner", "metadata": {"in_sentence": "Now coming to the cases, the first was one in which the question considered by the Privy Council was whether the Supreme Court at Bombay was competent to entertain a suit for recovery of damages brought by one Hurkissondas Hurgovundass against the\n\nCollector of Bombay and others in respect of trespass and nuisance committed by certain officers of the Collectorate while purporting to execute a distress warrant issued against one Narrondass for nonpayment of arrears of land revenue."}}, {"text": "Dec. 8, 1823", "label": "DATE", "start_char": 44418, "end_char": 44430, "source": "ner", "metadata": {"in_sentence": "Under the letters Patent dated Dec. 8, 1823 the jurisdiction of the Supreme Court was barred \"in any matter concerning the revenue under the management of the\n\n(') 'M.I.A. 353, 379. (')"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 44455, "end_char": 44468, "source": "ner", "metadata": {"in_sentence": "Under the letters Patent dated Dec. 8, 1823 the jurisdiction of the Supreme Court was barred \"in any matter concerning the revenue under the management of the\n\n(') 'M.I.A. 353, 379. 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"PROVISION", "start_char": 90249, "end_char": 90254, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 83", "label": "PROVISION", "start_char": 90733, "end_char": 90738, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 83", "label": "PROVISION", "start_char": 91475, "end_char": 91480, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 92100, "end_char": 92105, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84(3)", "label": "PROVISION", "start_char": 92325, "end_char": 92333, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84(3)", "label": "PROVISION", "start_char": 92498, "end_char": 92506, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 67", "label": "PROVISION", "start_char": 92541, "end_char": 92546, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 92562, "end_char": 92576, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "State of Andhra Pradesh", "label": "ORG", "start_char": 92801, "end_char": 92824, "source": "ner", "metadata": {"in_sentence": "The appellant before this Court, in that case, sued the State of Andhra Pradesh for a decree for a certain amount on the ground that that amount\n\nhad been illegally recovered from it under the Madras General Sales Tax Act, 1939."}}, {"text": "Court Lo set aside or modily any assessment made under the Act", "label": "STATUTE", "start_char": 93110, "end_char": 93172, "source": "regex", "metadata": {}}, {"text": "s. 67", "label": "PROVISION", "start_char": 93236, "end_char": 93241, "source": "regex", "metadata": {"linked_statute_text": "Court Lo set aside or modily any assessment made under the Act", "statute": "Court Lo set aside or modily any assessment made under the Act"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 93249, "end_char": 93263, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Raleigh", "label": "OTHER_PERSON", "start_char": 94366, "end_char": 94373, "source": "ner", "metadata": {"in_sentence": "The view expressed by this Court is practically the same as had\n\nbeen expressed in Raleigh's Case(')."}}, {"text": "s. 83", "label": "PROVISION", "start_char": 95481, "end_char": 95486, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 48", "label": "PROVISION", "start_char": 95658, "end_char": 95663, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 48", "label": "PROVISION", "start_char": 95806, "end_char": 95811, "source": "regex", "metadata": {"statute": null}}, {"text": "Poona Municipality", "label": "ORG", "start_char": 96052, "end_char": 96070, "source": "ner", "metadata": {"in_sentence": "In this case the Poona Municipality had imposed a tax on the amount of octroi duty which had been levied on the goods imported within the Municipal limits but had been subsequently exported out of such limits within the specified periods."}}, {"text": "s. 59(b)(xi)", "label": "PROVISION", "start_char": 96463, "end_char": 96475, "source": "regex", "metadata": {"statute": null}}, {"text": "Act was repealed by the Bombay Municipal Boroughs Act", "label": "STATUTE", "start_char": 96529, "end_char": 96582, "source": "regex", "metadata": {}}, {"text": "Bombay Provincial Municipal Corporation Act, 1949", "label": "STATUTE", "start_char": 96642, "end_char": 96691, "source": "regex", "metadata": {}}, {"text": "Poona", "label": "OTHER_PERSON", "start_char": 96717, "end_char": 96722, "source": "ner", "metadata": {"in_sentence": "That Act was applied to Poona on February 15, 1950 and thereafter the powers of taxation of the Municipality were governed by s. 127 of that Act which authorised the."}}, {"text": "February 15, 1950", "label": "DATE", "start_char": 96726, "end_char": 96743, "source": "ner", "metadata": {"in_sentence": "That Act was applied to Poona on February 15, 1950 and thereafter the powers of taxation of the Municipality were governed by s. 127 of that Act which authorised the."}}, {"text": "s. 127", "label": "PROVISION", "start_char": 96819, "end_char": 96825, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Provincial Municipal Corporation Act, 1949", "statute": "the Bombay Provincial Municipal Corporation Act, 1949"}}, {"text": "Poona City Municipal Corporation", "label": "ORG", "start_char": 97326, "end_char": 97358, "source": "ner", "metadata": {"in_sentence": "this Court that the amount of tax on octroi refund could not be imposed by the Poona City Municipal Corporation."}}, {"text": "s. 127", "label": "PROVISION", "start_char": 97427, "end_char": 97433, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Provincial Municipal Corporation Act, 1949", "statute": "the Bombay Provincial Municipal Corporation Act, 1949"}}, {"text": "s. 127", "label": "PROVISION", "start_char": 97722, "end_char": 97728, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 97773, "end_char": 97782, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 127", "label": "PROVISION", "start_char": 98057, "end_char": 98063, "source": "regex", "metadata": {"statute": null}}, {"text": "Poona Municipal Corporation", "label": "ORG", "start_char": 98641, "end_char": 98668, "source": "ner", "metadata": {"in_sentence": "The provision of sub-s. (4) did not in any way affect the decision of this Court in holding that the Poona Municipal Corporation could not impose a tax on octroi refund."}}, {"text": "s. 487", "label": "PROVISION", "start_char": 98849, "end_char": 98855, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 487", "label": "PROVISION", "start_char": 99215, "end_char": 99221, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 48", "label": "PROVISION", "start_char": 99319, "end_char": 99324, "source": "regex", "metadata": {"statute": null}}, {"text": "Municipalities Act, 1929", "label": "STATUTE", "start_char": 100773, "end_char": 100797, "source": "regex", "metadata": {}}, {"text": "Niyogi", "label": "JUDGE", "start_char": 100863, "end_char": 100869, "source": "ner", "metadata": {"in_sentence": "Niyogi J. expressed at :p. 219 his agreement with the principle that if.", "canonical_name": "Ni yogi"}}, {"text": "section 68", "label": "PROVISION", "start_char": 102207, "end_char": 102217, "source": "regex", "metadata": {"statute": null}}, {"text": "4mraoti Municipal Co111111it1ce\"s", "label": "RESPONDENT", "start_char": 102468, "end_char": 102501, "source": "ner", "metadata": {"in_sentence": "4mraoti Municipal Co111111it1ce\"s Case() was in a way on all fours with the present case."}}, {"text": "Bo", "label": "JUDGE", "start_char": 102952, "end_char": 102954, "source": "ner", "metadata": {"in_sentence": "In this case the question before Bo, e J. was whether a suit for the recovery of an amount recovered in excess of what cculd be legally taxed came within the mischief of s. 71 and s. 73(1) of the Central Provinces Local Self-Government Act, 1910 (C. P. l V of 1920)."}}, {"text": "s. 71", "label": "PROVISION", "start_char": 103089, "end_char": 103094, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 73(1)", "label": "PROVISION", "start_char": 103099, "end_char": 103107, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Provinces Local Self-Government Act, 1910", "label": "STATUTE", "start_char": 103115, "end_char": 103164, "source": "regex", "metadata": {}}, {"text": "section 79", "label": "PROVISION", "start_char": 103241, "end_char": 103251, "source": "regex", "metadata": {"linked_statute_text": "the Central Provinces Local Self-Government Act, 1910", "statute": "the Central Provinces Local Self-Government Act, 1910"}}, {"text": "Section 73", "label": "PROVISION", "start_char": 103976, "end_char": 103986, "source": "regex", "metadata": {"linked_statute_text": "We do not see why an ordinary decision given under the Act be not considered to be an order made under the Act", "statute": "We do not see why an ordinary decision given under the Act be not considered to be an order made under the Act"}}, {"text": "Subbayya", "label": "JUDGE", "start_char": 104718, "end_char": 104726, "source": "ner", "metadata": {"in_sentence": "His view, as we have already pointed out with reference to something done under the Act, docs not find support from Raleigh's Clue(') and Subbayya c Che11y's Case(')."}}, {"text": "Bcse", "label": "JUDGE", "start_char": 104747, "end_char": 104751, "source": "ner", "metadata": {"in_sentence": "Bcse J. then considered the content of the expression purported lo be done'."}}, {"text": "Nagpur", "label": "GPE", "start_char": 105111, "end_char": 105117, "source": "ner", "metadata": {"in_sentence": "The appellant mainly relied on the Nagpur reported as M1111icipa/ Commi/lee, Karanja v. New East India Press Co. Ltd., Bombay(')."}}, {"text": "ss. 48", "label": "PROVISION", "start_char": 105337, "end_char": 105343, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 48", "label": "PROVISION", "start_char": 105785, "end_char": 105790, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 48", "label": "PROVISION", "start_char": 105920, "end_char": 105925, "source": "regex", "metadata": {"statute": null}}, {"text": "section 48", "label": "PROVISION", "start_char": 105986, "end_char": 105996, "source": "regex", "metadata": {"statute": null}}, {"text": "Ni yogi", "label": "JUDGE", "start_char": 106205, "end_char": 106212, "source": "ner", "metadata": {"in_sentence": "We have referred to this case and expressed full agreement with) G the views expressed by Ni yogi J. there.", "canonical_name": "Ni yogi"}}, {"text": "s. 84(3)", "label": "PROVISION", "start_char": 106734, "end_char": 106742, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 48", "label": "PROVISION", "start_char": 106768, "end_char": 106773, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_536_549_EN", "year": 1965, "text": "DWARKANATH, HINDU UNDIVIDED FAMILY A v.\n\nINCOME-TAX OFFICER, SPECIAL CIRCLE, KANPUR\n\nANDANR.\n\nMarcil 29, J 965\n\n(K. SUBBA RAO, J.C. SHAH ANDS. M. SIKRI, JJ.)\n\nIudian Income-tax Act (11 of 1922), s. 33A(2)-Commissioner's powe-r of rev:sion-lf administrative or quasi-judiciaL--\"Deponent's own knowledge\", meaning of\n\nPursuant to the direct10ns of the Income-tax Appe:late Tr; bunal, the Income-tax Office;·, determined the assessce's capital gains under\n\n1. 12B or the Income-tax Act. 19n. He did not, however, make any order under s 2.1(31 of the Act, nor did he issue a notice or demand under s. 29 or the Act. The assessee filed an application before the Commissioner of Income-tax. under s. 33Al:!) of the Act, for rev:s1ng the computation made by the Income-tax Officer drav.<ng his zttcntton to a der•s10n of the Bombay High Court in Baiinath s case. (1957) 31 l.T.R 643. as to how the capital gams should be a\"rertained.\n\nThat decision was based upon a consideration of the very documents vlhich \\1.:crc the basis of the asscssees claim. The Commissionc>r\n\ndismissed the revision petition as not rnr..intainable. as v.ell as on merits, 1gnor1ng the Bombay decision. Meanv.:h1le, the asscssee filed an application requesting the Income-tax Officer to issue a notice of demand under s. <!9, to enzble him to file an appeal, but the Officer declined lo dv so. The '-SSC'sscc filed a \\\\rit application in the lligh Court for issu.ng appropriate \\\\; Tits to the Commissioner and thr Income-tax Olfirt'I', but the High Court d\"missed it in lim.ne.\n\nIn his appeal to this Court, the asst•ssee contended that (i) the High Court erred ii) holding that the aflidav.t filed in support or the writ pct.lion was not in accordance \\\\'Ith law, £nd that even if there were any defects the High Court should have given him an opportunity to rectt!y them. and (ii) the fl, gh Court erred :n distinguishing the Bombay decision and in hold:ng that there was no force in the rev; sion tiied before the Comrn:ssioner, and that, the High Ccurt should have directed the Comm:ssioner to entertain the revision and d!spose of it in accordance with !av.· by g1v:ng suitable directions to the Income-tax Officer. The respondent ra:sed a preliminary objection that as the order of the Comrn:ssioner v.as an admmistrative act, Art. 226 of the Const:tution could net be invoked.\n\nHELD: (i) As no appeal lay to the App<'llate Assistant Commissioner aga1ns_t the calcuaLons made by the Income-tax Officer, the Comm:ssioner had po\\vcrs under s. 33A(2) to revis1~ the Incometax Officer's order. The jurisdiction cor.ferrcd en the Commissioner by the sect\\on is a judicial one. The nature of the jurisd; ction and the rights decided carry with them necessarily the duty to act judicially in dispos:ng of the rev1s1on. Further, the fact that a D1v1sion Bench of one of the High Courts in India had taken a view in favour or the assessee, indicated that the question raised v.as arguable.and required serious consideration. Therefore_. a '\"\"'rit of certiorari quashing the order of the Commissioner dismissing the assessec's revision petition should be issued. [544E-G; 548\\)] ' 638\n\nl>WARKANATH V. I. T. O. (Subba /loo, J.) 537\n\nSitalpore Colliery Concern Ltd. v. Union of India,\n\n(1957) 32 I.T.R. 26, Additional Income-tax Officer, Cuddapah v. Cuddapah Star Transport Co. Ltd. (1960) 40 I.T.R. 200 and Suganchand Saraogi v.\n\nComm:ssioner of Income-tax, (1964) 53 I.T.R. 717, overruled.\n\nEven if the Commissioner onlv made an adminislrative crder in refusing' to give any dii-ection to t'he Income-t£.x Officer, the assessee would st!ll be entitled to approach the High Court under Art. 226, and a writ of mandamus directing the Incometax Officer to discharge his statutory duty of passing the order and issuing the notice of demand in accordance with law. should be issued. [546C-E]\n\n(ii) The affidav:t filed on behalf of the assessee was complete and ccmpl'ed with the rules made by the mgh Court. The affidavit spoke only of matters which 1,~:ere \\vithiil the deponent\"s own knowledge, because, the phrase \"deix>nent'sown kno\\yledge\" is wide enough to comprehend the kn a\\\\· ledge derived from a perusal of relevant documents.\n\nEven if the affidav; t was defective in any manner, the High Court instead of dismissing the petition in !imine should have given the assessee, a reasonable opportunity to file a better affidavit. [547F-G, HJ .\n\n(iii) The High Court was also in error in hclding that the deci- •ion <>f the Bombay High Court was given on different facts, for the facts in both cases were the same and they arose out of the same transaction. (5488-C] ·\n\nQVIL APPELLATE JURISDICTION: Civil Appeal No. 62 of 1964.\n\nAppeal by special leave from the judgment' and decree dated July 28, 1959 of the Allahabad High Court in Civil Miscellaneous Writ No. 2071 of 1959.\n\nA. V. Viswanatha Sastri, Ramesh war Nath, S. N. A nd/ey and P. L. Vohra. for the appellant.\n\nGopa/ Singh and R. N. Sachthey, for the respondents.\n\nThe Judgment of the Court was delivered by Sobba Rao, J. The facts leading up to this appeal may briefly be narrated. Gujarat Collon Mills Co. Ltd., hereinafter called the Company. is a limited company having its registered office at Ahmedabad. In the year l 938 the Company appointed Messrs. Pira Mal Girdhar Lal & ( o .. hereinafter called the Agency Firm, as its Managing Agents. On February 28, 1938, a formal agreement was entered into between the Companv and the Agency Firm.\n\nThe said Agency Firm was formed under an instrument of partner ship dated Februorv 26. 1938, with 11 partners-3 of them are compendiously described as the \"Bombay Group\" and the remaining 8 of them as the \"Kanpur Group\". With certain variations in the constitution of the Agency Firm. the said firm functioned as the Managin!? Agents of the Company till September 1946.\n\nIn September 1946 chareho!din(! of the partners of the Agency firm in the Company was as follows: Kanpur Group Bombay Group\n\n32.500 shares. 26,362 shares.\n\nSUPREM~ COliRT JU~PORT~ (191i5] 3 8.C.R.\n\nBecause of certain differences between the partners, they decided among themselves to sell lhcir shares and to surrender their Managing Agency. On September 7, 1946, the said 11 partners etered into an agreement with the firm of Messrs. Chhuttu Ram & Sons of Bihar, hereinafter called the Purchaser Firm. Under that agree\n\nment it was provided that 65012 shares held by the 11 partners of the Agency firm. directly or through their nominees, should be sold to the Purchaser Firm at Rs. 65 per share and that the Agency Firm should before November 15. 1946, resign its office of Managina Agency of th: Company. It was a condition of the agreement that it should have operation only after the Purchaser Firm or its nominees were appointed as the Managirg Agents of the Company.\n\nOn October 30, 1946, the Company 'lleld its General Body Meeting and accepted the resignation of the Agency Firm and by another resolution appointed the Purchaser Fi'rm as the Managing Agents in its stead. In terms of the agreement, the Purchaser Firm paid for the entire shareholding of the partners of the Agency Firm at Rs. 65 per share. The appellant is a Hindu undivided family. Its karta was one Dwarkanath and the present karta is his son Ramji Prasad. The said family was one of the 11 partners of the Agency Firm belonging to the Kanpur Group. Out of the total shareholding the appellant held 11.230 shares. It received the price for the said shares at the rate of Rs. 65 per share.\n\nIt was assessed to income-tax for the year 1948-49 and the Income-tax Officer by his order dated June 5. 1952. assessed the excess amount of Rs. 2.98,909 realized by the assessce under the head \"income from business\", i.e., the difference in the amount for which it purchased the shares and that for which it sold them. On appeal, the Appellate Assistant Commissioner of Income-tax confirmed the same. On further anneal. the Income-tax Appellate Tribunal. Delhi Bench. held that the said receipt had to be taxed as \"'capital gains\" under s. 12B. of the Income-tax Act, 1922, and directed the lrcometax Officer to modify the assessment in accordance with its order. The assessee made an application under s. 35 of the Income-tax Act to the Tribunal for further directions and the Tribunal. by its order dated March 26, 1954. amended its previous Nder dated August 3. 1953, by substituting the word \"processed\" in place of the word \"assessed\" in its previous order. The assessee raised various contentions before the Income-tax Officer, inter alia, that the said income was not liable to he taxed under s. 12B of the Income-tax\n\nAct under the head \"canital gains\" and that in any case in order to determine the amount of capital gains the market value of the >hares only should he taken into consideration, as the price ot Rs. 65 per share included also the consideration for the relinquishment of the managing agency rights The Income-tax Officer rejected the said contentions of the assessee.\n\nHe re-determined the assessable income under the heading \"capital gains\" but did not\n\nissue a notice of demand as prescribed iri s. 29 of the Income-tax ,-\\, t. After making an infructuous attempt to get suitablC directions\n\nDWARKANATH v. I. T. o. (Subba Rao, J.) 539\n\nfrom the Appellate Tribunal, on March 5, 1956, the assessee filed an application before the Income-tax Officer to issue a notice of demand under s. 29 of the Income-tax Act so that it might prefer an appeal against the same to the appropriate authority. But the Income-tax Officer refused to issue any such notice. The assessee preferred an appeal against that order to the Appellate Assistant Commissioner under s. 30 of the Income-tax Act and that was dismissed on March 8, 1957; on the ground that it was not maintainable. Meanwhile on September 27, 1956, the appellant filed an aoolication before the Commissioner of Income-tax under s. 33A(2) of the Income-tax Act for revising the order of the Income-tax Officer dated September 28, 1955. On March 28. 1959, the Commissioner dismissed the revision oetition on two grounds, namely,\n\n(j) that it was not clear whether the revision petition under s. 33A of the Income-tax Act was maintainable, and (ii) on merits. It may be noticed that long before the revision petition was dismissed, the appeal filed by the assessee against the order of the Income-tax\n\nOfficer to the Appellate Assistant Commissioner was dismissed on March 8, 1957. On November 18, 1957, the attention of the Commissioner was also dra\"m to the fact that the Bombay High Court in the case of a reference to that Court at the instance of the Bombay Group held that the market value of the shares should be taken into consideration to ascertain the excess realized on the sale of the shares of the assessee for the purpose of capital gains tax. The Commissioner ignored that decision in dismi,, ing the revision. Thereafter, on July 28. 1959, the assessee filed Writ Application No. 2071 of 1959 in the High Court of Judicature at Allahabad, inter alia, for a writ of certiorari or any other direction or order of like nature to quash the order of the Income-tax Commissioner, Lucknow, dated March 28. 1959, and the Order of the Income-tax Officer dated September 28, 1955, and for a writ of mandamus or any other order or direction of the like nature directing the Commissioner to pass a fresh order in accordance with the decision of the Bombay High Court and direct the Incometax Officer to pass a fresh order in accordance with law and to issue a notice of demand as required by s. 29 of the Income-tax Act. The High Court dismissed the said application in limine mainlyon the following three grounds: (1) the affidavit filed in support of the writ petition was highly unsatisfactory and on the basis of such an affidavit it was not possible to entertain the petition; (2) the facts given in the affidavit were incomplete and con- B fused; and (3) even on merits, there was no force in the rcvjsion petition. Hence the appeal.\n\nMr. A. V. Viswanatha Sastri, learned counsel for the appellant, contended that the affidavit filed in support of the petition was in accordance with law. and. that, even if there were any defects, the Court should have given an opportunity to the appellant to rectify them; and that the High Court should have held\n\nMO BUPR!!:llE COURT REPORTS\n\n[1965} 3 8.C.B.\n\nthat the rev1S1on against the order of the Income-tax Officer to the Commissioner was maintainable under s. 33A of the Act, as the appeal against that order to the Appellate Assistant Commissioner was not maintainable and that it should have directed the Commissioner to entertain the revision and dispose of it in accord ance with law <; lirecting the Income-tax Officer to issue a notice of dema id under s. 29 of th~ Income-tax Act. He further contended that the High c,, urt wer.t wrong in holding that the facts in the Bombav decision were different from those in the present case, for the facts in both the cases were the same and in fact they arose out of the same transaction. namely. the sale of the shares by the Agency Firm to the Purchaser Firm.\n\nMr.\n\nGopal Singh, learned counsel for the Revenue, while supporting the order of the High Court raised a preliminary objection. namelv. that the order of the Commissioner under s. 33A of the Income:tax Act was administrative act and. therefore, no writ of certiorari would lie to the High Court to quash that nrder under Art. 226 of the Constitution.\n\nWe shall first take the preliminary objection. for if we maintain it. no other question will arise for consideration. Article 226 of the Constitution reads:\n\n\" ......... every High Court shall have power. throughout. the territories in relation to which it exercises jurisdiction. to issue to any person or authority. including in appropriate cases any Government, within those territories directions. orders or writs, includinc writs in the nature of habeas corpus, mandamus. prohibition. quo warranto and certiorari. or any of them, for the enforcemert of any of the rights conferred by Part Ill anl! f.Jr any other purpose.\"\n\nThis article is couched in comprehensive phraseology and it exfacie confers a wide power on the High Cmrts to reach injustice wherever it i.~ founct. The Constitution designedly used a wide language in describing the nature of the power. the purpose for which and the person or authoritv aeainst whrim it can be exercised. it can iS<Ue writ' in the ntt; re of prero.gativc writs as under: stood in Enland; hut the scope of those writs also is widened hv the use of the expression \"nature\"'. for the said exnression docs no\"t equate the writs that can be issued in India with those in England. hut onlv draws an analogy from them. That apart. High Courts\n\nca~ alsri issue direction' orders or writs other than the r\"rcrogative wnts. It enables the Hi.eh Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to cqu:llc the scope of the power of the High Court under Art. 226 of the C<>nstitution with that of the Engi.ish Courts to\n\nD'lfillUN.lTK v. I. T. o. (Subbii Rao, J.) i4J\n\nissue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government into a vast\n\ncountry like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this\n\nis not to say that the High Courts can function arbitrarily under this article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. This interpretation has been accepted by the Court in Basappa v. Nagappa(') and P. !. Irani v. Stale of Madras(').\n\nBut we are satisfied that this case falls directly within the confines of the certiorari jurisdiction as understood in England. It is well settled that a writ of certiorari can be issued only to quash a judicial or a quasi-judicial act and not an administrative act. It is, therefore, necessary to notice the distinction between the said two categories of acts. The relevant criteria have been laid down witk clarity by Atkin, L.J., in King v.\n\nElectricity Commissioners('), elaborated by Lord Justice Scrutton in ]?.ex v. London County Council(') and authoritatively restated in Province of Bombay v.\n\nKusaldas S. Advani('). The said decisions laid down the followin£ conditions to be complied with: (!) The body of persons must have legal authority; (2) the authority should be given to determine questions affecting the rights of subjects; and (3) they should have a duty to act judicially. So far there is no dispute. But in decided cases, particularly in India, there is some mixing up of two different concepts, viz .. administrative tribunal and administrative act.\n\nThe question whether an act is a judicial act or an administrative one arises ordinarily in the context of the proceedings of an administrative tribunal or authority. Therefore, the fact that an order was issued or an act emanated from an administrative tribunal would not make it anytheless a quasi-judicial act if the aforesaid tests were satisfied. The concept of a quasi-judicial act has been conceived and developed by English Judges with a view to keep the administrative tribunals and authorities within bounds. Parker, J .. in R. V. Manchester Legal Aid Committee(') brought out the distinction between judicial and administrative acts very vividly in the following passage:\n\n\"The true view. as it seems to us, is that the duty to act judicially may arise in widely different circumstances which it would be impossible, and. indeed, inadvisable, to define exhaustively ....... When, on the other hand, the decision is that of an administrative body and is actuated in whole or in part by questions of policy. the duty to act judicially may arise in the course of arriving at that decision. Thus, if in order to arrive at the decision. the\n\n(') [1965] I S.C.R. 250.\n\n(') [1924] I K.B. 171.\n\n(') [1950] S.C.R. 621.\n\n(') [1962] 2 S.C.R. 169.\n\n(') [193!] 2 K.B. 215. 1'1 [1952] 2 Q.ll. <13, 428.\n\nL/PlN)4SCf-\n\nSUPREME COURT REPORTS Ll965) 3 8.0.B.\n\nbody concerned had to consider proposals and objections and consider evidence, then there is the duty to act judicially in the course of that inquiry .......................... .\n\nFurther, an administrative body in ascertaining facts or law may be under a duty to act judicially notwithstanding that its proceedings have none of the formalities of and are not in accordance with the practice of a court of law ........................................ ..\n\nIf on the other hand, an administrative body in arriving at its decision at no stage has before ii any form ,,. lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any stage to act judicially\".\n\nThe relevant principles have been succinctly stated in llalsbury's Laws of England, 3rd Edn., Vol. 11, at pp. 55 and 56 thus:-\n\n\"lt is not necessary that it should be a court: an administrative body in ascertaining facts or law may be under a duty to act judicially notwithstanding that its proceedings have nne of the formalities of, and arc not in accordance with the practice of, a court of law. It is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition. A body may be under a duty, however, to act judicially (and subject to control by means of these orders) although there is no form of /is inter partes before it: it is enough that it should have to determine a question solely on the fact• of the particular case, solely on the evidence before it, apart from questions or policy or. any other extraneous considerations\"'.\n\n\"Moreover an administrative body, whose decision is aeluatcd in whole or in part by questions of policy, may be under a duty to act judicially in the course of arriving at that decision ........ .If, on the other hand, an administrative body in arriving at its decision has before it at no stage any form of /is and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any time to act judicially\"\n\nThese are innumerable decisions of this Court where it issued a\n\nwrit of certiorari to quash a quasi-judicial act of an administrative tribunal or authority. This Court set aside the order of the Andhra H Pradesh State Government approving the order of nationalisation of road transport made by the Andhra Pradesh Road Transport Undertaking in Gul/apal/i Nn!!eswara Rao v. Andhra Pradesh State\n\nRoad Transport Corporation('), the order of the Examination\n\n(') [19S9] Supp. I S.C.R. 319.\n\nDWARKANATH v. I. T. o. (Subba Ra-0, J.) 543\n\nCommittee cal).celling the examination results on the ground that it did not give opportunity to the examinees to be heard beforei the order was 'made in Board of High School and Intermediate Education, U. P .. Allahabad v. Ghanshyam Das Gupta('), and the order of tqe Revenue Board made in a revision petition against the order of the Deputy Commissioner impounding the document ·.vithout hearing the aggrieved party in The Board of Revenue, U.P.\n\nv. Sardarni Vidyawati('). In all these cases the Government, the Examination Committee and the Board of Revenue were administrative bodies, but the acts impugned were quasi-judicial ones, for they had a duty to act judicially in regard thereto. The law on the subject may be briefly stated thus: The provisions of a statute-may enjoin on an administrative authority to act administratively or judicially. If the statute expressly imposes a duty on the administrative body to act judicially, it is a clear case of a judicial act.\n\nBut the duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred or the duty imposed on the authority and other indicia afforded by the statute. In short, a duty to act judicially may arise in widely different circumstances and it is not possible or advisable to lay down a hard and fast rule or an inflexible rule of guidance.\n\nWith this background let us look at the relevant provisions of the Income-tax Act.\n\nSection 33A(2). The Commissioner may, on application by an assessee for revision of an order under this Act passed by any authority subordinate to the Commissioner, made within one year from the date of the order (or within such further period as the Commissioner may think fit to allow on being satisfied that the assessee was prevented by sufficient cause from making the application within that period), call for the record of the proceeding in which such order was passed, and on receipt of the record may make such inquiry or cause such inquiry to be made, and, subject to the prnvisions of this Act, pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit.\n\nProvided that the Commissioner shall not revise any order under this sub-section if-\n\n(a) where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal but has not been made, the time within which such appeal may be made has not expired,\n\n(t) [196.:!] Slipp. 3 S.C.R. 36. (') [1962] Supp. 3 S.C.R. 50\n\nIUPHlflC COUAT a•POllTS\n\n(1966] 3 S.C, R.\n\nor, in the case of an appeal to the Appellate Trihunal, the asseasec has not waived his right of appeal, or\n\n(b) where an appeal a11ainst the order has been made to the Appellate Assistant Commissioner, the appeal is pending before the Appellate Assistant Commissioner, or\n\n(c) the order has been made the subject of an appeal to the Appellate Tribunal.\n\nProvided further that an order by the Commissioner declining to interfere shall be deemed not to be an order prejudicial to the assessee.\n\nUnder this sub-section an as.sessee may apply to the Commissioner for revision of an order under the Act by an authority subordinate to him. Such application shall be filed within one year from the date of the order or within such further period as the Comml-l sioner may think fit to allow. On receipt of such an application the Commissioner may call for the record of the proceeding in which such order was made and make such enquiry or cause such enquiry to be made. After such enquiry he can make an order not to the prejudice of the assessee but to his benefit. Such revision is not maintainable if the time prescribed for an appeal against such an order to the appropriate authorities has not expired or if an appeal against such an order is pending before the appropriate authorities. The scope of the revision is, therefore, similar to that prescribed under different statutes. Prima facie the jurisdiction conferred under s. 33A(2) of the Act is a judicial one. The order that is brought before the Commissioner affects the right of the assessee.\n\nIt is implicit in revisional jurisdiction that the revising authority shall give an opportunity to the parties affected to put forward their case in the manner prescribed. The nature of the jurisdiction and the rights decided carry with them neces.sarily the dutv to act judicially in disposing of the revision. The fact that the Commissioner cannot make an order to the prejudice of an assessee docs not possibly .change the character of the proceeding. Though the Commissioner may not change the order of the inferior authority to the prejudice of the assessee. he may not give the full relief asked for by the asses.see.\n\nBut it is said that the Commissioner exercising jurisdiction under s. 33A of the Act is only functioning as an administrative authority and all his orders made thereunder partake that character.\n\nReliance is placed 0<1 the decision of the Judicial Committee in Co111111issioner of /11co111e-ta.x, Puniab. N.W.F. & Dd!ri Provinces.\n\nLahore v. Tribune Trmt. Lahore('). There, the Judicial Committee held that the assessments. which were duly made hv the Income-tax\n\nfl} (10..i) L.H. 7-1. l.A. :Jn6, 317, 31S.\n\nllWARK\"NATH 1'. I. T. o. (Subba Rao, J.) 5411\n\nOfficer in the proper exercise of his duty, were not a nullity, bu~ were validly made and were effective until they were set aside; and that a reference to the High Court did not lie from an order. under s. 33 of the Act unless that order was prejudicial to the asscssee in the sense that he was in a worse position than before the order was made. But the Board incidentally made the following observations:\n\n\"On the contrary, s. 33 follows a number of sections which determine the rights of the assessee and is itself, as its language clearly indicates, intended to provide administrative machinery by which a higher executive officer may review the acts of his subordinates and take the necessary action on such review. It appears that, as a matter of convenience, a practice has grown up under which the commissioner has been invited to act \"of his own motion\", under the section. and where this occurs a certain degree of formality has been adopted. But the language of the section does not support the contention, which lies at the ro0t of the third question and is vital to the respondent's case, that it affords a claim to relief\".\n\nContinuing the same idea that Board observed;\n\n\"The Comn1issioner may act under s. 33 with or without invitation of the asscssee: if he does so without invitation, it is clear that, if he does nothing to worsen the position of the assessee, the latter can acquire no right: the review may be a purely departmental matter of which the assessee knows nothing. If, on the other hand, the commissioner acts at the invitation of the assessee and again does nothing to worsen his position, there is no justification for giving him a new right of appeal\".\n\nThese observations were made in the context of a question hether a reference would lie to the High Court against an order of the Commissioner. But the question whether the order of the Commissioner under s. 33 of the Act was a judicial or a quasi-judicial act subject to the prerogative writ of certiorari was neither raised nor decided in that case: that question was not germane to the enquiry before the Board, for the appeal did not arise out of any order made in a writ of certiorari. Section 33, which was considered by the Privy Council was repealed by the Amending Act of 1939i but by Act XXIII of 1941 the revisional powers of the Commissioner were restored. Section 33-A took the place of s. 33 with certain modifications. Sub-section (!) of s. 33A provided for the Commissioner acting suo motu; and sub-s. (2) thereof. on the application of the assessee. Under this section the Commissioner can exercise the revisional jurisdiction subject to the conditiolllJ mentioned therein. While s. 33 only provided for the suo motu exercise of the jurisdiction, s. 33A enables an assessee to apply to the Commissioner to revise the order of his subordinate oflicer.\n\nSGPRE'.'iF. COURT R>:PORTS [IUG5] 3 s.t:.11.\n\nSome of the High Court>, under the impression that the Privy Council held that the act of the Commissioner was an administrative one, ruled that a writ of certiorari would not lie to quash the order of the Commissioner un:lcr s. 33A of the Act: sc~ Sitalpore Colliery Concern Ltd. v. Union of India('); Additional Income-tax Officer, Cuddapah v. Cuddapah Star Transport Ca.\n\nLtd.('); and Suganchand Saraogi v. Commissioner of Income-tax, Ca/cul/a('). They did net consider the scope of the revision bef11re the Commissioner and whether the crdcrs made thereunder satisfied the well settled tests of \"judicial act\" laid down by this Court.\n\nIn our view, for the reJsons mentioned by us earlier. the said judgments were decided wrongly.\n\nThat apart, on the assumption that the order of the Commissioner under s. 33-A of the Act was an administrative enc, the respondent would not be in a better position. What the appellant complains is that the Income:tax Officer in terms of s. 29 of the Act is under an obligation to issue a demand notice. If the said contention was correct, he did not discharge the duty imposed on him by the statute. If the Commissioner only made an administrative order in refusing to give any direction to the Income-tax Officer, it would not exonerate the said officer from discharging his statutory duty.\n\nIn that event the asscssec would certainly be entitled t•l approach the High Court under Art. 226 of the Constitution for the issue of a writ of mandam11.1 ,,. other appropriate direction to the Incometax Officer to discharge his statutory duty. We, therefore. reject the preliminary objection of the respondents.\n\nThe High Court mainly dismissed the writ petition on the ground that the affidavit tiled in support of the writ pct; lion was highly unsatisfactory and that on the basis of such an affidavit it was not possible lo entertain the petition. In exercise of 1r.e powers conferred by Art. 225 of the Constitution nJ of other powers enabling it in that behalf the High Court of AlrJhabad framed the Rules of Court. Chapter XXII thereof deals wilh lhe procdurc to be followe:l in respect of a preceding under Art. 226 of the Constitution olher than a writ in the nature of Jwbea' corpu,. The relevant rule is sub-r. (2) of r. I of Ch. XXII, which reads:\n\n\"The applicalion 'hall set out concisely in numbered paragraphs the facls upon which lhe applicant relics an~ the grnunds upon which the Court is asked to issue a direction. order or writ. and shall conclude wilh a prayer stating clearly. so for as circumstances permit. the exact nature of the relief sought. The applicalion shali be accompanied by an affidavit or affidavits in pro:if of the facts referred ro in the application. Such affidavit or affidavi1s shall be restricled to matters which are within the deponenl's own\n\nknowledge\" . . Pl (1957) 32° l..T.R. 2A.\n\n(1) [1\\Jlil~ .JJ LT.H. 7li.\n\n!'I I 1960) 40 !.T.R. 2tl0.\n\n1nr.\\Hl\\.\\:\\.\\'111 I'. I. T. o. (Suhba ll'fo, J.) 547\n\nThe appliation tiled in the High Court certainly complied with the provisions of sub-r. (2) of r. I of Ch. XXII of the Rules of Court of the Allahabad High Court. It set out concisely in numbered paragraphs the facts upon which the applicant relied, the grounds on which the Court was asked to issue the direction and the exact nature of the relief sought. But it is said that the affidavit filed in support of 1he application did not speak to matters which were within the deponent's own knowledge. Dhruva Das, the deponent of the affidavit, is a relative of the petitioner and he also looked after the case on his behalf as his pairokar and was fully conver- £ant with the facts. He solemnly affirmed and swore as follows:\n\n\"I Dhruva Das, aforesaid deponent do hereby solemnly affirm andswear that the contents of paras I, 2, 3 and 50 partly are true to my personal knowledge, that the contents of paras. 4, 5, 6, 7, 8, 9, IO, 11, 12, 13, 14, 15, 16, 20. 21, 25, 27, 29 partly, 31, 32, 34, 37, 38, 41, 42, 44 are based on 46 and 50 partly and paras 17, 18, 19, 22, 23, 24, 26, 28, 29, partly 30, 33, 35, 36, 39, 40, 43, 48 partly are based on perusal of the record, those of paras 47, 48 partly 49 and\n\n50 partly are based on legal advice, which I believe to be true, that no part of this affidavit is false and nothing material has been concealed in it\".\n\nIn paragraphs which are based on a perusal of the record the deponent .referred to the relevant orders of the Income-tax authorities and also to the relevant agreements and the copies of the said orders and agreement were also annexed to the affidavit as schedules. It is not clear from the schedules whether certified copies or\n\nthe original of the orders received by the appellant were filed. The said agreements and the orders afford sufficient basis to appreciate the case of th_e appellant and for disposing of the same. \"Deponent's own knowledge\" in r. 1(2) of Ch. XXII of the Rules is wide enough to comprehend the knowledge of the appellant derived from a perusal of the relevant documents; and the affidavit in express terms disclosed and specified the documents, the source of the appellant's knowledge. He swore in the affidavit that the documents annexed to the affidavit were true copies of public documents. If they are certified copies of public documents, they prove themselves; if they are original of the orders sent to the appellant, the deponent, as his agent, speaks to their receipt. It is, therefore, not correct to say that the facts stated in the affidavit are nqt based on the deponent's knowledge. The. other facts alleged in the affidavit are only intro:luctory in nature and if they are excluded the result will not be affected. That apart, if the affidavit was defective in any manner the Hi2h C0urt. instead of dismissing the petition in limine, should have given the appellant a reasonable Opportunity to file a better\n\naffi:lavit complying with the provisions of r. I of Ch. XXII of the Rules. We cannot, therefore, agree with the High Court that the petition was liable to be dismissed in limine in view of the alleged defects in the affidavit.\n\n548 Sl:l'RE!>!E cotRT REPORTS\n\n[1965) 3 S.C.R\n\nNor can we agree with the High Court that the facts given in the al!idavit are incomplete and confused. On the other hand. a careful perusal of the affidavit, along with the documents annexed thereto, discloses clearly the appcllant\"s case: it gives the neces sary facts and the reliefs sought for. We do not find any missing link in the narrative of facts or any confusion in the nature of the reliefs asked for.\n\nWe cannot also agree with the High Court that the decision of the Bombay High Court in Baiinath Chat11rbl1u; v. Commis sinner of lncometax, /Jombav City l/('I was given on diiTernt fact' and that it ws impossible to contend that any part of the money paid by Messrs. Chaturam & Sons was really compenstion for the mana2i11g agency rights. 1 he Bmbay decision was given in the conte't of the dispute between. the Bombay Group and the Incometax authorities and was b<1scJ upon the consideration of the very documents which are the basis of the appellant\\ tlaim.\n\nWe do not propo., e to express any opirnon on the correctness or otherwise of that decision. But. the fact that a Division Dench of one of the High Courts in India had taken the view in favoar of the appellant indicates that the question raised is. in our view. an arguable one and it requires serious consideration.\n\nWe are satisfied that this is not a case where the High Court should have dismissed the writ petition in limine. We find in the decree issued by the High Court that Sri Gopal Debari appeared on behalf of the opposite parties; presumably he appeared as the appellant must have issued notice in terms of r. 1(4) of Ch. XXII of the Rules. Ile th•t as it may, the High Court did not finally decide two important questions that really arose for consideration before it, namely: (i) whether a revision lay to the Commissioner under s. 33-A(2) of the Act against the order or the Income-tax Officer; and (ii) whether the Income-tax Officer should have issued a demand under s. 29 of the Act. If a revision lay to the Commissioner, the Commissioner should have considered the second ques tion before dismissing it. Therefore, the question is whether a revision lay to the Commissioner under s. 33-A(2) of the Act. A revision does not lie to the Commissioner against an IJrder where an appeal against that order lies to the Appellate Assistant Commissioner but has not been made and the time within which such an appeal may be made has not expired or where an appeal against the order has been made, it is pending before him. It follows that if no appeal lie. against the order an officer to the Appellate As, istant\n\nCommissioner, the Commissioner can revise that order under s. 33-A of the Act. In the present case, pursuant to the directions of the Tribunal, Delhi Bench, the Income-tax Officer determined the auessec'1 capital gains under s. 12-B of the Act; but the Incomc- •x Officer did not make any order under s. 23(3) of the Act. nor\n\n(') (1957) 11 !.T.R. Ma.\n\nDWARJ:ANATH v. r. T. o. (Subba Rao, J.) 549\n\ndid he issue a regular notice of demand as prescribed under s. 29 of the Act. The result was, no appeal lay against the computation made by the Income-tax Officer to the Appellate Assistant Commissioner. Indeed, on March 8, 1957, the Appellate Assistant Commissioner rejected the appeal filed by the appellant as being not maintainable. As no appeal lay to the Appellate Assistant Commissioner against the calculations made by the Income-tax Officer, the Commissioner had certainly power to revise the said order.\n\nOn March 5, 1956, the appellant filed an application requesting the Income-tax Officer to issue a notice of demand as required by s. 29 of the Act. But the said Officer declined to issue the notice of demand. The question is whether he was bound to issue a notice of demand under s. 29 of the Act. Section 29 of the Act reads: ... \"When any tax, penalty or interest is due in consequence of any order passed under or in pursuance of this Act, the Income-tax Officer shall serve upon the assessee or other person liable to pay such tax, penalty or interest a notice of demand in the prescribed form specifying the sum so payable''.\n\nUnder this section, if a tax is due in consequence of an order from an assessee, the Income-tax Officer is under a duty to serve on him a notice of demand. Pursuant to the directions given by the Tribunal the Income-tax Officer made fresh calculations under the head 'capital gains' and ascertained the amount due from the assessee. In the circumstances, pursuant to the said calculation, he should have passed an order and issued a notice of demand to the assessee. In not doing so, it must be held that the Income-tax Officer did not discharge his duty which he was bound to do under the Act; with the result he had become amenable to a writ of mandamus directing him to do what he should have done under the Act.\n\nIn the result, the order of the High Court is set aside and we issue a writ of certiorari quashing the order of the Commissioner and a writ of mandamus directing the Income-tax Officer to pass an order and issue a notice in accordance with law. 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("}}, {"text": "Baiinath", "label": "OTHER_PERSON", "start_char": 839, "end_char": 847, "source": "ner", "metadata": {"in_sentence": "of the Act, for rev:s1ng the computation made by the Income-tax Officer drav.<ng his zttcntton to a der•s10n of the Bombay High Court in Baiinath s case. ("}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 2303, "end_char": 2311, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33A(2)", "label": "PROVISION", "start_char": 2514, "end_char": 2523, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 2857, "end_char": 2862, "source": "ner", "metadata": {"in_sentence": "Further, the fact that a D1v1sion Bench of one of the High Courts in India had taken a view in favour or the assessee, indicated that the question raised v.as arguable.and required serious consideration."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 3651, "end_char": 3659, "source": "regex", "metadata": {"statute": null}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 4776, "end_char": 4796, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment' and decree dated July 28, 1959 of the Allahabad High Court in Civil Miscellaneous Writ No."}}, {"text": "A. V. Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 4844, "end_char": 4867, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, Ramesh war Nath, S. N. A nd/ey and P. L. Vohra."}}, {"text": "Ramesh war Nath", "label": "LAWYER", "start_char": 4869, "end_char": 4884, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, Ramesh war Nath, S. N. A nd/ey and P. L. Vohra."}}, {"text": "S. N. A", "label": "OTHER_PERSON", "start_char": 4886, "end_char": 4893, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, Ramesh war Nath, S. N. A nd/ey and P. L. Vohra."}}, {"text": "P. L. Vohra", "label": "OTHER_PERSON", "start_char": 4904, "end_char": 4915, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, Ramesh war Nath, S. N. A nd/ey and P. L. Vohra."}}, {"text": "Gopa/ Singh", "label": "LAWYER", "start_char": 4937, "end_char": 4948, "source": "ner", "metadata": {"in_sentence": "Gopa/ Singh and R. N. Sachthey, for the respondents.", "canonical_name": "Gopa/ Singh"}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4953, "end_char": 4967, "source": "ner", "metadata": {"in_sentence": "Gopa/ Singh and R. N. Sachthey, for the respondents."}}, {"text": "Sobba Rao", "label": "JUDGE", "start_char": 5034, "end_char": 5043, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sobba Rao, J. The facts leading up to this appeal may briefly be narrated.", "canonical_name": "Sobba Rao"}}, {"text": "Gujarat Collon Mills Co. Ltd.", "label": "PETITIONER", "start_char": 5109, "end_char": 5138, "source": "ner", "metadata": {"in_sentence": "Gujarat Collon Mills Co. Ltd., hereinafter called the Company."}}, {"text": "Ahmedabad", "label": "GPE", "start_char": 5225, "end_char": 5234, "source": "ner", "metadata": {"in_sentence": "is a limited company having its registered office at Ahmedabad."}}, {"text": "Pira Mal Girdhar Lal", "label": "OTHER_PERSON", "start_char": 5284, "end_char": 5304, "source": "ner", "metadata": {"in_sentence": "In the year l 938 the Company appointed Messrs. Pira Mal Girdhar Lal & ( o .. hereinafter called the Agency Firm, as its Managing Agents."}}, {"text": "February 28, 1938", "label": "DATE", "start_char": 5377, "end_char": 5394, "source": "ner", "metadata": {"in_sentence": "On February 28, 1938, a formal agreement was entered into between the Companv and the Agency Firm."}}, {"text": "Februorv 26. 1938", "label": "DATE", "start_char": 5548, "end_char": 5565, "source": "ner", "metadata": {"in_sentence": "The said Agency Firm was formed under an instrument of partner ship dated Februorv 26."}}, {"text": "Kanpur Group Bombay Group", "label": "ORG", "start_char": 5943, "end_char": 5968, "source": "ner", "metadata": {"in_sentence": "of the partners of the Agency firm in the Company was as follows: Kanpur Group Bombay Group\n\n32.500 shares."}}, {"text": "September 7, 1946", "label": "DATE", "start_char": 6190, "end_char": 6207, "source": "ner", "metadata": {"in_sentence": "On September 7, 1946, the said 11 partners etered into an agreement with the firm of Messrs. Chhuttu Ram & Sons of Bihar, hereinafter called the Purchaser Firm."}}, {"text": "November 15. 1946", "label": "DATE", "start_char": 6581, "end_char": 6598, "source": "ner", "metadata": {"in_sentence": "65 per share and that the Agency Firm should before November 15."}}, {"text": "October 30, 1946", "label": "DATE", "start_char": 6823, "end_char": 6839, "source": "ner", "metadata": {"in_sentence": "On October 30, 1946, the Company 'lleld its General Body Meeting and accepted the resignation of the Agency Firm and by another resolution appointed the Purchaser Fi'rm as the Managing Agents in its stead."}}, {"text": "Dwarkanath", "label": "OTHER_PERSON", "start_char": 7222, "end_char": 7232, "source": "ner", "metadata": {"in_sentence": "Its karta was one Dwarkanath and the present karta is his son Ramji Prasad."}}, {"text": "Ramji Prasad", "label": "OTHER_PERSON", "start_char": 7266, "end_char": 7278, "source": "ner", "metadata": {"in_sentence": "Its karta was one Dwarkanath and the present karta is his son Ramji Prasad."}}, {"text": "Kanpur Group", "label": "ORG", "start_char": 7359, "end_char": 7371, "source": "ner", "metadata": {"in_sentence": "The said family was one of the 11 partners of the Agency Firm belonging to the Kanpur Group."}}, {"text": "June 5. 1952", "label": "DATE", "start_char": 7610, "end_char": 7622, "source": "ner", "metadata": {"in_sentence": "It was assessed to income-tax for the year 1948-49 and the Income-tax Officer by his order dated June 5."}}, {"text": "Income-tax Appellate Tribunal. Delhi Bench", "label": "COURT", "start_char": 7938, "end_char": 7980, "source": "ner", "metadata": {"in_sentence": "the Income-tax Appellate Tribunal."}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 8051, "end_char": 8057, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 8066, "end_char": 8086, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 35", "label": "PROVISION", "start_char": 8217, "end_char": 8222, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 8230, "end_char": 8244, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "March 26, 1954", "label": "DATE", "start_char": 8321, "end_char": 8335, "source": "ner", "metadata": {"in_sentence": "by its order dated March 26, 1954."}}, {"text": "August 3. 1953", "label": "DATE", "start_char": 8369, "end_char": 8383, "source": "ner", "metadata": {"in_sentence": "amended its previous Nder dated August 3."}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 8614, "end_char": 8620, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 29", "label": "PROVISION", "start_char": 9136, "end_char": 9141, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 9421, "end_char": 9426, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 9434, "end_char": 9448, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 30", "label": "PROVISION", "start_char": 9689, "end_char": 9694, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 9702, "end_char": 9716, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "March 8, 1957", "label": "DATE", "start_char": 9743, "end_char": 9756, "source": "ner", "metadata": {"in_sentence": "The assessee preferred an appeal against that order to the Appellate Assistant Commissioner under s. 30 of the Income-tax Act and that was dismissed on March 8, 1957; on the ground that it was not maintainable."}}, {"text": "September 27, 1956", "label": "DATE", "start_char": 9815, "end_char": 9833, "source": "ner", "metadata": {"in_sentence": "Meanwhile on September 27, 1956, the appellant filed an aoolication before the Commissioner of Income-tax under s. 33A(2) of the Income-tax Act for revising the order of the Income-tax Officer dated September 28, 1955."}}, {"text": "s. 33A(2)", "label": "PROVISION", "start_char": 9914, "end_char": 9923, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 9931, "end_char": 9945, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "September 28, 1955", "label": "DATE", "start_char": 10001, "end_char": 10019, "source": "ner", "metadata": {"in_sentence": "Meanwhile on September 27, 1956, the appellant filed an aoolication before the Commissioner of Income-tax under s. 33A(2) of the Income-tax Act for revising the order of the Income-tax Officer dated September 28, 1955."}}, {"text": "March 28. 1959", "label": "DATE", "start_char": 10024, "end_char": 10038, "source": "ner", "metadata": {"in_sentence": "On March 28."}}, {"text": "s. 33A", "label": "PROVISION", "start_char": 10176, "end_char": 10182, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 10190, "end_char": 10204, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "November 18, 1957", "label": "DATE", "start_char": 10468, "end_char": 10485, "source": "ner", "metadata": {"in_sentence": "On November 18, 1957, the attention of the Commissioner was also dra\"m to the fact that the Bombay High Court in the case of a reference to that Court at the instance of the Bombay Group held that the market value of the shares should be taken into consideration to ascertain the excess realized on the sale of the shares of the assessee for the purpose of capital gains tax."}}, {"text": "Bombay Group", "label": "ORG", "start_char": 10639, "end_char": 10651, "source": "ner", "metadata": {"in_sentence": "On November 18, 1957, the attention of the Commissioner was also dra\"m to the fact that the Bombay High Court in the case of a reference to that Court at the instance of the Bombay Group held that the market value of the shares should be taken into consideration to ascertain the excess realized on the sale of the shares of the assessee for the purpose of capital gains tax."}}, {"text": "July 28. 1959", "label": "DATE", "start_char": 10924, "end_char": 10937, "source": "ner", "metadata": {"in_sentence": "Thereafter, on July 28."}}, {"text": "High Court of Judicature at Allahabad", "label": "COURT", "start_char": 10999, "end_char": 11036, "source": "ner", "metadata": {"in_sentence": "2071 of 1959 in the High Court of Judicature at Allahabad, inter alia, for a writ of certiorari or any other direction or order of like nature to quash the order of the Income-tax Commissioner, Lucknow, dated March 28."}}, {"text": "Lucknow", "label": "GPE", "start_char": 11173, "end_char": 11180, "source": "ner", "metadata": {"in_sentence": "2071 of 1959 in the High Court of Judicature at Allahabad, inter alia, for a writ of certiorari or any other direction or order of like nature to quash the order of the Income-tax Commissioner, Lucknow, dated March 28."}}, {"text": "s. 29", "label": "PROVISION", "start_char": 11579, "end_char": 11584, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 11592, "end_char": 11606, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 33A", "label": "PROVISION", "start_char": 12495, "end_char": 12501, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 12797, "end_char": 12802, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 12810, "end_char": 12824, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bombav", "label": "OTHER_PERSON", "start_char": 12914, "end_char": 12920, "source": "ner", "metadata": {"in_sentence": "He further contended that the High c,, urt wer.t wrong in holding that the facts in the Bombav decision were different from those in the present case, for the facts in both the cases were the same and in fact they arose out of the same transaction."}}, {"text": "Gopal Singh", "label": "LAWYER", "start_char": 13154, "end_char": 13165, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nGopal Singh, learned counsel for the Revenue, while supporting the order of the High Court raised a preliminary objection.", "canonical_name": "Gopa/ Singh"}}, {"text": "s. 33A", "label": "PROVISION", "start_char": 13326, "end_char": 13332, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 13470, "end_char": 13478, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 226", "label": "PROVISION", "start_char": 13619, "end_char": 13630, "source": "regex", "metadata": {"statute": null}}, {"text": "Enland", "label": "GPE", "start_char": 14528, "end_char": 14534, "source": "ner", "metadata": {"in_sentence": "it can iS<Ue writ' in the ntt; re of prero.gativc writs as under: stood in Enland; hut the scope of those writs also is widened hv the use of the expression \"nature\"'."}}, {"text": "England", "label": "GPE", "start_char": 14714, "end_char": 14721, "source": "ner", "metadata": {"in_sentence": "for the said exnression docs no\"t equate the writs that can be issued in India with those in England."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 15048, "end_char": 15056, "source": "regex", "metadata": {"statute": null}}, {"text": "Atkin", "label": "JUDGE", "start_char": 16226, "end_char": 16231, "source": "ner", "metadata": {"in_sentence": "The relevant criteria have been laid down witk clarity by Atkin, L.J., in King v.\n\nElectricity Commissioners('), elaborated by Lord Justice Scrutton in ]?"}}, {"text": "Scrutton", "label": "JUDGE", "start_char": 16308, "end_char": 16316, "source": "ner", "metadata": {"in_sentence": "The relevant criteria have been laid down witk clarity by Atkin, L.J., in King v.\n\nElectricity Commissioners('), elaborated by Lord Justice Scrutton in ]?"}}, {"text": "Parker", "label": "JUDGE", "start_char": 17399, "end_char": 17405, "source": "ner", "metadata": {"in_sentence": "Parker, J .. in R. V. Manchester Legal Aid Committee(') brought out the distinction between judicial and administrative acts very vividly in the following passage:\n\n\"The true view."}}, {"text": "[1962] 2 S.C.R. 169", "label": "CASE_CITATION", "start_char": 18106, "end_char": 18125, "source": "regex", "metadata": {}}, {"text": "Andhra H Pradesh State Government", "label": "ORG", "start_char": 20581, "end_char": 20614, "source": "ner", "metadata": {"in_sentence": "This Court set aside the order of the Andhra H Pradesh State Government approving the order of nationalisation of road transport made by the Andhra Pradesh Road Transport Undertaking in Gul/apal/i Nn!!eswara Rao v. Andhra Pradesh State\n\nRoad Transport Corporation('), the order of the Examination\n\n(') [19S9] Supp."}}, {"text": "With this background let us look at the relevant provisions of the Income-tax Act", "label": "STATUTE", "start_char": 22495, "end_char": 22576, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 33A(2)", "label": "PROVISION", "start_char": 22579, "end_char": 22593, "source": "regex", "metadata": {"linked_statute_text": "With this background let us look at the relevant provisions of the Income-tax Act", "statute": "With this background let us look at the relevant provisions of the Income-tax Act"}}, {"text": "Trihunal", "label": "PETITIONER", "start_char": 23714, "end_char": 23722, "source": "ner", "metadata": {"in_sentence": "3 S.C.R. 50\n\nIUPHlflC COUAT a•POllTS\n\n(1966] 3 S.C, R.\n\nor, in the case of an appeal to the Appellate Trihunal, the asseasec has not waived his right of appeal, or\n\n(b) where an appeal a11ainst the order has been made to the Appellate Assistant Commissioner, the appeal is pending before the Appellate Assistant Commissioner, or\n\n(c) the order has been made the subject of an appeal to the Appellate Tribunal."}}, {"text": "s. 33A(2)", "label": "PROVISION", "start_char": 25093, "end_char": 25102, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33A", "label": "PROVISION", "start_char": 25911, "end_char": 25917, "source": "regex", "metadata": {"statute": null}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 26378, "end_char": 26387, "source": "ner", "metadata": {"in_sentence": "I. T. o. (Subba Rao, J.) 5411\n\nOfficer in the proper exercise of his duty, were not a nullity, bu~ were validly made and were effective until they were set aside; and that a reference to the High Court did not lie from an order.", "canonical_name": "Sobba Rao"}}, {"text": "s. 33", "label": "PROVISION", "start_char": 26603, "end_char": 26608, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 26826, "end_char": 26831, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 27619, "end_char": 27624, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 28293, "end_char": 28298, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33", "label": "PROVISION", "start_char": 28579, "end_char": 28589, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33", "label": "PROVISION", "start_char": 28757, "end_char": 28767, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 28788, "end_char": 28793, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33A", "label": "PROVISION", "start_char": 28841, "end_char": 28847, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 29085, "end_char": 29090, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33A", "label": "PROVISION", "start_char": 29152, "end_char": 29158, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33A", "label": "PROVISION", "start_char": 29529, "end_char": 29535, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 30110, "end_char": 30115, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 30278, "end_char": 30283, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 30723, "end_char": 30731, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 225", "label": "PROVISION", "start_char": 31227, "end_char": 31235, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of AlrJhabad", "label": "COURT", "start_char": 31306, "end_char": 31329, "source": "ner", "metadata": {"in_sentence": "225 of the Constitution nJ of other powers enabling it in that behalf the High Court of AlrJhabad framed the Rules of Court."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 31450, "end_char": 31458, "source": "regex", "metadata": {"statute": null}}, {"text": "Suhba ll'fo", "label": "JUDGE", "start_char": 32258, "end_char": 32269, "source": "ner", "metadata": {"in_sentence": "I. T. o. (Suhba ll'fo, J.) 547\n\nThe appliation tiled in the High Court certainly complied with the provisions of sub-r. (2) of r. I of Ch."}}, {"text": "Dhruva Das", "label": "OTHER_PERSON", "start_char": 32780, "end_char": 32790, "source": "ner", "metadata": {"in_sentence": "Dhruva Das, the deponent of the affidavit, is a relative of the petitioner and he also looked after the case on his behalf as his pairokar and was fully conver- £ant with the facts."}}, {"text": "Baiinath Chat11rbl1u", "label": "OTHER_PERSON", "start_char": 35968, "end_char": 35988, "source": "ner", "metadata": {"in_sentence": "We cannot also agree with the High Court that the decision of the Bombay High Court in Baiinath Chat11rbl1u; v. Commis sinner of lncometax, /Jombav City l/('I was given on diiTernt fact' and that it ws impossible to contend that any part of the money paid by Messrs. Chaturam & Sons was really compenstion for the mana2i11g agency rights."}}, {"text": "Chaturam & Sons", "label": "ORG", "start_char": 36148, "end_char": 36163, "source": "ner", "metadata": {"in_sentence": "We cannot also agree with the High Court that the decision of the Bombay High Court in Baiinath Chat11rbl1u; v. Commis sinner of lncometax, /Jombav City l/('I was given on diiTernt fact' and that it ws impossible to contend that any part of the money paid by Messrs. Chaturam & Sons was really compenstion for the mana2i11g agency rights."}}, {"text": "Gopal Debari", "label": "OTHER_PERSON", "start_char": 36929, "end_char": 36941, "source": "ner", "metadata": {"in_sentence": "We find in the decree issued by the High Court that Sri Gopal Debari appeared on behalf of the opposite parties; presumably he appeared as the appellant must have issued notice in terms of r. 1(4) of Ch."}}, {"text": "s. 33", "label": "PROVISION", "start_char": 37286, "end_char": 37291, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 37427, "end_char": 37432, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 37643, "end_char": 37648, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 38128, "end_char": 38133, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 38294, "end_char": 38299, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23(3)", "label": "PROVISION", "start_char": 38370, "end_char": 38378, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 38527, "end_char": 38532, "source": "regex", "metadata": {"statute": null}}, {"text": "5, 1956", "label": "DATE", "start_char": 38991, "end_char": 38998, "source": "ner", "metadata": {"in_sentence": "On March 5, 1956, the appellant filed an application requesting the Income-tax Officer to issue a notice of demand as required by s. 29 of the Act."}}, {"text": "s. 29", "label": "PROVISION", "start_char": 39112, "end_char": 39117, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 39262, "end_char": 39267, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 29", "label": "PROVISION", "start_char": 39280, "end_char": 39290, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_53_62_EN", "year": 1965, "text": "BRUrijl)ABAN NAYAK\n\nELECTION COMMISSION OF INDIA AND ANOTHER February 12, 1965\n\nIP. B. GAJENDRAGADKAR, C. J., M. HIDAYATULLAH, RAGHUBAll\n\nDAYAL, S. M. SIKRI AND V. RAMASWAMI, JJ.J Constitution of India, Art. 192(1) and (2)1-Who can raise question B as to disqu.aLification of sitting member-Whether question has to be raised on floor of the Assembly and referred to the Governor by Speaker-Enquiry to be held by Governor or Election Commission?\n\nThe appellant was elected •to the Orissa Legislative Assembly in 1961. In 1964 respondent No. 2 made a complaint to the Governor alleging that the appellant had incurred a disqualification subsequent to his election as contemplated in Art. 191(1) (e) of the Constitu- C tion read with s. 7 of the Representation of the People Act (Act 43 of 1951). The Chief Secretary Orissa forwarded the said complaint •to respondent No. 1, the Election Commission of India, under the instructions of the .Governor, requesting it to make enquiry into the complaint and give its opinion. Accordingly respondent No. 1 served notice on the appellant and called upon him to submVt his reply. The appellant challenged the jurisdiction of D resporu:l!ent No. 1 to conduct the enquiry and filed a writ petition in the High Court. On its being dismissed he appealed to this Court by special leave.\n\nIt was contended on behalf of the appellant that no question untler Art. 192(1) had arisen in the case as a question relating to the disqualification of a member under Art. 191(1) (e) could not be raised by an ordinary citizen. It was urged that considering the E context of Art. 192 and the provisions of Art. 199 the question could only be raised on the floor of the House and thereafter referred to the Governor by the Speaker of the Assembly. It was further con tended that only the Governor who had to give the decision could hold the enquiry, and the Election Commission was only to give its opi.n'on on the materials forwarded to it by the Governor.\n\nF HEl; D: (i) The argument that no question had arisen under Art. 192(1) could not be accepted. What Art 192(1) requires is that a question should anise; how ft arises, by whom it is raised, in what circumstances it is ra'sed are not relevant for the purpose of the application of this clause. f59 Hl The wortls in Art. 192(1) that \"the question shall loe referred for the decision of the Governor\" merely emnhasise that any ques- G tion of the type contemplated in the said clause shall be decided by the Governor and Governor alone: no other authority, including the courts, can decide it. If the intention was that the question must be raised first in the legislative Assembly and after a prima facie examination by the Speaker it should be referred by him to the Governor, Art. 192(1) would have been worded in an entirely different manner. f59 B-Cl H The object of Art 192 is that no member wh\\> has incurred a disqualification under Art. 191 (1) should be allowed •to con1Jinue as a member. The Constitution itself in /\\rt 190(3) provides for the vacation of the seat of such a member. Further it is in the interests of the member's constituency that no loµger being en titled to the status of a m\"mber, he should be removed. In view\n\nof these considerations a citizen is certainly entitled to make a complaint to the Governor about the <lisqualification incurred by a member under Art. 191(1). f59 E-Gl\n\n(ii) The enquiry for the purpose of the decision under Art. 192 has to be held by the Election Commission and not by the Governor. When the Governor pronounces his decision under Art. 192(1) he is not require<l to consult his Council of Ministers; he has merely to forward 'the question to the Election Commission for its opinion, and as soon as the opinion is received, \"he shall act according to such opinion\". It is the opinion of the Election Commission which is in substance decisive, and it is legitimate that the Commission should proceed to try the complaint before it gives its opinion. f60 D-Hl [Legislation to vest Election Commlssion with powers of. a Commission under the Commissions of Enquiry Act, 1952, recommended. l f62 Bl\n\nCIVIL APPELLATE )JuRISDIOTION: Ci; vil Appeal No. 50 of 1965.\n\nAppeal by special leave from the order dated January 6. 1965 of the Circuit Bench of the Punjab High Court at Delhi in Civil Writ No. 8-D of 1965.\n\nM. C. Setalvad, Ravinder Narain, J. B. Dadachanji and\n\n0. C. Mathur, for the appellant.\n\nC. K. Daphtary, Attorney-General, S. V. Gupte, Solicitor- General, B .. R. L. Iyengar and R. H. Dhebar, for the respondent No. !.\n\nSantosh Chatterjee, B. B, Ratho and M. L. Chhibber, for respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nGajendragadkar, C.J. The principal question which this appeal F by special leave raises for our decision relates to the construction of Article 192 of the Constitution. The said question arises in this way. The appellant Brundaban Nayak was eledted to the Legislative Assembly of Orissa from the Hinjili Constituency in Ganjam district in 1961, and was appointed one of the Ministers of the Council of Ministers in the said State. On August 18, 1964, G respondent No. 2, P. Biswal, applied to the Governor of Orissa alleging that the appellant had incurred a disqualification subsequent to his election under Art. 19l(l)(e) of the Constitution read with section 7 of the Representation of the People Act, 1951 (No. 43 of 1951) (hereinafter called the Act). In his application, respondent No. 2 made several allegations in support of his con- H tention that the appellant had become disqualified to be a member of the Orissa Legislative Assembly. On September 10, 1964, the Chief Secretary to the Government of Orissa forwarded the said complaint. to respondent No. I, the Election Commission of• India, under the instructions of the Governor. In this communication, the Chief Secretary stated thl!t a question had arisen under Article I 9 I (I) of the Constitution whether the member in\n\nBRUNDABAN v. ELECTION COMMISSION (Gajendragq.dkar, 0.J.) 55\n\nA question had been subject to the disqualification alleged by respondent No. 2 and so, he requested respondent No. l in the name of the Governor to make suoh enquiries as it thinks fit and give its opinion for communication to the Governor to enable him to give a decision on the question raised.\n\nB On November 17, 1964, respondent No. 1 served a notice on. the appellant forwarding to him a copy of the letter received by it from respondent No. 2 dated the 4th November, 1964. Thenotice intimated to the appellant that respondent No. l proposed to enquire in the matter before giving its opinion on the Governor's.\n\nc reference, and, therefore, called upon him to submit on or before the 5th December, 1964, his reply with supporting affidavits and documents, if any. The appellant was also told that the parties;\n\nwould be heard in person or through authorised counsel at 10-30 A.M. on the 8th December, 1964, in the office of respondent No. I in New Delhi.\n\nOn December l, 1964, the appellant sent a telegram to respondent No. 1 requesting it to adjourn the hearing of the matter.\n\nOn the same day, he also addressed a registered letter to respondent No. l making the same request. Respondent No. 2 objected to the request made by the appellant for adjourning the hearing of the complaint. On December 8, 1964. respondent No. l took up this matter for consideration: Respondent No. 2 appeared by his counsel Mr. Chatterjee, but the appellant was absent. Respondent No. 1 took the view that an enquiry of the nature contemplated by Art. 192(2) must be conducted as expedtiously as possible, and so, it was necessary that whatever his other commitments may be, the appellant should arrange to submit at least his statement in repliy to the allegations made by respondent No. 2, even if he required some more time for filing affidavits and I or documents in support of his statement. Even so, respondent No. 1 gave the appellant time until the 2nd January, 1965, 10-30 A.M. when it ordered that the matter would be heard.\n\nOn January 2, 1965, the appellant appeared by his counsel Mr. Patnaik and respondent No. 2 by his counsel Mr. Chatterjee.\n\nOn this occasion, Mr. Patnaik raised the question about the maintainability of the proceedings before respondent No. 1 and its competence to hold the enquiry. Mr. Chatterjee repelled Mr.\n\nPatnaik's contention. Respondent No. 1 over-ruled Mr. Patnail-'s contention and recorded its conclusion that it was competent to hold the enquiry under Art. 192(2). Mr. Patnaik then asked for adjournment and made it clear that he was making the motion for adjournment without submitting to the jurisdiction of respondent No. I. In view of\" the attitude adopted bv Mr. Patnaik, respondent No. 1 took the view that it would be pointless to adjourn the proceedings. and so, it heard Mr. Chatterjee in support of the case of respondent No. 2. After hearing Mr. Chatterjee respondent No. I reserved its orders on the enquiry and noted that its\n\nopinion would be communicated to the Governor as early as A possible.\n\nWhen matters had reached this stage before respondent No. 1, the appellant. moved the Punjab High Court under Art. 226 of the Constitution praying that the enquiry which respondent No. 1 was holding, should be quashed on the ground that it was B incompetent and without jurisdiction. This writ petition was summarily dismissed by the. said High Court on January. 6, 1965.\n\nThereafter, the appellant applied to this Court for special leave on January 8, 1965, and special leave was granted to him on January 14, 1965. The appellant then moved this Court for stay of further proceedings before respondent No. 1, and the said C prayer was granted. When special leave was granted to the appellant, this Court had made an order that the preparation of the record and the filing of statements of the case should be dispensed with and the appeal should be heard on the paper-book filed along with the special leave petition and must be placed for hearing within three weeks. That is how the matter has come before D us for final disposal.\n\nSince the Punjab High Court had dismissed the writ petition filed by the appellant in limine, neither of the two respondents had an opportunity to file their replies to the allegation made by the appellant in his writ petition. That is why both respondent No. I and respondent No. 2 have filed counter-affidavits in the E present appeal setting out all the relevant facts on which they wish to rely. The appellant has filed an affidavit-in-reply.\n\nAll these documents have been taken on the record at the time of the hearing of this appeal. It appears from the affidavit filed by Mr. Prakash Narain, Secretary to respondent No. I, that when notice issued by respondent No. I on the 17th November, 1964, F was served on the appellant, through oversight the original complaint filed by respondent No. 2 before the Governor of Orissa and the reference made by the Governor to respondent No. I were not forwarded to the appellant. At t]le hearing before us, it is not disputed by the appellant that a complaint was in fact made by respondent No. 2 before the Governor of Orissa and that the Governor had then referred the matter to respondent No. I for its opinion.\n\nLet us then refer to Article 192 which falls to be construed in the present appeal. Before reading this article, it is relevant\n\nto refer to Art. 191. Article 191(1) provides that a person shall H be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State if, inter alia, he is so disqualified by or under any law made by Parliament. There are four other disqualifications prescribed by clauses (a) to (d) with which we are not concerned in the present appeal. It is the disqualification prescribed by clause (e) on which respondent No. 2 relies in support of the complaint made by him\n\nBRUNDABAN v. ELECIION COMMISSION \\Gajendragadkat, G.J.) li7\n\nto the Governor. As we have already indicated, respondent No. 2's case is that the appellant has incurred the disqualification under Art. 19l(l)(e) read with s. 7(d) of the Act, and this disqualification has been incurred by him subsequent to his election.\n\nIt is well-settled that the disqualification to which Art. 191(1) refers, must be incurred subsequent to the election of the member.\n\nThis conclusion follows from the provisions of Art. 190(3)(a).\n\nThis Article refers to the vacation of seats by members duly elected. Sub-Article (3)(a) provides that if a member of a House of the Legislature of a State becomes subject to any of the dis qualifications mentioned in clause (!) of Art. 191, his seat shall thereupon become vacant. Incidentally, we may add that oorresponding provisions with regard to the disqualification of members of both Houses of Parliament are prescribed by Articles 10 I, 102\n\nand 103 of the Constitution. It ha> been held by this Court in Election Commission, India v. Saka Venkata Subba Rao and Union of India-Intervener/that Articles 190(3) and 192(1) are applicable only to disqualifications to which a member beoomes subject after being elected as such. There is no doubt that the alilegations made by respondent No. 2 in his complaint before the Governor, prima facie, indicate that the disqualification on which respondent No. 2 relies has arisen subsequent to the election of the appellant in 1961.\n\nReverting then to Art. 192, the question which we have t<> decide in the present appeal is whether respondent No. I is entitled to hold an enquiry before giving its opinion to the Governor as required by Art. 192(2). Let us read Art. 192:-\n\n\"(I) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of Article 191, the question shall be referred for the decision of the Governor and his decision shall be final.\n\n(2) Before gi'ving any decision on any such question, the Governor shall obtain the opinion cf the Election Commission and shall act according to such opinion\".\n\nMr. Setalvad for the appellant contends that in the present case, no question can be said to have arisen as to whether the appellant has become subject to any of the disqualifications mentioned in clause (I) of Art. 191, because his case is that such a question can be raised only on the floor of thf Legislative Assembly and can be raised by members of the.Assembly and not by an ordinary citizen or voter in the form of a comolaint to the Governor. Mr. Setalvad did not dispute the fact that this contention has not been taken by the appellant either in his writ oetition before the High Court or even in his application for special leave before this Court. In fact, the case sought to be made out by the appellant in the present proceedings appears to be that though a question may have arisen about\n\n(') [195~1 8.C~R. 1144.\n\nhis d1squali!ication, it is the Governor alone who can hold the en- , qUJry and not responJent No. I. Even s:i, we have allowed Mr. .'Setalvad to raise this point, becaase it is purely a question of law depending upon the construction of Art. 192(1).\n\nIn support of his argument, Mr. Setalvad refers to the fact thal Art. 192 occurs in Chapter Ill of Part VI which deals with the State Legislature, and he invited our attention to the fact that under Art.\n\nI \\1\\1\\3) which deals with a question as to whether a Bill introduce:! in the Legislature of a State which has a Legislative Council is a Money Bill or not. the decision of the Speaker of the Legislative Assembly of such State thereon shall be fin,!. He uges that just as the question ccntemplated by Art. 199(3) can be raised only on the ttoor of the House, so can the question about a subsequent disqualification of a member of a Legislative Assembly be raised on the floor of the House and nowhere else. He concedes that whereas the question contemplated by Art. 199(3) has to be decided by the Speaker and his decision is final, the authority to decide the question under Art. I 92(1) is not vested in the Speaker, but is vested in the Governor. In other words, the context in which Art. 192(! i occurs is pressed into service by Mr. Setalvad in support of his argument.\n\nMr. Setalvad also relies on the fact that Art. 192(1) provides that if any question arises, it shall be referred for the decision of the E Governor and this clause, . says Mr. Setalvad, suggests that there should be some referring authority which makes a reference of-the question to the Governor for his decision. According to him. this referring authority, by necessary implication, is the Speaker of the\n\nLegislative Assembly. There is another argument which he has advanced Defore us in support of this construction. Article 192(2) requires that whenever a question is referred to the Governor, he shall obtain the opinion of the Election Commission and Mr.\n\nSetalvad suggests that it could not have been the intention of the Constitution to requlre the Governor to refer to the Election Commission every question which is raised about an alleged disqualification of a member of a Legislative Assembly even though such a question may be patently frivolous or unsustainable.\n\nWe are not impressed by these arguments. It is significant that the !irst clause of Art. 192(1) does not permit of any limitations such as Mr. Se!alvad suggests. What the said cla\\!Se requires is that a quest10n should arise; how it arises, by whom it is raised, in what C!fcumstances it is raised, are not relevant for the purpose of the application of this clause. All that is relevant is that a question of the type mentioned by the clause should arise; and so, the limitation which Mr. Setalvad seeks to introduce in the construction of the first part of Art. 192(1) is plainly inconsistent with the words used in the said clause.\n\nBRUNDABAN \"· ELEcrrION CullMlSSION (Gajendragadkar, O.J.) 59\n\nThen as to the argument based on the words \"the question shall be referred for the decision of the Governor\", these words do not import the assumption that any other authority has to receive the complaint and after a prima facie and initial investigation about the complaint, send it on or refer it to the Governor for his decision.\n\nThese words merely emphasise that any question of the type contemplated by clause (I) of Art. 192 shall be decided by the Governor and Governor alone; no other authority can decide it, nor can the decision of the said question as such fall within the jurisdiction of the Courts. That is the significance of the words \"shall be referred for the decision of the Governor\". If tho intention was that the question must be raised first in the Legislative Assembly and after a prima facie examination by the Speaker it should be referred by him to the Governor, Art. 192(1) would have been worded in an entirely different manner. We do not think there is any justification for reading such serious limitations in Art. 192(1) merely by implication.\n\nIt is true that Art. 192(2) requires that whenever a.. question arises as to the subsequent disqualification of a member of the Legislative Assembly, it has to be forwarded by the Governor to the Election Commission for its opinion. It is conceivable that in some cases, complaints made to the Governor may be frivolous or fantastic; but if they are of such a character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightaway. The object of Art. 192 is plain. No person who has incurred any of the disqualifications specified by Art.191(1), is entitled to continue to be a member of the Legislative Assembly of a State, and since the obligation to vacate his seat as a result of his subsequent disqualification has been imposed by the Constitution itself by Art. 190(3)(a), there should be no difficulty in holding that any citizen is entitled to make a complaint to the Governor alleging that any member of the Legislative Assembly has incurred one of the disqualifications mentioned in Art. 191(1) and should, therefore, vacate his seat. The whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status, and if any member forfeits that status by reason of a\n\nsubsequent disqualification, it is in the interests of the constituency which such a member represents that the matter should be brought to the notice of the Governor and decided by him in accordance with the provisions of Art. 192(2).\n\nTherefore, we must reject Mr.\n\nSetalvad's argument that a question has not arisen in the present proceedings as required by Art. 192(1).\n\nThe next point which Mr. Setalvad has raised is that even if\n\n11 question is held to have arisen under Art. 192(1), it is for the Governor to hold the enquiry and not for the Election Commission.\n\nHe contends that Art. 192(1) requires the question to be referred to the Governor for his decision and provides that his decision shall be final. It is a normal requirement of the rule of law that a person\n\nwho decides should be empcwered to hold the enquiry which would A enable him to reach his decision, and since the Governor decides the question, he must hold the enquiry and not the Election Commission.\n\nThat, in substance, is Mr. Setalvad's case. He concedes that Art. 192(2) requires that the Governor has to pronounce his decision in\n\naccord.rne with tlie opinion given by the Election Commission; that is a Constitutional obligation imposed on the Governor. He. how- :S ever, argues that the Election Commission which has to give an opinion, is net competent to hold the enquiry, but it is the Governor who should hold the enquiry and then forward to the Election Commission all the material collected in such an enquiry to enable it to fcrm its opinion and communicate the same to the Governor. c We are satisfied that this contention also is not well-founded.\n\nThe scheme of Article 192(]) and (2) is absolutely clear. The decision on the question raised under Art. 192(1) has no doubt to' be pronounced by the Governor. but that decision has to be in accordance with the opinion of the Electicn Commission. The object of this provision clearly is to leave it to the Election Commission to decide D the matter, though the decision as such wauld formally be pronounced in the name of the Governor. When the Governor pronounces his decision under Art. 192(1), he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself; he has merely to forward the question to the Electidn Commission for its opinion, and as soon as the opinion E is received, \"he shall act according to such opinion\". In regard to complaints made against the election of members to the Legislative Assembly, the jurisdiction to decide such complaints is left with the Election Tribunal under the relevant provisions of the Act. That means that all allegations made challenging the validity of the election of any member, have to be tried by the Election Tribunals F constituted by the Election Commission. Similarly, all complaints in respect of disqu1Jificaticms subsequentlv incurred by members who have been validly elected, have, in substance, to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor. If this scheme of Art. J 92(1) 8nd (2) is borne in mind, there woulc be no difficulty in rejecting Mr.\n\nSetalvad's contention that the enquiry must be held by the Governor. It is the opinion of the Election Commission which is in substance decisive and it is legitimate to assume that when the complaint is received by the Governor, and he forwards it to the Election Commission, the Election Commission should proceed to try the complaint before it gives its opinion. Therefore, we are satisfied H that respondent No. I acted within its jurisdiction when it served a notice on the appellant calling upon him to file his statement and produce his evidence in support thereof.\n\nMr. Setalvad faintly attempted to argue that the failure of respondent No. I to furnish the appellant with a copy of the complaint made by responde; it No. 2 before the Governor and of the\n\nBRUNDABAN v. ELECTI<JN COMMISSION (Gajendragadkar, O.J.) 61\n\norder f reference passed by. the Governor forwarding the said complaint to respodent No. l, rendered the proceedings before respondent No. l illegal. This contention is plainly misconceived.\n\nAs soon as respondent No. l received the complaint and the order of reference which was communicated to it by the Chief Secretary to the Government of Orissa, it was seized of the matter and it was plainly acting within its jurisdiction under Art. 192(2) when it served the notice on the appellant. As we have already indicated, it was through oversight that the two documents were not forwarded to the appellant along with the notice, but that cannot in any sense affect the jurisdiction of respondent No. l to hold the enquiry. In fact, as respondent No. 2 has pointed out in his affidavit, the fact that a reference had been made by the Governor to respondent No. l was known all over the State, and it is futile for the appellant to suggest that when he received the notice from respondent No. l, he did not know that a complaint had been made against him to the Governor alleging that subsequent to his election, he had incurred a disqualification as contemplated by Art. 191 (l)(e) of the Constitution read with s. 7(d) of the Act. It would have been better if the appellant had not raised such a plea in the present proceedings.\n\nIn this connection, we ought to point out that so far the practiee followed in respect of such complaints has consistently recognised that the enquiry is to be held by the Election Commission both under Art: 192(2) and Art. 103(2). In fact, the learned Attomey-\n\nGeneral far respondent No. 1 stated before us that though on several occasions, the Election Commission has held enquiries before communicating its opinion either to the President under Art. 103(2) or to the Governor under Art. 192(2), no one ever thought of raising the contention that the enquiry must be held by the President or the Governor respectively under Art. 103(1) and Art. 192(1). He suggested that the main object of the appellant in taking such a plea was to prolong the proceedings before respondent No. !. In the first instance, the appellant asked for a long adjournment and when that request was refused by respondent Noc !, he adopted the present proceedings solely with the object of avoiding an early decision by the Governor on the complaint made against the appellant by respondent No. 2. We cannot say that there is no substance in this suggestion.\n\nThere is one more point to which we may refer before we part with this appeal. Our attention was drawn by th~ learned. Attorney- General to the observations made by the Chief Election Commissioner when he rendered his opinion to the Gavernor on May 30, 1964, on a similar question under Art. 192(2) in respect of.the alleged disqualification of Mr. Biren Mitra, a member of the Onssa Legislative Assembly, \"Where, as in the present case\": oberved the Chief Election Commissioner, \"the relevant facts are m ~1sute and can only be ascertained after a proper enquir~, the Co1!1m1ss1on ~ds Itself in the unsatisfactory position of havmg to give a dec1S1ve\n\nL/B(D)2SCI-6\n\nopinion en the basis 9f such affidavits and documents as may be A produced before it. by interested. parties. It is desirable that the Election Commission should be vested with. th(l powers of a commission under the Commissions of Enquiry Act, 1952, such as the\n\npowr to summon witnesses and .examine them on oath, the power to compel the production of documents, and the power to issue commiss ; ons for the examination of witnesses\". We would like to invite B\n\n1 the attention of Parliament to these observations, because we think that the difficulty experienced by the Election Commission in rendering its opinion under Art. 103(2) or. Art. 192(2) appears to be genuine, and so Parliament may well consider whether the suggestion made by the Chief Election Commissioner should not be accepted and appropriate legislation adopted in that behalf.\n\nThe result is, the appeal fails and is dismissed with costs. In view of the fact that the present proceedings have unnecessarily protracted the enquiry before respondent No. l, we suggest that respondent No. 1 should prO'Ceed to consider the matter and forward its opinion to the Governor as early as possible .. It is hardly neces, D sary to point out that in case the allegations made against the appellant are found to be valid, and the opinion of respondent No. l is in favour of the Cl\\Se set out by respondent No. 2, complications may arise by reason of the Constitutional provision , prescribed by Art. 190(3). In view of the said provision, it is of utmost importance that complaints made under Art. 192(1) must be disposed of as E expeditiously as possible.\n\nAppeal dismissed.", "total_entities": 135, "entities": [{"text": "ELECTION COMMISSION OF INDIA AND ANOTHER", "label": "RESPONDENT", "start_char": 20, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "ELECTION COMMISSION OF INDIA AND ANOTHER", "offset_not_found": false}}, {"text": "IP. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 80, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "M. 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C. Setalvad", "label": "OTHER_PERSON", "start_char": 4344, "end_char": 4358, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, Ravinder Narain, J. B. Dadachanji and\n\n0."}}, {"text": "Ravinder Narain", "label": "OTHER_PERSON", "start_char": 4360, "end_char": 4375, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, Ravinder Narain, J. B. Dadachanji and\n\n0."}}, {"text": "J. B. Dadachanji", "label": "LAWYER", "start_char": 4377, "end_char": 4393, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, Ravinder Narain, J. B. Dadachanji and\n\n0."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 4402, "end_char": 4411, "source": "ner", "metadata": {"in_sentence": "C. Mathur, for the appellant."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 4433, "end_char": 4447, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, S. V. Gupte, Solicitor- General, B .. R. L. Iyengar and R. H. Dhebar, for the respondent No. !."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 4467, "end_char": 4478, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, S. V. Gupte, Solicitor- General, B .. R. L. Iyengar and R. H. Dhebar, for the respondent No. !."}}, {"text": "B .. R. L. Iyengar", "label": "LAWYER", "start_char": 4500, "end_char": 4518, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, S. V. Gupte, Solicitor- General, B .. R. L. Iyengar and R. H. Dhebar, for the respondent No. !."}}, {"text": "R. H. Dhebar", "label": "LAWYER", "start_char": 4523, "end_char": 4535, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, S. V. Gupte, Solicitor- General, B .. R. L. Iyengar and R. H. Dhebar, for the respondent No. !."}}, {"text": "Santosh Chatterjee", "label": "LAWYER", "start_char": 4564, "end_char": 4582, "source": "ner", "metadata": {"in_sentence": "Santosh Chatterjee, B. B, Ratho and M. L. Chhibber, for respondent No."}}, {"text": "B. B, Ratho", "label": "LAWYER", "start_char": 4584, "end_char": 4595, "source": "ner", "metadata": {"in_sentence": "Santosh Chatterjee, B. B, Ratho and M. L. Chhibber, for respondent No."}}, {"text": "M. L. Chhibber", "label": "LAWYER", "start_char": 4600, "end_char": 4614, "source": "ner", "metadata": {"in_sentence": "Santosh Chatterjee, B. B, Ratho and M. L. Chhibber, for respondent No."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 4683, "end_char": 4697, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendragadkar, C.J. The principal question which this appeal F by special leave raises for our decision relates to the construction of Article 192 of the Constitution.", "canonical_name": "Gajendragq.dkar"}}, {"text": "Article 192", "label": "PROVISION", "start_char": 4819, "end_char": 4830, "source": "regex", "metadata": {"linked_statute_text": "Commission under the Commissions of Enquiry Act, 1952", "statute": "Commission under the Commissions of Enquiry Act, 1952"}}, {"text": "Brundaban Nayak", "label": "PETITIONER", "start_char": 4904, "end_char": 4919, "source": "metadata", "metadata": {"canonical_name": "Brundaban Nayak", "offset_not_found": true}}, {"text": "Ganjam district", "label": "GPE", "start_char": 5003, "end_char": 5018, "source": "ner", "metadata": {"in_sentence": "The appellant Brundaban Nayak was eledted to the Legislative Assembly of Orissa from the Hinjili Constituency in Ganjam district in 1961, and was appointed one of the Ministers of the Council of Ministers in the said State."}}, {"text": "August 18, 1964", "label": "DATE", "start_char": 5117, "end_char": 5132, "source": "ner", "metadata": {"in_sentence": "On August 18, 1964, G respondent No."}}, {"text": "P. Biswal", "label": "RESPONDENT", "start_char": 5154, "end_char": 5163, "source": "ner", "metadata": {"in_sentence": "2, P. Biswal, applied to the Governor of Orissa alleging that the appellant had incurred a disqualification subsequent to his election under Art."}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 5292, "end_char": 5299, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 7", "label": "PROVISION", "start_char": 5337, "end_char": 5346, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 5354, "end_char": 5392, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Orissa Legislative Assembly", "label": "ORG", "start_char": 5600, "end_char": 5627, "source": "ner", "metadata": {"in_sentence": "2 made several allegations in support of his con- H tention that the appellant had become disqualified to be a member of the Orissa Legislative Assembly."}}, {"text": "September 10, 1964", "label": "DATE", "start_char": 5632, "end_char": 5650, "source": "ner", "metadata": {"in_sentence": "On September 10, 1964, the Chief Secretary to the Government of Orissa forwarded the said complaint."}}, {"text": "Government of Orissa", "label": "ORG", "start_char": 5679, "end_char": 5699, "source": "ner", "metadata": {"in_sentence": "On September 10, 1964, the Chief Secretary to the Government of Orissa forwarded the said complaint."}}, {"text": "Election Commission of• India", "label": "ORG", "start_char": 5755, "end_char": 5784, "source": "ner", "metadata": {"in_sentence": "I, the Election Commission of• India, under the instructions of the Governor."}}, {"text": "Gajendragq.dkar", "label": "JUDGE", "start_char": 6005, "end_char": 6020, "source": "ner", "metadata": {"in_sentence": "In this communication, the Chief Secretary stated thl!t a question had arisen under Article I 9 I (I) of the Constitution whether the member in\n\nBRUNDABAN v. ELECTION COMMISSION (Gajendragq.dkar, 0.J.) 55\n\nA question had been subject to the disqualification alleged by respondent No.", "canonical_name": "Gajendragq.dkar"}}, {"text": "November 17, 1964", "label": "DATE", "start_char": 6336, "end_char": 6353, "source": "ner", "metadata": {"in_sentence": "B On November 17, 1964, respondent No."}}, {"text": "December l, 1964", "label": "DATE", "start_char": 6998, "end_char": 7014, "source": "ner", "metadata": {"in_sentence": "On December l, 1964, the appellant sent a telegram to respondent No."}}, {"text": "December 8, 1964", "label": "DATE", "start_char": 7330, "end_char": 7346, "source": "ner", "metadata": {"in_sentence": "On December 8, 1964."}}, {"text": "Chatterjee", "label": "LAWYER", "start_char": 7449, "end_char": 7459, "source": "ner", "metadata": {"in_sentence": "2 appeared by his counsel Mr. Chatterjee, but the appellant was absent.", "canonical_name": "Chatterjee"}}, {"text": "Art. 192(2)", "label": "PROVISION", "start_char": 7568, "end_char": 7579, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "2nd January, 1965", "label": "DATE", "start_char": 7978, "end_char": 7995, "source": "ner", "metadata": {"in_sentence": "1 gave the appellant time until the 2nd January, 1965, 10-30 A.M. when it ordered that the matter would be heard."}}, {"text": "January 2, 1965", "label": "DATE", "start_char": 8060, "end_char": 8075, "source": "ner", "metadata": {"in_sentence": "On January 2, 1965, the appellant appeared by his counsel Mr. Patnaik and respondent No."}}, {"text": "Patnaik", "label": "LAWYER", "start_char": 8119, "end_char": 8126, "source": "ner", "metadata": {"in_sentence": "On January 2, 1965, the appellant appeared by his counsel Mr. Patnaik and respondent No.", "canonical_name": "Patnail-"}}, {"text": "Chatterjee", "label": "LAWYER", "start_char": 8343, "end_char": 8353, "source": "ner", "metadata": {"in_sentence": "Mr. Chatterjee repelled Mr.\n\nPatnaik's contention.", "canonical_name": "Chatterjee"}}, {"text": "Patnaik", "label": "LAWYER", "start_char": 8368, "end_char": 8375, "source": "ner", "metadata": {"in_sentence": "Mr. Chatterjee repelled Mr.\n\nPatnaik's contention.", "canonical_name": "Patnail-"}}, {"text": "Patnail-", "label": "LAWYER", "start_char": 8422, "end_char": 8430, "source": "ner", "metadata": {"in_sentence": "1 over-ruled Mr. Patnail-'s contention and recorded its conclusion that it was competent to hold the enquiry under Art.", "canonical_name": "Patnail-"}}, {"text": "Art. 192(2)", "label": "PROVISION", "start_char": 8520, "end_char": 8531, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 9165, "end_char": 9182, "source": "ner", "metadata": {"in_sentence": "moved the Punjab High Court under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 9189, "end_char": 9197, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "January. 6, 1965", "label": "DATE", "start_char": 9433, "end_char": 9449, "source": "ner", "metadata": {"in_sentence": "said High Court on January."}}, {"text": "January 8, 1965", "label": "DATE", "start_char": 9521, "end_char": 9536, "source": "ner", "metadata": {"in_sentence": "Thereafter, the appellant applied to this Court for special leave on January 8, 1965, and special leave was granted to him on January 14, 1965."}}, {"text": "January 14, 1965", "label": "DATE", "start_char": 9578, "end_char": 9594, "source": "ner", "metadata": {"in_sentence": "Thereafter, the appellant applied to this Court for special leave on January 8, 1965, and special leave was granted to him on January 14, 1965."}}, {"text": "Prakash Narain", "label": "OTHER_PERSON", "start_char": 10696, "end_char": 10710, "source": "ner", "metadata": {"in_sentence": "It appears from the affidavit filed by Mr. Prakash Narain, Secretary to respondent No."}}, {"text": "Orissa", "label": "GPE", "start_char": 10936, "end_char": 10942, "source": "ner", "metadata": {"in_sentence": "2 before the Governor of Orissa and the reference made by the Governor to respondent No."}}, {"text": "Article 192", "label": "PROVISION", "start_char": 11296, "end_char": 11307, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 191", "label": "PROVISION", "start_char": 11416, "end_char": 11424, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 191(1)", "label": "PROVISION", "start_char": 11426, "end_char": 11440, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Parliament", "label": "ORG", "start_char": 11661, "end_char": 11671, "source": "ner", "metadata": {"in_sentence": "Article 191(1) provides that a person shall H be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State if, inter alia, he is so disqualified by or under any law made by Parliament."}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 12120, "end_char": 12127, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 7(d)", "label": "PROVISION", "start_char": 12145, "end_char": 12152, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 191(1)", "label": "PROVISION", "start_char": 12299, "end_char": 12310, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 190(3)(a)", "label": "PROVISION", "start_char": 12426, "end_char": 12440, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 191", "label": "PROVISION", "start_char": 12675, "end_char": 12683, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Articles 10", "label": "PROVISION", "start_char": 12874, "end_char": 12885, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Union of India", "label": "ORG", "start_char": 13014, "end_char": 13028, "source": "ner", "metadata": {"in_sentence": "It ha> been held by this Court in Election Commission, India v. Saka Venkata Subba Rao and Union of India-Intervener/that Articles 190(3) and 192(1) are applicable only to disqualifications to which a member beoomes subject after being elected as such."}}, {"text": "Articles 190(3) and 192(1)", "label": "PROVISION", "start_char": 13045, "end_char": 13071, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 192", "label": "PROVISION", "start_char": 13443, "end_char": 13451, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 192(2)", "label": "PROVISION", "start_char": 13629, "end_char": 13640, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 192", "label": "PROVISION", "start_char": 13654, "end_char": 13662, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 191", "label": "PROVISION", "start_char": 13836, "end_char": 13847, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Setalvad", "label": "LAWYER", "start_char": 14113, "end_char": 14121, "source": "ner", "metadata": {"in_sentence": "Mr. Setalvad for the appellant contends that in the present case, no question can be said to have arisen as to whether the appellant has become subject to any of the disqualifications mentioned in clause (I) of Art.", "canonical_name": ".'Setalvad"}}, {"text": "Art. 191", "label": "PROVISION", "start_char": 14320, "end_char": 14328, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": ".'Setalvad", "label": "LAWYER", "start_char": 15070, "end_char": 15080, "source": "ner", "metadata": {"in_sentence": "I. Even s:i, we have allowed Mr. .'Setalvad to raise this point, becaase it is purely a question of law depending upon the construction of Art.", "canonical_name": ".'Setalvad"}}, {"text": "Art. 192(1)", "label": "PROVISION", "start_char": 15176, "end_char": 15187, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 192", "label": "PROVISION", "start_char": 15255, "end_char": 15263, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 199(3)", "label": "PROVISION", "start_char": 15696, "end_char": 15707, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 199(3)", "label": "PROVISION", "start_char": 15956, "end_char": 15967, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 192(2)", "label": "PROVISION", "start_char": 16792, "end_char": 16806, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 192(1)", "label": "PROVISION", "start_char": 17334, "end_char": 17345, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Se!alvad", "label": "LAWYER", "start_char": 17393, "end_char": 17401, "source": "ner", "metadata": {"in_sentence": "192(1) does not permit of any limitations such as Mr. Se!alvad suggests.", "canonical_name": ".'Setalvad"}}, {"text": "Art. 192(1)", "label": "PROVISION", "start_char": 17809, "end_char": 17820, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "BRUNDABAN", "label": "JUDGE", "start_char": 17886, "end_char": 17895, "source": "ner", "metadata": {"in_sentence": "BRUNDABAN \"· ELEcrrION CullMlSSION (Gajendragadkar, O.J.) 59\n\nThen as to the argument based on the words \"the question shall be referred for the decision of the Governor\", these words do not import the assumption that any other authority has to receive the complaint and after a prima facie and initial investigation about the complaint, send it on or refer it to the Governor for his decision.", "canonical_name": "Brundaban Nayak"}}, {"text": "Art. 192", "label": "PROVISION", "start_char": 18371, "end_char": 18379, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 192(1)", "label": "PROVISION", "start_char": 18838, "end_char": 18849, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 192(1)", "label": "PROVISION", "start_char": 18989, "end_char": 19000, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 192(2)", "label": "PROVISION", "start_char": 19041, "end_char": 19052, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 192", "label": "PROVISION", "start_char": 19527, "end_char": 19535, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art.191(1)", "label": "PROVISION", "start_char": 19615, "end_char": 19625, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 190(3)(a)", "label": "PROVISION", "start_char": 19844, "end_char": 19858, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 191(1)", "label": "PROVISION", "start_char": 20074, "end_char": 20085, "source": "regex", "metadata": {"linked_statute_text": "Constitution of 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{"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 192(])", "label": "PROVISION", "start_char": 21973, "end_char": 21987, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 192(1)", "label": "PROVISION", "start_char": 22059, "end_char": 22070, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Electicn Commission", "label": "ORG", "start_char": 22185, "end_char": 22204, "source": "ner", "metadata": {"in_sentence": "but that decision has to be in accordance with the opinion of the Electicn Commission."}}, {"text": "Art. 192(1)", "label": "PROVISION", "start_char": 22443, "end_char": 22454, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Electidn Commission", "label": "ORG", "start_char": 22624, "end_char": 22643, "source": "ner", "metadata": {"in_sentence": "192(1), he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself; he has merely to forward the question to the Electidn Commission for its opinion, and as soon as the opinion E is received, \"he shall act according to such opinion\"."}}, {"text": "Art. 192(2)", "label": "PROVISION", "start_char": 24744, "end_char": 24755, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 191", "label": "PROVISION", "start_char": 25473, "end_char": 25481, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 7(d)", "label": "PROVISION", "start_char": 25519, "end_char": 25526, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 103(2)", "label": "PROVISION", "start_char": 25857, "end_char": 25868, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Attomey-", "label": "RESPONDENT", "start_char": 25891, "end_char": 25899, "source": "ner", "metadata": {"in_sentence": "In fact, the learned Attomey-\n\nGeneral far respondent No."}}, {"text": "Art. 103(2)", "label": "PROVISION", "start_char": 26087, "end_char": 26098, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 192(2)", "label": "PROVISION", "start_char": 26124, "end_char": 26135, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 103(1)", "label": "PROVISION", "start_char": 26265, "end_char": 26276, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 192(1)", "label": "PROVISION", "start_char": 26281, "end_char": 26292, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Noc", "label": "RESPONDENT", "start_char": 26537, "end_char": 26540, "source": "ner", "metadata": {"in_sentence": "In the first instance, the appellant asked for a long adjournment and when that request was refused by respondent Noc !,"}}, {"text": "May 30, 1964", "label": "DATE", "start_char": 27020, "end_char": 27032, "source": "ner", "metadata": {"in_sentence": "Attorney- General to the observations made by the Chief Election Commissioner when he rendered his opinion to the Gavernor on May 30, 1964, on a similar question under Art."}}, {"text": "Art. 192(2)", "label": "PROVISION", "start_char": 27062, "end_char": 27073, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Biren Mitra", "label": "OTHER_PERSON", "start_char": 27124, "end_char": 27135, "source": "ner", "metadata": {"in_sentence": "192(2) in respect of.the alleged disqualification of Mr. Biren Mitra, a member of the Onssa Legislative Assembly, \"Where, as in the present case\": oberved the Chief Election Commissioner, \"the relevant facts are m ~1sute and can only be ascertained after a proper enquir~, the Co1!1m1ss1on ~ds Itself in the unsatisfactory position of havmg to give a dec1S1ve\n\nL/B(D)2SCI-6\n\nopinion en the basis 9f such affidavits and documents as may be A produced before it."}}, {"text": "Onssa Legislative Assembly", "label": "ORG", "start_char": 27153, "end_char": 27179, "source": "ner", "metadata": {"in_sentence": "192(2) in respect of.the alleged disqualification of Mr. Biren Mitra, a member of the Onssa Legislative Assembly, \"Where, as in the present case\": oberved the Chief Election Commissioner, \"the relevant facts are m ~1sute and can only be ascertained after a proper enquir~, the Co1!1m1ss1on ~ds Itself in the unsatisfactory position of havmg to give 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{"document_id": "1965_3_550_566_EN", "year": 1965, "text": "NIRMALA BALA GllOSE Al'cl> ANOTHER\n\nBALAI CHAND GHQSE AND ORS.\n\nMarch 29, 1965 (K. SuoBA RAO, J. C. SHAH AND R. S. BACl!AWAT, JJ.I Relig'ous Endowment-Dcl>utter-Construction of deed of sottle112ent-Endowment whether partial or complete--Tests f<Yf deciding-Provision for maintenance of sh~':t•Us irheth9r 1nak:>s endowment partial-Effect of inva.iditu of ccrta n provisions of deed- E.rpanding income and static eXJJcnses-lnfcrcnce from-Right of joont sheba\"it to appeal if deities represented by guardian ad !item.\n\nCode of Civil Procedure (5 of 1908)--0rder 41 r. 33-Applicability of-When decree can be amended in appeal in favour of non--0ppeal- 1ng party.\n\nHELD: (i) The question whether a deed of dedication creates an abosulte or part'al dedication must be settled by a conspectus of all the provisions of the deed. If the property is wholly dedicated to the worship of the idol and no beneficial interest is reserved to the settlor. his descendants or other persons, the ded; cation Ls CC'ffip:ete: if by the deed it is intended to create a charge :n favour of the deity and the residue vest• in the settlor, the dedicat'on i• partial.\n\n(ii) A reasonable provision for remuneration rna:ntenance and residence of the Shebaits does not make an endowment bad, for even when property is ded'cated absolutely to .an idol, and no beneficial interest is reserved to the settlor, the property is held by the deity in an ideal sense. The possession and management of the property must, in the very nature of things, be entrusted to Shebait or manc:ger and nomination of the settler himself and his heirs with\n\nreaonablc rC'muncraton 0 11t of the cndo\\ved property \\vith right of residence in the property will not invalidate the endowment. [556E-GJ\n\n(i'i) A provision for the benefit of perscns other than :he Shebait may not be valid, if !t infringes the rule against pcrpetJitics er accumulat1ons, or rules agains: impermiss:bic res<rict; ons, but that does not affect the validity of the endowm<mt. The bcnefic; al interest in the provison found ; nvalid reverts to the deity or the settlor according as the endo\\vmr.nt is absoutc er partial. lf the endo\\\\mcnt\n\n:s absolute and a che:rgc crcatrd !n favour •)f other persons is invalid, the benefit will enure to the d1•ity, and will not revert to the settlor or his he'rs. (556G-ll]\n\n(iv) There is n:> rule that \\vhen the incumP is expanding and the expenses arc statc. leav:ng a substantial residue, it must be presumed, not\\\\'; ths:anding the comprrhcnsive and unrcstric'.ted nature c-f the dispos'.tion. that the> scttor intended to create only a charge in fvour of the City. The quest.on is alwavs one of intention of the settler to be determined from a rcv:r.·, i; of all the dispositions under the deed of settlement. r560G]\n\nSurendrakeshrw Roy v. Doorgasundar< Dassee and A11r. L. R. 19 I.A !08. explained.\n\nSri Sri ls1cari BhubanPshtcari Thalcurani v. Brojonth Dev and Ors. L.R. 64 I.A. ~03 and Sree Sree /shu:ar Sridhar Jew v. Sushi!a Bala Desi and Ors. [ 1954] S.C.R. 407. rel!ed on.\n\n...\n\nNIRMAL.\\ V. ll,\\LAC CHANJl (Shah, J.) 551\n\nA Per Subba Rao rnd Shah, JJ.--When the guardian of the deitie, did not appeal against the finding of the tr:al com;! that there was a partial ded'cation, it was not open to a joint Shebait who was not a guardian, to appeal against the decree and contend that the dedication was absolute.\n\nWhen a party allows a decree of the court of First Instance to become final, by not appealing against the decree, it would not be B open to another party to the lit'gation, whose rights are otherwise not affected by tho decree, to invoke the powers of the appellate court under o. 41 r. 33 to pass a decree in favour of the party not'\n\nappealing so as to give the latter a benefit wh'.ch he has not claimed ..\n\n[564D]\n\nPer Bachawat, J. (Partially dissenting)---When the trial court decrees that the endowment in favour of the deities was not abso- C lute, and the guardian ad !item of the deities o!ces not appeal, it is open to a jo'nt shebait even when he is not a guardian to assail the decree in appeal. [56.5A]\n\nMaharaja Jagadindra Nath Roy Baha\"dur v. Rani Hemanta Kumari Debi, (1904) L. R. 31 I. A. 203, relied on.\n\nShebaiti right is a right to property. This right is affected by a declaration that the dedica)ion in favour of the deities is partial and not absolute. The shebaiti right in an absolute debutter is different from the shebaiti right in a partial debutter. The joint shebait is entitled to defend his right even when the guardian of the deities doe• not appeal. [565E, HJ The Commissioner of Hindu Religious Endowments, Madras v.\n\nSri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] S.C.R. 1005, referred to.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 966 to 968 of 1964.\n\nAppeals from the judgment and decree dated September 23, 1959, of the Calcutta High Court in Appeals from Original Decrees Nos. 268 to 270 of 1957.\n\nS. V. Guptc, Solicitor-Genera/, A. K. Sen, and D. N. Mukherji, for the appellants (in all the appeals).\n\nA. V. Viswanatha Sastri and S. C. Majumdar, for respondent No. I.\n\nThe Judgment of SUB BA RAo and SHAH JJ. was delivered by SHAH, J. BACHAWAT, J. partially dissented.\n\nShah, J. This group of appeals arises out of suits Nos. 79 and 80 of 1954 and 67 of 1955 filed by the first respondent Balai Chand Ghose (who will hereinafter be called \"Balai\") in the Court of the Eighth Subordinate Judge, Alipore, District 24-Parganas, West Bengal. In Suits Nos. 79 and 80 of 1954 Balai prayed that he be declared owner of the properties described in the schedules annexed to the respective plaints. In su.it No. 67 of 1955 he claimed that it be declared that his wife Nirmala, is a benamidar for him and that the .deed of dedication dated Septmber 15, 1944 did not amol'nt to an absolute dedic3tion of the properties in suit to the deities Sri Satyanarayan Jiu & Sri Lakshminarayan Jiu and that the plaintiff is the sole Shebait of the two deities. The Trial\n\nOfi2 [1965] 3 s:c.R.\n\nCourt decreed suits Nos. 79 & 80 of 1954 holding that the plaintiff A was the owner of the disputed properties and the deed of endowmer.t Ext. 11 (a) executed on March 8, 'J 939 by Nirmala was \"sham and colourable\". In suit No. 6} of 1955 the Subordinate Judge dedared that Nirmala was a benamidar of Balai of the properties in suit and the deed of endowment dated September 15, 1944, Ext. l l. -did not amou<lt to absolute dedication of the properties to the B deities Sri Satyanarayan Jiu and sri Lakshminarayan Jiu.\n\nThe High--Court of Judicature at lcutta, in exercise of its appellate jurisdiy(ion,-ipodified the decrees passed by the Trial Court. The High Court held that the deed Ext. 11 (a) was not sham, but it am;)l111ted to a partial dedication in favour o~ the deity Sri c Gopal Jiu i.e. it created a charne on the 'properties endowed for the purposes of the deity mentioned in the deed. The decree pasod in suit No. 67 of 1955 from ;.vhl.clu1ppeal No. 269 of 1957 arose was dismissed subject to the \"clarification or darific'ations\" that it creqted only a charge in favour of the deity or deities for the purposes recited therein arid thai subject to the D charge, the rroperties belonged to Balai. With certificates of fitness granted by the .High Court. these three appeals have been preferred.\n\n[After stating the facts which gave rise to the appeals His Lordship proceeded] E\n\nWe may briefly set out the terms of the deed Ext. I l(a). It isdescribed , as a deed of dedication iii respect of immovable properties valued at Rs. 20,000 for the Seba of the deity. After describing the. properties it is recited that the sett!or was in possession and erijoyment of the properties and that she dedicated the properties for Deb-Seba. The deed then recites that the settlor had been -carrying on the Seba of Sri\" Gopal Jiu installed by her husband, and that the properties dedicated by her husband were not sufficient for satisfactorily carrying on the Seba of Sri Gopal Jiu for ever and for perpetuating the names of her father-in-law and mother-in-law and for carrying on the work of worship of the deity of Sri Gopal Jiu regularly for ever, the provisions then set out were made. 'The deed pr_oceeds to state:\n\n~I dedicate the abovementioned two properties more fully described in the schedule below in order that the daily and periodichl Seba etc. of the said Sri Sri Gopal Thakur installed by n; iy husband may go on regularly.\n\nFrom this day the said two properties become the pebuttar properties of the said deity Sri Sri Gopal Jiu Thakur and they vest in it in a state absolutely free from encumbrances and defects. The saitl deity Sri Sri\n\nGopal Jiu becomes the full owner of the said two properties. As to this neither I nor any of my heirs and legal representatives in succession shall raise .0r be\n\nB •\n\nNIRMALA V. BALA! CHAND (Shah, J.) 553\n\nentitled to lay any claim or demand at any time and even if it be done it shall be wholly void and rejected\"\n\nThen the deed directs that \"one good temple and ornaments worth approximately Rs. 500/- for Sri Gopal Jiu Thakur will be made out of the income of the Debuttar properties of Sri Gopal Jiu Thakur and on the temple being constructed, the deity will be installed and established therein and the expenses for worship etc. and entertaining Brahmins and other expenses in connection with the ceremony shall be met out of the income of the Debuttar properties of Sri Gopal Jiu Thakur\". To meet the expenses for the worship of the deity the properties described in the schedule, it was directed, will be let out on rent and all the exp6nses of the deity will be defrayed out of the rents, that the Shebait shall maintain proper accounts of the income and expenditure and deposit in the deity's fund any surplus, repair the houses yearly, pay municipal taxes etc., and out of the accumulations from the surplus income purchase immovable properties in the name of the deity and with the income erect a house at 153, Beliaghata Main Road and deposit the rent from that house in the Debuttar fund. The deed gives detailed directions with regard to succession to the Shebaitship.\n\nBy the deed Nirmala and her husband Balai were constituted joint Shebaits and it was directed that after Nirmala's death Balai shall be the Shebait, am! after his death his two sons Paresh and Naresh will become Shebaits of the deity. The settlor expressed the hope that the two Shebaits and their lineal descendants will live in tlie same mess as members of the family and directed that any one who separated in mess will not be entitled to be a Shebait of the deity, but if they separated in mess for want of accommodation \"out of their own accord and being unanimous\", and all the properties remain joint, they shall be entitled to remain Shebaits. On the death of the two sons, Paresh and Naresh, their sons will become Shebaits in accordance with the shares of their respective fathers in the Shebaitship, and if any of the sons have more than one son then all such sons will together get their father's turn of worship and will act in accordance with the terms of the deed and carry on the worship of the deity and that in the absence of sons' sons, the settlor's great grandsons will be appointed Shebaits, and they will protect the Debuttar property. The deed then directs that the daily Seba will be carried on in the same manner prescribed in the deed of dedication relating to the Debuttar created by Balai and the daily and periodical expenses for the worship of the deity will be met out of the Debuttar properties dedicated by Balai. Provision was then made that on the occasion of each of the festivals of Janmastami, Rasjatra and of Sri Gopal Jiu Thakur a sum of Rs. 101 /- will be spent by the Shebaits for entertaining Brahmins and the poor. A monthly remuneration of Rs. 25 /- is provided for the person who acts as a Shebait and it is directed that so long as the sons shall remain Shebaits in joint mess. they will get, for the\n\nSUPREME L'OURT REPJ tT~ (1965] 3 l.C.R.\n\nexpenses of their common family expenses four maunds of rice. two ma'tinds of flour per month and Rs. 2 /- per day \"for daily .expenses\". An additional amount of Rs. 101per month is directed to\n\nbe spent on the Sankranti day i.e. on the last day of each month and Rs. 51 /-on the occasion of Sivaratri out of the Debittrar estate. All these expnscs, if is directed, are to be met out of the house rents and the monthly Ticca rent of the lands of the Bmtee of the Debuttar properties. but the Shebaits arc not entilled to let out the house or land in permanent rights 10 any one nor are they entitled 10 mortgage, make a gift of. sell. encumber or transfer the S•lil:e in any other manner. and if there be no tenant in the house or the rent of the B11stee be not realised. the expenses of the deities will be reduced and the Silebaits will get reduced remuneration proportionately.\n\nProvision is made for the devolution of the office of Shebait. Descendants in the female line are excluded from Shebaitship, until the entire male line is extinct. Provision is also made for application of the compensation received for Debuttar property: it is directed that out of the amount of compensation immovable properties will be purchased by the Shbaits in the name of the deity or the amount will be invested in Government paper in the name of the deity, and out of the interest thereof disbursements directed in the deed will be made. The deed then directs that the surplus amount remaining after meeting the cost of worship will be acumulated. The Slzebaits are prohibited from residing in or otherwise using the houses appertaining to the Debuttar estate and it is directed that if any one resides or uses it. he will remain bound to pay proper rent. Paragraph 12 of the deed then provides:\n\n\"II in future the Shebaits be in want of rooms for their residence then each of them will take three Cottahs of i' land within the Bustee No. 153, Beliaghata Main Road beginning from the southern extremity and after erecting houses thereon at his own expense will continue to enjoy and possess the same down to his sons, sons' sons and other heirs in succession on payment of a rent of Rs. 2 /- per Cottah per month to the Debuttar O estate and will pay for. taxes. rent~ and repairs etc. of the said house from their respective funds\".\n\nIn the event of any Slzebait dying sonless after constructing a house, his widow will be entitled during her lifetime to reside in the house and will also be entitled to get food and Rs 5 /- pcr H month as expenses. The deed then again states:\n\n\"Be it stated that no one will at any time be entitled to make gift, sale or transfer in respect of the house built in the said Bustee. The said house will form a part of the De/mttar estate and the Shebait will only remain in possession of the same\".\n\n\\ D\n\nN!RMALA <'. nALAI CHAND (Shah, J.) 555\n\nFinally, the deed states that to the effect stated in the deed the settlor gives to Sri Iswar Gopal Jiu Thakur installed by her husband \"the properties etc. mentioned in the schedule below\".\n\nIn the preamble as well as in the operative part of the deed, it is stated that the settlor has dedicated the properties described in the schedule to the deed for the purpose of carrying on the worship of Sri Gopal Jiu Thakur. The deed expressly recites that the properties have, by the deed of dedication, bec.ome the properties of the deity and they vest in the deity absolutely free from all encumbrances, and that no other person has any right therein. The deed undoubtedly contains some inconsistent directions, but the predominant theme of the dedication is that the estate belongs to the deity Sri Gopal Jiu and that no one else has any beneficial interest therein.\n\nThe plea raised by Balai in the two suits was that the deed of dedication Ext. l l(a) was \"a mere colourable one and was never acted upon\" and that by the deed a cloud was \"cast on\" his title.\n\nThe Trial Court accepted the plea. The High Court held that the deed was valid, but thereby only a partial dedication was intended.\n\nThat there is a genuine endowment in favour of the deity Sri Gopal Jiu is now no longer in dispute. The only question canvassed at the Bar is whether the dedication is partial 9r complete. Balai contends that it is partial: the deity represented by Nirmala contends that it is absolute. Where there is a C:eed of dedication, the question whether it creates an absolute or partial dedication must be settled by a conspectus of all the provisions of the deed. If the property is wholly dedicated to the worship of the idol and no beneficial interest is reserved to the settlor, his descendants or other persons, the dedication is complete: if by the deed what is intended to create is a charge in favour of the deity and the residue vests in the settlor, the dedication is partial. Counsel for Balai contends that notwithstanding the repeated assertions in the deed of dedication that the property was endowed in favour of Sri Gopal Jiu and that it was of the ownership of the idol, the deed contained diverse directions which indicated that the dedication was intended to be partial. Counsel relied upon the following indications in the deed in support of the contention:\n\n(!) A hereditary right was granted to the lineal descendants of ti)e settlor in the male line to act as Shebaits, and provision was made for their residence, maintenance and expenses. This was not restricted to the Shebaits only, but enured for the benefit of the members of the Shebaits' families.\n\n(2) The income of the endowed property was In excess of the amounts required for the expenses of the deity.\n\nExpenses of the deity were, it was contended, static, whereas the iohme was expanding, leaving a large\n\n556 IUPllUlll COUllT &HPORTi [1~~5] 3 s.c.a ..\n\nsurplus undisposcd of. Proviion was made for reducing the expensei of the deity in the event of the income of the property contractini:.\n\n(3) The deed was supplementary to another deed executed by Balai for the benefit of the deity, and the expenses of the deity were primarily to come out of the property endowed under that deed.\n\n(4) Direction for accumulation of income of the property endowed, and other properties which may be acquired, without any provision for disposal of the accumulation disclosed an intention on the part of the scttlor to tic up the property in perpetuity for the benefit of the male descendants subject to a fixed charge in favour of the deity.\n\nWe do not propose to express any opinion on the validity or otherwise of the directions. under which provision for accumulation of income is made or benefit is given to persons other than the Shebaits arc concerned. This enquiry is ol)ly directed to the question whether on the assumption that the directions are valid. they indicate an intention on the part of the scttlor to create merely a charge on the estate endowed, reserving the beneficial interest in the scttlor or her heirs.\n\nA reasonable provision for remuneration. maintenance and residence of the Shebaits does not make an endowment bad, for even when property is dedicated absolutely to an idol. and no beneficial interest is reserved to the senior. the property is held by the deity in an ideal sense. The possession and management of the property must. in the very nature of things. be entrusted to a Shebair or manager. and nomination of the settlor himself and his heirs with reasonable remuneration out of the endowed property with right of residence in the property will not invalidate the endowment. A provision for the benefit of persons other than the Shcbait may not be valid. if it infringes the rule against perpetuities or accumulations. or rules against impermissible restrictions. but that docs no, affect the validity of the endowment. The beneficial interest in the provision found invalid reverts to the deity or the settlor according as the endowment is ahsolute or partial. If the endowment is absolute, and a charge creat< d in favour of other persons is invalid the benefit will enure to the deity. and not revert to the settlor or his heirs.\n\nEvidence about the income of the endowment in 'avour of Sri Gopal Jiu is somewhat vague and indefinite. The deed of endowment executed by Rdai for the deity to which the present deed Ext. 11 fa) is supplementary is not before the Court, and there is on the n:cord no evidence about the income from that endowment and the directions made thereunder.\n\nThe defect in the record is directly traceable to the nature of the plea raised by Balai in the\n\nNmMALA V. BALA.I CHAND (Shah, J.)\n\nCourt of First Instance. He had pleaded that the endowment Ext. l l(a) made by his wife Nirmala was a \"sham transaction\" and was not intended to create any interest in the deity: it was not the case of Balai that the endowment though valid was partial and created a mere charge upon the property in favour of the deity.\n\nSuits Nos. 79 & 80 of 1954 were tried with suit No. 67 bf 1955 and the question whether the endowment in favour of Sri Gopal Jiu was partial or absolute appears to have been raised without any pleading in the former suits. There is, however, some evidence on this part of the case, to which our attention has been invited, and on which the argument to support the decree passed by the High Court is founded by counsel for Balai. Under the deed of dedication Ext. 11 (a) \"one good temple and ornaments worth approximately Rs. 500\" are to be provided for out of the property endowed. Janamashtami, Rasjatra and other festivals are to be annually celebrated and in respect of each of these festivals Rs. 101 I are to be expended. The Shebait's remuneration is fixed at Rs. 25 I per month and for the benefit of the family of the Size. bait four maunds of rice, two maunds .of Atta and a sum of Rs. 21\n\nper day for the daily expenses are provided. For performing the Seba of Sri Satyanarayan Jiu on Sankranti day every montF Rs. 10/- have to be spent, and Rs. 51 I have to be spent on the Sivaratri day. Provision has been made for paying Rs. 2/· per month to a pious widow of the family for helping in the Puja and to a widow bf a Shebait expenses at the rate of Rs. 5 I. per month have to be paid. In the aggregate, these would amount to Rs. 2,4001\n\nper annum at the rates prevailing in 1939.\n\nIncome at the date of the endowment from the Bustee land F 153/ 1 was estimated by Nirmala to be Rs. 501 per month, and income from the house Nos. 155 & 15412 was estimated at Rs. 200 I. There is no clear evidence about the Municipal br other taxes, rent collection expenses and repairs. But on the materials found on the record, the plea that the income of the properties was largely in excess of the total expenses to be incurred cannot be G accepted. The settlor had provided that if a Shebait is unable to reside in the hbuse, he will be entitled to get a plot of land out of premises No. 153 at the rate of Rs. 21 per month: whether this rent was nominal or real, need not be investigated. If provision for residence of the Shebait can be made under a deed of endowment without affecting its validity, a provision whereby the Shebait will H be entitled to use the land belonging to the deity at specially lbw rates may not by itself amount to an impermissible reservation by the settlor. The plea that this was a simulate endowment has been abandoned by Balai. Assuming therefore that the charge for rent to be levied from the Shebaits as monthly rental was nominal, the validity of the deed of dedication will not on that ground be affected. Use of land in future by the Shebaits for erecting houses will undoubtedly reduce the land available for letting out at market LjP(N4SCI-9\n\n558 St; PREME COURT REPORTS\n\n(1965) 3 B.O.R.\n\nrates. If the annual income of the deity was Rs. 3,000/- per annum, and some income under the deed of endowment executed by Balai, and the outgoing were Rs. 2,400/- beside taxes, collection charges for rents and the expenses for repairs, it would be reasonable to hold that there was not much disparity between the total income which the deity received in 1939 and the estimated outgoings. The fact that on account of the pressure on land increasing in the town of Calcutta, the rentals of immovable property may have gone up later, will be irrelevant in decidin~ whether a substantial residue was not disposed of by the deed. The direction in paragraph 6 of the deed that in the event of the rent not being realised, the expenses of the deity will be proportionately reduced and there will be proportionate reduction in the remuneration to be paid to the Shebaits also acquires significance.\n\nWhether the provision for accumulation of income of the endowment is valid, does not call for determination in this case.\n\nIf there is an absolute dedication. but the direction for accumulation is invalid, the benefit of the income will enure for the benefit of the deity without restriction: the Income will not revert to the set ti or.\n\nThe High Court observed that the deed commenced with what purported to be an absolute dedication to the deity, but it was clear that the expenses for the Seba-Puja and other expenses of the deities under the deed were not of an expanding character, there being specific recitals in the deed which indicated that the dedication was merely supplementary to the earlier deed of endowment by Balai for the Seba-Puja etc. of the deity. The High Court observed:\n\n\"As a matter of fact there was specific recital in the deed itself, which indicated that it was merely to be supplementary to the earlier Debuttar deed of the husband Balai Chand Ghose, for the purpose of enabling the said Sheba Puja etc. to be carried on regularly and in a satisfactory manner. The epenses are practically all mentioned in the deed itself and however elaborate they may be, having regard to the nature of the properties and the estimate of the income, as appearing in the evidence before us, it is difficult to hold that any large part of said income would be spent on those expenses. This. undoubtedly, is a strong test in favour of holding that what was merely the creation of a charge for those expenses out of the properties, mentioned in the Schedule to the deed. Moreover under this deed (Ext. 11 (a)) (Vide clause 3) so far as the daily and periodical Shebas were concerned their expenses. or at least, the daily Sheba expenses, both fixed : 1d occasional, . . . were to be met out or the husband's <Balai Chand's) earlier Debuttar\n\nc •\n\nNIRMALA v. BALAICHAND (8!1a!1, J.) 559\n\nthus leaving practically not much pressure upon the properties covered by this deed, Ext. I !(a). It is true that in several places of this deed (Ext.\n\nI Ha), reference has been made to the income of the Debuttar tate or advantages to the Debuttar estate or investment, in the Debuttar estate, but they all, in the context. can be read as referring to the Debuttar estate, which was created by the dedication in question, namely, the partial Debuttar or the charge which was created in favour of the particular deity. Where a charge is created and a dedication is made, it will not be inappropriate to refer to the dedicated properties as Debuttar, though only for the limited purpose of providing for that charge. That, indeed, is the meaning of partial dedication, as understood in Hindu Law.\n\nThe mere use of the word 'Debuttar' would not necessarily constitute a particular endowment an absolute Debuttar. On the same principle and in sam(lo. context, the payment of rent by the Shebaits, occupying particular portion of the dedicated properties for purposes of their residence, may also be explained. As a matter of fact on a reading Of the entire deed, in the light of the circumstances of this case and upon a full consideration of the same, we are inclined to hold this deed, Ext. l l(a). upon its true construction, did not create an absolute Debuttar, but created only a charge in favour of the deity Sri Sri Gopal Jiu, named therein, for the various services and other necessities, referred to in several paragraphs of the said deed, Ext. 11 (a)\".\n\nThe High Court opined that because the income of the endowed properties was large and was capable of continuous expansion, and the expenses for the purposes of the dmty were fixed, it may be inferred that the settlor intended to create a mere charge and not an absolute dedication in favour of the deity. In support of this pr<> position, the High Court placed strong reliance upon the judgment of the Judicial Committee in Surendrakeshav Roy v. Doorgasundari\n\nDassee and Another('). In that case Rajah Bijoykeshav Roy bequeathed by his will property to a Thakur, to secure proper performanGe of the Sheba and other ceremtmies and directed his two widows each to adopt a son, both of such sons being appointed Shebaits, subject to the control of the widows during their minority, with monthly allowance from the surplus income. The residue was not disposed of. Before the Judicial Committee it was urged that all the property had been devised under the will of the Raja to the deity and the heirs of the settlor had become Sheba its and were merely entitled to manage the property in the usual way.\n\nIn dealing with that contention the Judicial Committee observed atp.127:\n\nr> L.R. 19 I.A. 108.\n\nSUPREME COUaT RF.PORTS\n\n(11165) 3 B.C.B.\n\n\"It is true that by 'the first sentence of the will all is given to the Thakoor; and though in the plaint the question is mooted whether the gift is made bona fide (and of course such gifts may be a mere scheme for making the family property inalienable~ it has not been really disputed.\n\nNor indeed could it well be disputed in this case. For the last part of the will shews clearlY. enough that the income was to be applied first in performing the sheba of the Thakoor who is mentioned as the object of the gift, and of other family Thakoors. and in meeting the prescribed monthly allowances, and in performing the daily and fixed rites and ceremonies 'as they are now performed and met'.\n\nThe testator must have been well aware that after all these charges had been met there would be a very large surplus. In fact he directs that out of the surplus each adopted son shall receive Rs. 1,000/- monthly; but of the residue after that he says nothing.\n\nThere is no indication that the testator intended any extension of the worship of the family Thakoors. He does not. as is sometime> done, admit others to the benefit of the worship. He docs not direct any additional ceremonies. He shews no intention save that which may be reasonably attributed to a devout Hindu gentleman, viz .. to secure that this family worship shall be conducted in the accustomed way. hy giving his property to one of the Thakoors whom he venerates most. But the effect of that, when the estate is large, is to leave some beneficial interest undisposed of. and that interest must be subject to the legal incidents of property\".\n\nBut the judgment does not lay down any rule that where the income is expanding and the expenses are static, leaving a substantial residue, it must be presumed, notwithstanding the comprehensive and unrestricted nature of the disposition. that the settlor intended to create only a charge in favour of the deity. The question is always one of intention of the settlor to be determined from\n\n~ review of all the dispositions under the deed of settlement.\n\nIn Sri Sri /swari Bhubaneshwari Thakurani v. Brojnnath Dey and Others(') certain properties were dedicated by two brothers to a domestic deity and it was directed that the right of Shebait should go to their male heirs by primogeniture. In dealing with a dispute whether under the deed of settlement. there was an absolute dedication to the deity, the Judicial Committee observed at p. 211:\n\n\"The dedication is not invalidated bv reason of the fact that members of the settlor's family are nominated as\n\nr> L.R. ~I !. \\. 203.\n\nNIRMALA v. BALA! 'CHAND (Shah, J.) 561\n\nShebaits and given reasonable remuneration out of the endowment and also rights of residence in the dedicated property. In view of the privileges attached to dedicated property it has not infrequently happened, as the Law Reports show, that simulate dedications have been made,.and a close scrutiny of any challenged deed of dedication is necessary in order to ascertain whether there has been a genuine divestiture by the settler in favour of the idol. The dedication, moreover, may be either absolute or partial. The property may be given out and out to the idol, or it may be subjected to a charge in favour of the idol. 'The question whether the idol itself shall be considered the true beneficiary, subject to a charge in favour of the heirs or specified relatives, of the testator for their upkeep, or that, on the other hand, these heirs shall be considered the true beneficiaries of the property, subject to a charge for the upkeep, worship and expenses of the idol, is a question which can only be settled by a conspectus of the entire provisions of the will', Pande Har Narayan v. Surja Kanwari (L.R. 43 I. A.' 143). It is also of importance to consider the extent of the property alleged to be dedicated in relation to the expense to be incurred and the ceremonies to be observed in the worship of the idol. The purposes of the dedication may be directed to expand as the income increases, or the purposes may be prescribed in limiting terms so that if the inc., me increases beyond what is required for the fulfilment of these purposes it may not be protected by the dedication\".\n\nIn a recent judgment of this Court in Sree Sree lshwar Sridhar Jew v. Sushi/a Bala Dasi and Others(') it was observed that the question whether the idol itself is the true beneficiary subject to a charge in favour of the heirs of the testator, or the heirs are the true beneficiaries subject to a charge for the upkeep, worship and expenses of the idol, has to be determined by a conspectus of the entire deed or will by which the properties are dedicated and that a provision giving a right to the Shebaits to reside in the premises dedicated to the idol for the purpose of carrying on the daily and periodical worship and festivals does not detract from the absolute character of a dedication to the idol.\n\nI: is inexpedient to construe the terms of one deed by reference to the terms of another, or to lay down general rules appli cable to the construction of settlements varying. in terms. In construing a deed, the Court has to ascertain the intention of the settlor, and for that purpose to take into consideration all the\n\n(') [195*) S.C.R. 4-07.\n\nii~2 8Ul'JU~:.MJ.: COURT REPORTI'\n\n(1965] :I B.O.R.\n\nterms thereof. If, on a review of all the terms, it appears that after endowing property in favour of a religious institution or a deity, the surplus is either expressly or by implication retained with the settlor or given to his heirs, a partial dedication may readily be inferred, apparently comprehensive words of the disposition in favour of the religious endowment notwithstanding.\n\nThe terms of Ext. 11 (a) however disclose a clear intention that the entire property was to belong lo the deity and no one else had beneficial interest or title thereto. The Shebaits and their descendants are given a certain interest in the property, but that direction does not cut down the absolute interest conveyed to the deity, nor can it be interpreted as reserving a beneficial interest in favour of the settlor or his heirs. The direction operates to create> a charge upon the estate of the deity, and not to reduce the eslale itself to a charge.\n\nTo recapitulate, therefore, the property is dedicated absolutely for the deb-seba of the deity: no beneficial interest is reserved to the settlor or his heirs: and the direction for accumulation of the income does not affect the validity of that dedication. Provision for maintenance and residence of the Shebaits being an ordinary incident of such a dedication cannot be interpreted as restrictive of the estate of the deity. It is unnecessary to decide whether the\n\ndirections for appropriation of a part of the income for persons other than the Shebaits may be valid; if it be invalid, the interest will revert to the deity and not to the seltlor. It must, therefore, be held that ExL 11 (a) creates an endowment for the benefit of the deity absolutely, subject to certain charges in favour of the Shebaits\n\nand tlJe descendants of the settlor.\n\nIt is unnecessary, in view of the course which the proceedings in suit No. 67 of 1955 have taken, to set ou\\ the terms of Ext. 11\n\nexecuea by Balai and Nirmala on September 15, 1944. Suit No. 67 of 1955 was filed originally by Balai against the two deities Sri Satya11arayan Jiu and Sri Lakshminarayan Jiu and Nirmala, and Balai sought to represent the two deities. On an objection raised to the constitution of the action by Nirmala, Sunil Sekhitr Bhattacharjce was appointed guardian of the two deities for the action.\n\nBhattacharjee tiled a writcen statement denying the claim made by Balai and submitted that th~ deJication in tavour of the deity was absolute. An issue was raised about the nature of the endowment and the Trial Court declared that the endowment was partial and the beneficial interest remained vested in Balai. The Trial Court had rejected the case of the deities that there was an absolute dedication, and the guardian for the suit did not challenge that decree on behalf of the two deities. Nirmala appealed and contended that there was an absolute dedication in favour of the deity, but she did not represent the deities and could not raise that claim, unless she got herself formally appointed guardian of the deity by order of the Court. The High Court confirmed the decree passed\n\nNIRMALA u. BALA! CHAND (Shah, J.) 563\n\nby the Trial Court, subject to certain modifications which are not material.\n\nIn this appeal, the two deities are also impleaded as pai:tyrespondents, but the deities have not taken part in the proceedmg before this Court, as they did not in the High Court. The decree against the two deities has become final, no appeal having been preferred to the High Court by the deities. It is not open to Nirmala to challenge the decree insofar as it is against the deities, because she does not represent the deities. The rights conferred by the deed. Ext. 11 upon Nirmala are not affected by the decree of the Trial Court. She is not seeking in this appeal to claim a more exalted right under the deed for herself, which may require reexamination even incidentally of the correctness of the decision of the Trial Court and the High Court insofar as it relates to the title of the deities. It was urged, however, that apart from the claim which Nirmala has made for herself, the Court has power and is indeed bound under 0. 41 r. 33 Code of Civil Procedure to pass a decree, if on a consideration of the relevant provisions of the deed, this Court comes to the conclusion that the deed operates as an absolute dedication in favour of the two deities. Order 41 r. 33, insofar as it is material, provides:\n\n\"The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection: \"\n\nThe rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to ad just the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by 0. 41 r. 33 may properly be invoked. The rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from.\n\nThe two claims made against Nirmala and the deities in suit No. 67 of 1955, though capable of being joined in a single action were dist.inct. Aginst th~ deites it was claed that the property was partially dedicated m therr favour; agamst Nirmala it was\n\n8UPRDIE COURT REPORTS (1960] s a.c.a.\n\nclaimed that she was merely a benamidar for the settlor Balai and that she was not a Shebait under the deed of settlement. The High Court has passed a decree declaring that dedication in favour of the deities is partial and has further held, while affirming her right to be a Shebait that Nirmala was merely a benamidar in respect of the properties settled by the deed. There was no inconsistency between the two parts of the decree, and neither in the High Court nor in this Court did Nirmala claim a right for herself which was larger than the right awarded to her by the decree of the Trial Court. In considering the personal rights claimed by Nirmala under the deed Ext. 11, it is not necessary, even incidentally, to consider whether the deities were given an absolute interest. There were therefore two sets of defendant~ in the suits and in substance two decrees though related were passed.\n\nOne of the decrees can stand apart from the other. When a party allows a decree of the Court of First Instance to become final, by not appealing against the decree. it would not be open to another party to the litigation. whose rights are otherwise not affected by the decree. to invoke the powers of the appellate Court under 0. 41 r. 33, to pas! a decree in favour of the party nut appealing so as to give the latter a benefit which he has not claimed. Order 41 r. 33 is primarily intended to confor power upon the appellate Court to do justice by granting relief to a party who has not appealed. when refusing to do so. would result in makin~ inconsistent, contradictory or unworkabk orders. We do not think that power under 0. 41 r. 33 of the Cod~ of Civil Procedure can be exercised in this case in favour of the deities.\n\nAppeals Nos. 966 and 968 of 1964 must therefore be allowed with costs throughout. It is declared that the properties in deed Ext. 11 (aJ were absolutely dedicated in favour of the deity Sri Gopal Jiu. Suits Nos. 79 & 80 of 1954 will therefore stand dismissed. This will. however, be without prejudice to the concession made on behalf of Nirmala that she was a benamidar of her hus band Balai in respect of the properties settled bv the deed Ext. 11 (aJ. Appeal No. 967 of 1964 will stand dismissed with costs in favour of Balai.\n\nBacbawat, J. I agree entirely with what has fallen from IBY learned brother, Shah. J. with regard lo the deed. Ext. I ](a). and I agree that the deed creates an endowment for the benefit of the deity absolutely. subject to certain charges in favour of the Shebaits and the descendants of the elllor.\n\nWith regard to Ex. 11, my learned brother has held that it is not open to Nirmala Bala to challenge the decree passed in Suit No. 67 of 1955. With the greatest respect for my learned brotlicr, I am unable to agree with this conclusion. The trial Court decreed that the dedication under Ex. 11 is partial and not absolute, and I think it was open to Nirmala Bala to challenge the decree. in the\n\nNDUW.A V. Bilil OlWID (Bac/ialllat, J.)\n\nHigh Court, and on the appeal to the High Court being dismissed, it is open to her to challenge the decree of both. the Courts by an appeal to this Court It is true that the deities were represented by independent guardians ad /item for the purposes of this litigation.\n\nBut Ninnala Bala is one cf the joint Shebaits of the deity, and as such, she has a right to assail the decree.\n\nIu Maharaja Jagadindra Nath Roy Bahadur v. Rani Hemanta Kumari Debi('), Sir Arthur Wilson observed:\n\n\"But assuming the religious dedication to have been of the strictest character, it shall remain that the possession and management of the dedicated property belong to the shebait. And this carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the shebait, not in the idol''.\n\nAs a joint Shebait of the deity, Nirmala Bala has the right to file this appeal against the decree which declares that the dedication is partial and not absolute. Such an appeal is necessary for the protection of the property of the deity. The other Shebait and the deities are parties to the appeal, and I am unable to hold that the appeal is not maintainable at the instance of Nirmala Bala.\n\nMoreover, it is well-settled that a Shebaiti right is a right of property. In Th~ Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt('), B. K. Mukherjea, J. observed:\n\n\"It was held by a Full Bench of the Calcutta High Court [Monahai v. Bhupendra(')], that Shebaitship itself is property, and this decision was approved of by the Judicial Committee in Ganesh v. Lal Behary('), and again in Bhabatarini v. Ashalata('). The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasise the proprietary element in .the Shebaiti right and to show that though in some respects an anomaly, it was an anomaly to be accepted as having been admitted into Hindu Law from an early date. This view was adopted in l!B entirety by this Court in Angurbala v. Debabrata(')\" It follows that the shebaiti right of Nirmala B!)la under the deed, Ex. 11 (a) is a right of property. This right is affected by the declaration that the deed, Ex. 11 (a) created a partial and not absolute debuttar. The shebaiti right is an absolute debuttar is certainly different from the shebaiti right in a partial debuttar. The decree\n\n(') [1904.] L.R. 31 I.A. 203, 210\n\n(') 60 Col. 4112.\n\n(') 70 I.A. 67.\n\n(') [19M) S.C.R. 1006, 1018.\n\n(') 63 I.A. 448.\n\n(') [1961) S.C.R. 11!0.\n\nSVPREllE COL\"RT REPORTS\n\n(1965] 3 S.C.R.\n\nunder appeal therefore affects the shebaiti right of Nirmala Bala.\n\nShe is aggrieved by the decree. and is entitled to challenge it in appeal.\n\nIn this view of the matter, I hold that the appeal by Ninnala Bala from the decree in Suit No. 67 of 1955 is maintainable. I would, therefore, have examined the contention of the appellant with regard lo Ex. 11 on the merits, and then disposed of the appeal. But as the majority view is that the appeal is not maintainable, no useful purpose will be served by an examination of the merits of the appellant's case with regard to Ex. 11.\n\nORDER\n\nFollowing the judgment of the majority, Appeals Nos. 966 and 968 of 1964 are allowed with costs throughout. It is declared that the propt:rties in deed Ext. 11 (a) were absolutely dedicated in favour of the deity Sri Gopal Jiu. Suits Nos. 79 & 80 of I 954 will therefore stand dismissed. This will, however. be without prejudice\n\nto the concession made on behalf of Ninnala that she was benami- D dar of her husband Balai in respect of the properties scllied by the deed Ext. I l(a). Appeal No. 967 of 1964 is dismissed with costs in favour of Balai.", "total_entities": 70, "entities": [{"text": "NIRMALA BALA GllOSE Al'cl> ANOTHER", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "NIRMALA BALA GllOSE AND ANOTHER", "offset_not_found": false}}, {"text": "BALAI CHAND GHQSE AND ORS", "label": "RESPONDENT", "start_char": 36, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "BALAI CHAND GHQSE AND ORS", "offset_not_found": false}}, {"text": "1965 (K. SuoBA RAO, J.", "label": "JUDGE", "start_char": 74, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 97, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 517, "end_char": 540, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sree Sree", "label": "OTHER_PERSON", "start_char": 2954, "end_char": 2963, "source": "ner", "metadata": {"in_sentence": "L.R. 64 I.A. ~03 and Sree Sree /shu:ar Sridhar Jew v. Sushi!a Bala Desi and Ors. ["}}, {"text": "Per Subba Rao", "label": "JUDGE", "start_char": 3096, "end_char": 3109, "source": "ner", "metadata": {"in_sentence": "...\n\nNIRMAL.\\ V. ll,\\LAC CHANJl (Shah, J.) 551\n\nA Per Subba Rao rnd Shah, JJ.--When the guardian of the deitie, did not appeal against the finding of the tr:al com;!"}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 3807, "end_char": 3815, "source": "ner", "metadata": {"in_sentence": "When a party allows a decree of the court of First Instance to become final, by not appealing against the decree, it would not be B open to another party to the lit'gation, whose rights are otherwise not affected by tho decree, to invoke the powers of the appellate court under o. 41 r. 33 to pass a decree in favour of the party not'\n\nappealing so as to give the latter a benefit wh'.ch he has not claimed ..\n\n[564D]\n\nPer Bachawat, J. (Partially dissenting)---When the trial court decrees that the endowment in favour of the deities was not abso- C lute, and the guardian ad !", "canonical_name": "Bachawat"}}, {"text": "(1904) L. R. 31 I. A. 203", "label": "CASE_CITATION", "start_char": 4168, "end_char": 4193, "source": "regex", "metadata": {}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 4723, "end_char": 4751, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION: Civil Appeals Nos."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 4863, "end_char": 4882, "source": "ner", "metadata": {"in_sentence": "Appeals from the judgment and decree dated September 23, 1959, of the Calcutta High Court in Appeals from Original Decrees Nos."}}, {"text": "S. V. Guptc", "label": "LAWYER", "start_char": 4942, "end_char": 4953, "source": "ner", "metadata": {"in_sentence": "S. V. Guptc, Solicitor-Genera/, A. K. Sen, and D. N. Mukherji, for the appellants (in all the appeals)."}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 4974, "end_char": 4983, "source": "ner", "metadata": {"in_sentence": "S. V. Guptc, Solicitor-Genera/, A. K. Sen, and D. N. Mukherji, for the appellants (in all the appeals)."}}, {"text": "D. N. Mukherji", "label": "LAWYER", "start_char": 4989, "end_char": 5003, "source": "ner", "metadata": {"in_sentence": "S. V. Guptc, Solicitor-Genera/, A. K. Sen, and D. N. Mukherji, for the appellants (in all the appeals)."}}, {"text": "A. V. Viswanatha Sastri", "label": "LAWYER", "start_char": 5047, "end_char": 5070, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri and S. C. Majumdar, for respondent No."}}, {"text": "S. C. Majumdar", "label": "LAWYER", "start_char": 5075, "end_char": 5089, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri and S. C. Majumdar, for respondent No."}}, {"text": "BA RAo", "label": "JUDGE", "start_char": 5134, "end_char": 5140, "source": "ner", "metadata": {"in_sentence": "I.\n\nThe Judgment of SUB BA RAo and SHAH JJ."}}, {"text": "SHAH", "label": "JUDGE", "start_char": 5145, "end_char": 5149, "source": "ner", "metadata": {"in_sentence": "I.\n\nThe Judgment of SUB BA RAo and SHAH JJ.", "canonical_name": "SHAH"}}, {"text": "BACHAWAT", "label": "JUDGE", "start_char": 5180, "end_char": 5188, "source": "ner", "metadata": {"in_sentence": "was delivered by SHAH, J. BACHAWAT, J. partially dissented.", "canonical_name": "Bachawat"}}, {"text": "Shah", "label": "JUDGE", "start_char": 5215, "end_char": 5219, "source": "ner", "metadata": {"in_sentence": "Shah, J. This group of appeals arises out of suits Nos.", "canonical_name": "SHAH"}}, {"text": "Court of the Eighth Subordinate Judge, Alipore, District 24-Parganas, West Bengal", "label": "COURT", "start_char": 5400, "end_char": 5481, "source": "ner", "metadata": {"in_sentence": "79 and 80 of 1954 and 67 of 1955 filed by the first respondent Balai Chand Ghose (who will hereinafter be called \"Balai\") in the Court of the Eighth Subordinate Judge, Alipore, District 24-Parganas, West Bengal."}}, {"text": "Balai", "label": "OTHER_PERSON", "start_char": 5515, "end_char": 5520, "source": "ner", "metadata": {"in_sentence": "79 and 80 of 1954 Balai prayed that he be declared owner of the properties described in the schedules annexed to the respective plaints."}}, {"text": "Nirmala", "label": "RESPONDENT", "start_char": 5703, "end_char": 5710, "source": "ner", "metadata": {"in_sentence": "67 of 1955 he claimed that it be declared that his wife Nirmala, is a benamidar for him and that the .deed of dedication dated Septmber 15, 1944 did not amol'nt to an absolute dedic3tion of the properties in suit to the deities Sri Satyanarayan Jiu & Sri Lakshminarayan Jiu and that the plaintiff is the sole Shebait of the two deities.", "canonical_name": "NIRMALA u. BALA! CHAND"}}, {"text": "Septmber 15, 1944", "label": "DATE", "start_char": 5774, "end_char": 5791, "source": "ner", "metadata": {"in_sentence": "67 of 1955 he claimed that it be declared that his wife Nirmala, is a benamidar for him and that the .deed of dedication dated Septmber 15, 1944 did not amol'nt to an absolute dedic3tion of the properties in suit to the deities Sri Satyanarayan Jiu & Sri Lakshminarayan Jiu and that the plaintiff is the sole Shebait of the two deities."}}, {"text": "Satyanarayan Jiu", "label": "LAWYER", "start_char": 5879, "end_char": 5895, "source": "ner", "metadata": {"in_sentence": "67 of 1955 he claimed that it be declared that his wife Nirmala, is a benamidar for him and that the .deed of dedication dated Septmber 15, 1944 did not amol'nt to an absolute dedic3tion of the properties in suit to the deities Sri Satyanarayan Jiu & Sri Lakshminarayan Jiu and that the plaintiff is the sole Shebait of the two deities.", "canonical_name": "Satya11arayan Jiu"}}, {"text": "Lakshminarayan Jiu", "label": "LAWYER", "start_char": 5902, "end_char": 5920, "source": "ner", "metadata": {"in_sentence": "67 of 1955 he claimed that it be declared that his wife Nirmala, is a benamidar for him and that the .deed of dedication dated Septmber 15, 1944 did not amol'nt to an absolute dedic3tion of the properties in suit to the deities Sri Satyanarayan Jiu & Sri Lakshminarayan Jiu and that the plaintiff is the sole Shebait of the two deities.", "canonical_name": "Lakshminarayan Jiu"}}, {"text": "Satyanarayan Jiu", "label": "LAWYER", "start_char": 6491, "end_char": 6507, "source": "ner", "metadata": {"in_sentence": "l l. -did not amou<lt to absolute dedication of the properties to the B deities Sri Satyanarayan Jiu and sri Lakshminarayan Jiu.", "canonical_name": "Satya11arayan Jiu"}}, {"text": "High--Court of Judicature at lcutta", "label": "COURT", "start_char": 6541, "end_char": 6576, "source": "ner", "metadata": {"in_sentence": "The High--Court of Judicature at lcutta, in exercise of its appellate jurisdiy(ion,-ipodified the decrees passed by the Trial Court."}}, {"text": "c Gopal Jiu", "label": "OTHER_PERSON", "start_char": 6800, "end_char": 6811, "source": "ner", "metadata": {"in_sentence": "11 (a) was not sham, but it am;)l111ted to a partial dedication in favour o~ the deity Sri c Gopal Jiu i.e. it created a charne on the 'properties endowed for the purposes of the deity mentioned in the deed."}}, {"text": "Gopal Jiu", "label": "LAWYER", "start_char": 7839, "end_char": 7848, "source": "ner", "metadata": {"in_sentence": "The deed then recites that the settlor had been -carrying on the Seba of Sri\" Gopal Jiu installed by her husband, and that the properties dedicated by her husband were not sufficient for satisfactorily carrying on the Seba of Sri Gopal Jiu for ever and for perpetuating the names of her father-in-law and mother-in-law and for carrying on the work of worship of the deity of Sri Gopal Jiu regularly for ever, the provisions then set out were made. '", "canonical_name": "Gopal Jiu Thakur"}}, {"text": "Gopal Thakur", "label": "LAWYER", "start_char": 8398, "end_char": 8410, "source": "ner", "metadata": {"in_sentence": "of the said Sri Sri Gopal Thakur installed by n; iy husband may go on regularly.", "canonical_name": "Gopal Jiu Thakur"}}, {"text": "Gopal Jiu Thakur", "label": "LAWYER", "start_char": 8555, "end_char": 8571, "source": "ner", "metadata": {"in_sentence": "From this day the said two properties become the pebuttar properties of the said deity Sri Sri Gopal Jiu Thakur and they vest in it in a state absolutely free from encumbrances and defects.", "canonical_name": "Gopal Jiu Thakur"}}, {"text": "Gopal Jiu", "label": "LAWYER", "start_char": 8675, "end_char": 8684, "source": "ner", "metadata": {"in_sentence": "The saitl deity Sri Sri\n\nGopal Jiu becomes the full owner of the said two properties.", "canonical_name": "Gopal Jiu Thakur"}}, {"text": "Gopal Jiu Thakur", "label": "LAWYER", "start_char": 9087, "end_char": 9103, "source": "ner", "metadata": {"in_sentence": "500/- for Sri Gopal Jiu Thakur will be made out of the income of the Debuttar properties of Sri Gopal Jiu Thakur and on the temple being constructed, the deity will be installed and established therein and the expenses for worship etc.", "canonical_name": "Gopal Jiu Thakur"}}, {"text": "Paresh", "label": "OTHER_PERSON", "start_char": 10341, "end_char": 10347, "source": "ner", "metadata": {"in_sentence": "after his death his two sons Paresh and Naresh will become Shebaits of the deity."}}, {"text": "Naresh", "label": "OTHER_PERSON", "start_char": 10352, "end_char": 10358, "source": "ner", "metadata": {"in_sentence": "after his death his two sons Paresh and Naresh will become Shebaits of the deity."}}, {"text": "Janmastami", "label": "OTHER_PERSON", "start_char": 11680, "end_char": 11690, "source": "ner", "metadata": {"in_sentence": "Provision was then made that on the occasion of each of the festivals of Janmastami, Rasjatra and of Sri Gopal Jiu Thakur a sum of Rs.", "canonical_name": "Janamashtami"}}, {"text": "Rasjatra", "label": "OTHER_PERSON", "start_char": 11692, "end_char": 11700, "source": "ner", "metadata": {"in_sentence": "Provision was then made that on the occasion of each of the festivals of Janmastami, Rasjatra and of Sri Gopal Jiu Thakur a sum of Rs."}}, {"text": "Slzebait", "label": "OTHER_PERSON", "start_char": 14395, "end_char": 14403, "source": "ner", "metadata": {"in_sentence": "In the event of any Slzebait dying sonless after constructing a house, his widow will be entitled during her lifetime to reside in the house and will also be entitled to get food and Rs 5 /- pcr H month as expenses."}}, {"text": "N!RMALA", "label": "RESPONDENT", "start_char": 14878, "end_char": 14885, "source": "ner", "metadata": {"in_sentence": "\\ D\n\nN!RMALA <'.", "canonical_name": "NIRMALA u. BALA! CHAND"}}, {"text": "nALAI CHAND", "label": "JUDGE", "start_char": 14890, "end_char": 14901, "source": "ner", "metadata": {"in_sentence": "nALAI CHAND (Shah, J.) 555\n\nFinally, the deed states that to the effect stated in the deed the settlor gives to Sri Iswar Gopal Jiu Thakur installed by her husband \"the properties etc.", "canonical_name": "BALAI CHAND GHQSE AND ORS"}}, {"text": "Iswar Gopal Jiu Thakur", "label": "OTHER_PERSON", "start_char": 15006, "end_char": 15028, "source": "ner", "metadata": {"in_sentence": "nALAI CHAND (Shah, J.) 555\n\nFinally, the deed states that to the effect stated in the deed the settlor gives to Sri Iswar Gopal Jiu Thakur installed by her husband \"the properties etc."}}, {"text": "Rdai", "label": "OTHER_PERSON", "start_char": 20288, "end_char": 20292, "source": "ner", "metadata": {"in_sentence": "The deed of endowment executed by Rdai for the deity to which the present deed Ext."}}, {"text": "NmMALA V. BALA.I CHAND", "label": "JUDGE", "start_char": 20597, "end_char": 20619, "source": "ner", "metadata": {"in_sentence": "The defect in the record is directly traceable to the nature of the plea raised by Balai in the\n\nNmMALA V. BALA.I CHAND (Shah, J.)\n\nCourt of First Instance."}}, {"text": "Janamashtami", "label": "OTHER_PERSON", "start_char": 21535, "end_char": 21547, "source": "ner", "metadata": {"in_sentence": "Janamashtami, Rasjatra and other festivals are to be annually celebrated and in respect of each of these festivals Rs.", "canonical_name": "Janamashtami"}}, {"text": "Calcutta", "label": "GPE", "start_char": 24244, "end_char": 24252, "source": "ner", "metadata": {"in_sentence": "The fact that on account of the pressure on land increasing in the town of Calcutta, the rentals of immovable property may have gone up later, will be irrelevant in decidin~ whether a substantial residue was not disposed of by the deed."}}, {"text": "Balai Chand Ghose", "label": "RESPONDENT", "start_char": 25636, "end_char": 25653, "source": "ner", "metadata": {"in_sentence": "The High Court observed:\n\n\"As a matter of fact there was specific recital in the deed itself, which indicated that it was merely to be supplementary to the earlier Debuttar deed of the husband Balai Chand Ghose, for the purpose of enabling the said Sheba Puja etc.", "canonical_name": "BALAI CHAND GHQSE AND ORS"}}, {"text": "clause 3", "label": "PROVISION", "start_char": 26301, "end_char": 26309, "source": "regex", "metadata": {"statute": null}}, {"text": "Balai Chand", "label": "RESPONDENT", "start_char": 26494, "end_char": 26505, "source": "ner", "metadata": {"in_sentence": "were to be met out or the husband's <Balai Chand's) earlier Debuttar\n\nc •\n\nNIRMALA v. BALAICHAND (8!1a!1, J.) 559\n\nthus leaving practically not much pressure upon the properties covered by this deed, Ext.", "canonical_name": "BALAI CHAND GHQSE AND ORS"}}, {"text": "Rajah Bijoykeshav Roy", "label": "OTHER_PERSON", "start_char": 28629, "end_char": 28650, "source": "ner", "metadata": {"in_sentence": "In that case Rajah Bijoykeshav Roy bequeathed by his will property to a Thakur, to secure proper performanGe of the Sheba and other ceremtmies and directed his two widows each to adopt a son, both of such sons being appointed Shebaits, subject to the control of the widows during their minority, with monthly allowance from the surplus income."}}, {"text": "L.R. 19 I.A. 108", "label": "CASE_CITATION", "start_char": 29309, "end_char": 29325, "source": "regex", "metadata": {}}, {"text": "September 15, 1944", "label": "DATE", "start_char": 36653, "end_char": 36671, "source": "ner", "metadata": {"in_sentence": "11\n\nexecuea by Balai and Nirmala on September 15, 1944."}}, {"text": "Satya11arayan Jiu", "label": "LAWYER", "start_char": 36751, "end_char": 36768, "source": "ner", "metadata": {"in_sentence": "67 of 1955 was filed originally by Balai against the two deities Sri Satya11arayan Jiu and Sri Lakshminarayan Jiu and Nirmala, and Balai sought to represent the two deities.", "canonical_name": "Satya11arayan Jiu"}}, {"text": "Lakshminarayan Jiu", "label": "LAWYER", "start_char": 36777, "end_char": 36795, "source": "ner", "metadata": {"in_sentence": "67 of 1955 was filed originally by Balai against the two deities Sri Satya11arayan Jiu and Sri Lakshminarayan Jiu and Nirmala, and Balai sought to represent the two deities.", "canonical_name": "Lakshminarayan Jiu"}}, {"text": "Sunil Sekhitr Bhattacharjce", "label": "OTHER_PERSON", "start_char": 36925, "end_char": 36952, "source": "ner", "metadata": {"in_sentence": "On an objection raised to the constitution of the action by Nirmala, Sunil Sekhitr Bhattacharjce was appointed guardian of the two deities for the action."}}, {"text": "Bhattacharjee", "label": "OTHER_PERSON", "start_char": 37012, "end_char": 37025, "source": "ner", "metadata": {"in_sentence": "Bhattacharjee tiled a writcen statement denying the claim made by Balai and submitted that th~ deJication in tavour of the deity was absolute."}}, {"text": "NIRMALA u. BALA! CHAND", "label": "JUDGE", "start_char": 37799, "end_char": 37821, "source": "ner", "metadata": {"in_sentence": "The High Court confirmed the decree passed\n\nNIRMALA u. BALA!", "canonical_name": "NIRMALA u. BALA! CHAND"}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 38862, "end_char": 38885, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bacbawat", "label": "JUDGE", "start_char": 42962, "end_char": 42970, "source": "ner", "metadata": {"in_sentence": "Bacbawat, J. I agree entirely with what has fallen from IBY learned brother, Shah.", "canonical_name": "Bachawat"}}, {"text": "Shah", "label": "JUDGE", "start_char": 43039, "end_char": 43043, "source": "ner", "metadata": {"in_sentence": "Bacbawat, J. I agree entirely with what has fallen from IBY learned brother, Shah.", "canonical_name": "SHAH"}}, {"text": "Shebaits", "label": "OTHER_PERSON", "start_char": 43218, "end_char": 43226, "source": "ner", "metadata": {"in_sentence": "subject to certain charges in favour of the Shebaits and the descendants of the elllor."}}, {"text": "Nirmala Bala", "label": "RESPONDENT", "start_char": 43337, "end_char": 43349, "source": "ner", "metadata": {"in_sentence": "11, my learned brother has held that it is not open to Nirmala Bala to challenge the decree passed in Suit No.", "canonical_name": "NIRMALA u. BALA! CHAND"}}, {"text": "NDUW.A V. Bilil OlWID", "label": "JUDGE", "start_char": 43658, "end_char": 43679, "source": "ner", "metadata": {"in_sentence": "in the\n\nNDUW.A V. Bilil OlWID (Bac/ialllat, J.)\n\nHigh Court, and on the appeal to the High Court being dismissed, it is open to her to challenge the decree of both."}}, {"text": "Ninnala Bala", "label": "RESPONDENT", "start_char": 43974, "end_char": 43986, "source": "ner", "metadata": {"in_sentence": "But Ninnala Bala is one cf the joint Shebaits of the deity, and as such, she has a right to assail the decree.", "canonical_name": "NIRMALA u. BALA! CHAND"}}, {"text": "Arthur Wilson", "label": "OTHER_PERSON", "start_char": 44158, "end_char": 44171, "source": "ner", "metadata": {"in_sentence": "Iu Maharaja Jagadindra Nath Roy Bahadur v. Rani Hemanta Kumari Debi('), Sir Arthur Wilson observed:\n\n\"But assuming the religious dedication to have been of the strictest character, it shall remain that the possession and management of the dedicated property belong to the shebait."}}, {"text": "B. K. Mukherjea", "label": "JUDGE", "start_char": 45127, "end_char": 45142, "source": "ner", "metadata": {"in_sentence": "In Th~ Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt('), B. K. Mukherjea, J. observed:\n\n\"It was held by a Full Bench of the Calcutta High Court [Monahai v. Bhupendra(')], that Shebaitship itself is property, and this decision was approved of by the Judicial Committee in Ganesh v. Lal Behary('), and again in Bhabatarini v. Ashalata(')."}}, {"text": "Nirmala B!)la", "label": "RESPONDENT", "start_char": 45826, "end_char": 45839, "source": "ner", "metadata": {"in_sentence": "This view was adopted in l!B entirety by this Court in Angurbala v. Debabrata(')\" It follows that the shebaiti right of Nirmala B!)la under the deed, Ex.", "canonical_name": "NIRMALA u. BALA! CHAND"}}, {"text": "L.R. 31 I.A. 203", "label": "CASE_CITATION", "start_char": 46141, "end_char": 46157, "source": "regex", "metadata": {}}, {"text": "SVPREllE", "label": "PETITIONER", "start_char": 46273, "end_char": 46281, "source": "ner", "metadata": {"in_sentence": "SVPREllE COL\"RT REPORTS\n\n(1965] 3 S.C.R.\n\nunder appeal therefore affects the shebaiti right of Nirmala Bala."}}, {"text": "Ninnala", "label": "RESPONDENT", "start_char": 47269, "end_char": 47276, "source": "ner", "metadata": {"in_sentence": "be without prejudice\n\nto the concession made on behalf of Ninnala that she was benami- D dar of her husband Balai in respect of the properties scllied by the deed Ext.", "canonical_name": "NIRMALA u. BALA! CHAND"}}]}
{"document_id": "1965_3_567_575_EN", "year": 1965, "text": "ALAPATIVENKATARAMIAU v.\n\nCOMMISSIONER OF INCOME '!'AX HYDERABAD March 29, 1965 [K. SUBBA RAO, J. c. SHAH .AND S.M. Sucru, JJ.) Indian Income-tax Act, 1922 (11 of 1922), s. 12B-Capital Gains-- Passing of Title-What constitutes-Date of sale or transfer -What is.\n\nOn 17th March 1948, the assessee entered into an agreement to sell his factory to a company, and on the very same day possession of all the assets of the factory was handed over to the company. A few days later an entry was made in the company's account showing that a sum of Rs. 2,00,000/- had be€n paid to the assessee and there were corresponding entries in the assessee's accounts also. In fact only a lakh and odd was paid to the asS<Ossee and even that amount was paid only in Ma:ch 1949. ; n November 1948 a sale deed was executed and registered and in March 1949 the Board of Directors of the Company ratified the sale. For the assessment year 1948-49, the assessee had included in his return, the sum of Rs. 2 lakhs as capital gains. The Income-tax Officer held that the assessee realised an excess of Rs. 79,494/- over and above the original cost, as capital gains assessable under s. 12B of the Income-tax Act, 1922. The Appellate Assistant Commissioner, and the Tribunal confirmed the order. In reference, the High Court held that it was immaterial as to when the money was actually paid because the transfer had already been made to the company by possession, that for the purpose of the section the assessee should have the right to receive the profits and not that he should have in fact received it, that entire property was transferred by giving possession to the company in the year of account, and that the income had arisen to the assessee in the year of account. In appeal to this Court, it was contended that as the sale took place only in March 1949, when the Directors ratified the agreement of sale, no sale or transfer took place before 1st April 1948, as required by s. 12B, and hence the amount was not liable to tax.\n\nHELD: Title to the assets could not pass to the company till the conv:eyance was executed and registered and consequently no sale, in the mstant case, took place of the assets before 1st April 1948 as required by s. 12B. [574B] Commissioner of Incometa.x v. Bhuranoya Coal Co. 34 I.T.R 802, referred to.\n\nBefore s. 12B can be attracted, title must pass to the company by any of the modes mentioned in s. 12B i.e., sale, exchange or transfer.\n\nIt is true that the word 'transfer' is used in addition to the word 'sale' but even sO, in the context, transfer must mean effective conveyance of the capital asset to the transferee. Delivery of possession of immovable property cannot by itself be treated as equivalent to conveyance of the immovable property. [574E] The date of sale or transfer according to s. 12B is the date when the sale or transfer takes place, and the entries in the account books are irrelevant for the purpose of determining such a date. (574F-G] In the present case. machinery. electrical fittings, buildings and site were not sold or transferred in the relevant year of account; only\n\nl'.J•Uf::)IF, COt:H1' RF.ro1rrs [Ioo:i] 3 8.C.R.\n\none asset, namely, furniture was transferred on 17th Ma.-ch 1948 as title to furniture can pass by delivery. Capital gains, if any, made by the transfer of furniture accrued on that date. The position of goodwill is ho\\revcr ditlcrent_ It is an intangible asset and it ordinarily passes along \\\\'ith the tn1nsference of the v..•hole business and so it was not transferred before !st April !948. f575A-E]\n\nOv11. APPELLATE kRISDICTION: Civil Appeal No. 5 of 1964.\n\nAppeal by special leave from the judgment and order dated December I. 1961 of the Andhra Pradesh High Court in Case Referred No. 21 of 1960.\n\nA. V. Viswanatha Sa11ri, K. Jayaram and R. Va.mdeva Pillai for the appellant.\n\nK. N. Rajagopa/ Sastri and R. N. Sacl11hey, for the respondent.\n\nThe Judgment of the '-ourt was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the High Court of Andhra Pradesh an, wer; ng the question referred to it under s. 66 of the Income Tax Act. 1922. against the appellant. The que>tion referred to was \"whether on the facts and in the circumstances of the case a sum of Rs. 79.494!- is assessable as capital gains in the assessment year 1948-49.\"\n\nThe facts relevant to the question are as follows. The assessment year in question is 1948-49 and the accounting year is the official year l'J47-48. The appellant, here'naftcr referred to as the assessee, Alapati Vcnkataramaiah. was the proprietor of Mohan Tile .E Works. engaged in the manufacture of tib and bricks and owned the factory buildings, plant and machinery. The assessee entered into an agreement dated March 17, 1948. with one Shri Manthena Venkata Raju agreeing to sell to the Mohan Industries Limited. hereinafter called the Company, the aforesaid factory, plant, machinery, forniture. stocks and goodwill for a sum of Rs. 2,00,000/-.\n\nThe agreement recited that the assessee bad been carrying on business under the name and style of Mohan Tile Works at Tenali and that the company to be called the Mohan Industries Limited is to be formd under the Imlian C<imp<rnies Act, having for its object among other th'ngs the acqui>ition and the working of the said busine, s. It appears that this agreement was drafted before the Comp.i:iy was incorporated and the recital clause was not modified when the agreement Wus actually executed. It is common ground that the Company was incorporated on July 5. 194.7. before the date of the agreement. Since the answer to the question turns in part on the construction of the agreement it would be convenient to set out the relevant clauses. which arc as follows:\n\n\"I. The vendor shall sell and the company shall purchase: First the Goodwill of the said business (with the exclusive right to represent the company as carrying on such\n\nbusincs5 in continuation of the Vendor or in succession thereto).\n\nVENKATARAMIAH l'. C, I. 'f, (Sikl'1:, J.)\n\nSecondly all the immovable properties specified m Schedule hereto; Thirdly all the plant, machinery, offices furniture. licences. livestocks, carts, implements and utensils to which the vendor is entitled in connection with the said business specified in the Second Schedule hereto; Fourthly all materials and semi-processed materials in stock described in the third schedule.\n\n2. The consideration for the said sale shall be the sum of Rs. 2,00,000.00 which shall be paid and satisfied by payment in cash soon after the capital Rs. 3,00,000.00 has. been raised or in any other manner agreed upon between the Directors of the Company and Vendor.\n\n6. The purchase shall be completed by Seventeenth day of March, 1948 at Tenali when possession of the premises shall as far as practicable be given to the company and the consideration aforesaid shall be paid and satisfied subject to the provisions of the agreement and thereupon the Vendor and all other necessary parties, if any, shall at the expense of the company execute and do all the assurances and things for vesting the said prem'.ses in the company and giving to it the full benefit of this Agreement as shall be reasonably required.\n\n7. If from any cause whatever other than the wilful default of the vendor the purchase shall not be completed by the said 17th day of March, 1948 the company shall pay interest on the said sum of Rs. 2,00,000.00 (Two lakhs) cash at the rate of ..... , ... p.c. per annum.\n\n8. Upon the adopt'on of this agreement by the company in such manners as to render the same binding on the company the said Manthena shall be discharged from all liability in respect thereof.\n\n9. Unless before the day the company shall have becorne entitled to commence business either of the parties hereto may by notice. in writing to the other, determine this agreement and after adopting this agreement the company shall stand in the place of the said vendor for the purpose of this clause. I 0. If this agreement shall not be adopted by the company in the manner aforesaid before and day next, either of the parties may by notice in writing to the other determine the same.\" The assessee was appointed managing agents of the company on July 15, 1947. and on March II, 1948. he wrote a letter on behalf of the company to the Director of Industries and Commerce, Madras, furnishing a detailed list of land, building and machinery comprising the assets of the company together with their value, in\n\nmo SUPREllE COURT REPOllTS\n\n(!965) 3 !.C.R.\n\nconnection with the g, rant of loan by Goverr.ment. On March 20,\n\n1948, the assessee was credited with the price of Rs.200000 /- in the books of the company. On November 22. 1948, sale deed in respect of land was executed in favour of the company. On December 9, 1948, the company mortgaged the land with all its buildings and structures thereon and the machinery. plant and other property for Rs. 1.00.000ito the State of Madras. On March 16, 1949. the Board of Directors, by resolution No. 22 approved the agreement dated March 17, 1948, and on April IO. 1949, the agreement was approved at the annual general meeting of the company. In the first annual report dated March 22, 1949. it was stated as follows:\n\n\"The company was registered on 5th July 1947. The Memorandum of Association and Articles alonwith the prospectus of the company were published and the shareholders and the public arc well aware of the objects and the prospectus of this industry in Andhra. To achieve their\n\nobject~ the directors entered into an agreement called vendor's agreement. with Sri Alapati Venkatramiah, Proprietor of Mohan Tile Works on 17-3-1948.\" It appears that the assessee had returned this income as capital gains in his return and the Income Tax Officer, without any discussion, held that the assessee realised an excess of Rs.79,494/- over and above the original rnst and this was capital gains assess able under s. 12B of the Act.\n\nThe assessee appealed to the Appellate Assistant Commissioner and in the grounds of appeal stated that \"the Income Tax Officer erred in determining the excess over the original cost in respect of the building at Rs. 79,494/- as attracting tax to capital gains. As a matter of fact the building was sold at Rs. J.69,950, but a sum of one lakh alone was received and the balance is yet to be received. The transaction therefore cannot be said to be complete nor can it be said that the profits had been realised. Therefore. the sum of Rs. 79,494/- as attracting capital gains is absolutely unjustified.\" The Appellate Assistant Commissioner observed that the fact that a part of the sale amount had not been realised was irrelevant.\n\nThen he said that \"at one stac it was contended that there was no legal transfer of the buildings, machinery, etc. to the lim'ted c(}mpany. There is no substance in this contention also. The limited company is said to have obtained a loan of more than a lakh of rupees from the Madras Government on the bJsis that they were the owners of the bu; i<lings. machinery. etc. which they had purchased from the appellnt. The statement therefore that there was no legal transfer cannot be true. I am satisfied that the sum of Rs. 79,4941a5 returned bv the appellant under the head capital gains was rightly included in the asse.ssment.\"\n\nThe assessee then appealed to the Appellate Tribunal. The Tribunal, by its order dated November 24, 1955. held that \"there\n\nVENKATARAM!AH V. C. I. T. (Sikri, J.) 171\n\nwas in fact no sale, much less legal transfer of lands, buildings, machinery etc., to the lim; ted liability company which was promoted to take over the tiles business. There was only an agreement to sell. [n fact, the assessee did not receive a single pie during the year of account or even during the period when the capital gains was in force. l; le received in all Rs. I lakh in several instalments beginning from 25-3-1949, which is beycmd the year of account. The point that the assessee himself returned the sum of Rs. 79,494/- under the capital gains leads us nowhere. He might have done it under the advice of some \"income-tax expert\". The assessee cannot be tied down to an inadvisably made wrong statement. In the circumstances, we delete the addition.\"\n\nIt appears that the Commissioner of Income tax filed an application under s. 35 of the Act for the correction of the Tribunal's. order on the ground that the Tribunal had not mentioned in the order certain documents which, if they had been considered, would perhaps support a conclusion different from the one arrived at by the Tribunal. The Tribunal thereupon came to the conclusion that its earlier decision deleting the amount from taxation was based on non-consideration of various materials on record and it proceeded to rectify this order as a mistake apparent from the record. Accordingly it deleted para 4 in its order dated November 24, 1955, and substituted its order dated March 8, 1957. The Tribunal held that in pursuance of cl. 6 of the agreement dated March 17, 1948, the possession of the entire factory was immediately handed over to Mohan Industries and that the sale deed dated November 22, !948 was executed for consideration of Rs. 4,500/- only and refers . only to the land on which the factory is situated, and did not refer to the factory, machinery and plant, etc. which had been taken possession of by Mohan Industries on March 17, 1948. Further it held that the entries in the account books of Mohan Industries under date March 20, 1948, showed that a sum of Rs. 2;00,000/- was credited in favour of the assessee and the asset accounts were debited as follows:\n\nPlant & Machinery a./c\n\nL.P. 27 Rs. 15,989 0 0\n\nFurniture: account ... 29 18,806 0 0\n\nElectriC' gooda \"\n\n31 l,2sg 10 0\n\nSite & Construction ae(ount 33 1,26,470 0 0\n\nStock account \" 34 30,050 0 0\n\nGoodwill a.erount 40 7,396 6 0\n\nTot&!\n\nRo. 2,00,000 0 0\n\n1172 SUP&Elll.E CQUIIT lll'ORT8 [I fl6/i] 3 s.c.a.\n\nFurther it noticed that the assessee also made corresponding entriea A in the books on March 20, 1948, by debiting Rs. 2,00,000/· to Mohan Industries and crediting the various accounts in the same way. The Tribunal also relied on the letter dated March II, 1948, from Mohan Industries to the Director of Industries. and the first annual report dated March 22, 1949. As stated above, the Tribu\n\nnal referred the question set out above.\n\nThe High Court came to the conclusion (!) that in the circwn stances of the case it is immaterial as to when the money was actually paid because the transfer had already been made by putting the company in possession; (2) that the words used in s. 128 are sale, exchange, relinquishment or transfer. If transfer is equivalent .to sale, in that it should only be by a registered instrument, the o Legislature would not have used two different words for that pur pose. All that is required for the purpose of this sect; on is that the assessee should have a right to receive the profits !lid not that he should have in fact received it. The assessce, in their view. had a right lo receive the two lakh of rupees under the agreement immediately and in fact he treated it as having been received; (3) the D entire movable and immovable property was transferred by giving possession to the company in the year of account and in order to perfect the title the only thing that is required was a registered conveyance in respect of land wh; eh wa• done subsequently; and (4) that it is apparent from the entire transaction and the method of accounting adopted both by the assessee and the company that the E income had arisen to the assessee in the year of account and there is no justification even for the contention that atlcast immovable assets should be deemed to have been transferred only in the year in which the actual sale deed was executed. Accordingly, it answered the question in the affirmative.\n\nMr. A.V. Vishwanatha Sastri. the learned counsel for the F assessee contends that under s. 128 of the Income Tax Aci, as it stood at the relevant time. profits and gains arc deemed to be the income of the previous year in which the sale. exchange or transfer took place. He says that the sale took place when on March\n\n16. 1949, the Board of Directors ratified the agreement dated March 17. 1948; till then there was only an agreement to sell and G that an agreement to sell is neither a sale nor a transfer of a capital asset. The relevant part of s. 128 was in the following terms:\n\n\"128. Capital gains-(!) The tax shall be payable by an assessee.under the head \"Capital gains\" in respect of any profits or gains arising from the sale, exchange or transfer of a capital asset effected after the 31st day of March 1946 and before the 1st day of April 1948; and such profits and gains shall be deemed to be income of the previous year in which the sale, exchange or transfer took place ... \"\n\nVENKATARAMIAH V. c. I. T. (Sikri, J.) 573\n\nThe word \"capital asset\" was defined to mean \"property of any kind held by the assessee whether or not connected with his business, profession or vocation but does not include (i) any stock-intrade, consumable stores or raw materials held for the purpose of his business, profession or vocation.\"\n\nThe question which arises is whether any sale or transfer took place before the first day of April, 1948. Upto that date, apart from the agreement to ell, three events had taken place. First, the assessee as managing agents had written on March 11, 1948, i.e., before the agreement wa9 signed, to the Government regarding loan. Secondly, on March 17, 1948\"the possession of the land and the buildings and machinery had been given to the company,\n\nThirdly, on March 20, 1948, the assessee had been credited with the price of Rs. 2,00,000 I in the books of the company and he had also made appropriate entr'es in his own account books Turning now to the agreement dated March 17, 1948, it is urged that_ this is an agreement to sell artd not a sale deed. This !s evident from clause 1 of the ag.reement. Further it is contended that it is a condit; onal agreement to sell.· Reliance is placed on clauses 8 and 9 of the agreement. Clause 8 expressly contemplates adoption of the agreement by the company in such manner as to render the same binding on the company, and clause 9 contemplates that it is only after the adoption of the agreenient that the company shall stand in the place of the said Mantana Venkata Raju. It seems to us that it was a conditional agreement to sell and before it ct>uld ripen into a contract between the company and the assessee, it had ti:: be adopted by the company. We may mention that Mr. Rajagopala\n\nSastri urged that we should discard clauses 8 and 91because they were meant to operate if the agreement had been executed before the incorporation of the company. But we are unable to rewrite the agreement. Clauses 8 and 9 are appropriate in an agreement which is made by an agent subject to confirmation by a principal .and must be given effect to.\n\nWhen was the agreement adopted by the company? We are relieved from addressing ourselves to this question because in the statement of the case, which was agreed to by the assessee and the Revenue, it is stated that \"the said agreement was approved and accepted by a resolution of the Board of Directors of the Company on 16.3.1949 and in and by the said resolution the company agreed to pay purchase price in instalments commencing from 31.3.1949.\n\nThe agreement was subsequently approved by the general body of share holders at a meeting held on 10-4-1949 and on such approval, acceptance and adoption, the agreement became binding on the assessee and the company.\"\n\nEven if the agreement was accepted by the company in 1949, the question still remains whether any sale or transfer of assets took\" place before April 1948. Sale or transfer of an asset could take place, as it did in respect of the site, even before the agreement was\n\nL/P(N)4SC!-IO\n\n574 SUPREME COUllT REPORTS [1965] 3 s.c.n.\n\naccepted. The assets comprised of two items of immovable property,\n\nviz., Plant and machinery valued at Rs. 15,989 / and site and buildings valued at Rs. 1,26,470/-. It is clear that title to these assets could not pass to the company till the conveyance was e.ecuted and regi; tered. (See Commissioner of Income Tax v. Bhurangva Coal Co.(') No such conveyance was executed before April 1, 1948. It is only on November 22, 1948, that a sale deed was executed and registered in respect of the site. Therefore. it is clear that the title to these assets did not pass to the company till after April 1, 1948. and consequently nb sale took place of these assets before April 1, 1948.\n\nMr. Rajagopala Sastri however urges in the alternative that even if no sale took place before April I, 1948, the assets had been transferred to the company before that date. He says that 'transfer' is a wide word and had been used in s. I 2B to cover those cases where rights in assets have been transferred in such a manner as to give rise to capital gains. He further urges that in this case possession of the assets was transferred to the company on March 17. 1948, and the assessee could never get back possession of the immovable assets in view of s. 53A of the Transfer of Property Act.\n\nIn none of the cases cited before us has this point been considered.\n\nWe are unable to sustain this contention. Before s. 12B can be attracted, title must pass to the company by any of the modes mentioned in s. l 2B, i.e. sale, exchange or transfer. It is true that the word 'transfer' is used in addition to the word 'sale' but even so, in the context transfer must mean effective conveyance of the capital asset to the transferee. Delivery of possession of immovable property cannot by itself be treated as equivalent to conveyance of the immovable property. •\n\nThe High Court has relied on the entries made in the account books of the assessee and the company on March 20. 1948, but the date of sale or transfer according to s. l 2B is the date when the sale or transfer takes place, and it seems to us that the entries in the account books are irrelevant for the purpose of determining such a date.\n\nMr. Rajagopala Sastri contends that the assessee should not be allowed at this stage to draw a distinction between movable and immovable assets, but in the statement of the case, which was agreed to by the assessee and the' Revenue, a di, tinction is drawn thus:\n\n\"The building and site was valued at Rs. 1,26,470/-.\n\nThe machinery and electrical titting which were permanently embedded in the earth were respectively valued at !ls. 15,989/- and Rs. 1,298-10-0. The stocks were valued at Rs. 30,050/- and gootlwill at Rs. 7396-6-0.\" We are. therefore. unable to prevent the asscssee from relying upon the distinction between movable and immovable assets. In the\n\n(') 34 1.T.R. 802.\n\nVENKA'rARAMIAH v. c. I. T • . (Sikri, J,) 575\n\nresult, we hold that the following assets were not sold or transfer red before April I, 1948.\n\n(i) Machinery valued at Rs. 15,989-0-0.\n\n(ii) Electrical fittings valued at Rs. 1,289-10-0.\n\n(iii) Buildings and site valued at Rs. 1,26,470-0-0.\n\nTherefore, no capital gains in respect of these items arose in the previous year ending March 31, 1948.\n\nThis brings us to the movable assets. Stocks valued at Rs. 30,050 /- are expressly exempt from the definition of capital asset, and therefore we hold that no capital gain accrued in respect of their sale or transfer. This leaves furniture valued at Rs. 18,805/-, and goodwill valued at Rs. 7,396 / 6 /-. There is no doubt that possession of furniture was delivered on March 17, 1948, and as title to furniture can pass by delivery, capital gains, if any, accrued on that date. In the circumstances of the case, delivery must have been m:1de with the intention of passing title. The position regarding goodwill is however different. It is an intangible asset and it ordinarily passes alongwith the transference of the whole business. It cannot be said in the circumstances of this case that the goodwill was transferred before April I, 1948. Accordingly, we hold that only one asset, namely, furniture was transferred before April I,\n\n1948. In the result, we answer the question referred to the High Court as follows:\n\n\"In the facts and circumstances of the case the sum of Rs. 79 ,494 /- is not assessable as capital gains in the assessment year 1948-49, but only such part of it, if any, as is attributable to the capital gain made by the transfer of furniture valued at Rs. 18,805 I. is assessable.\" The appeal is accordingly accepted and as the assessee has succeeded substantially he will have his costs here and in the High Court.\n\nAppeal allowed.", "total_entities": 87, "entities": [{"text": "ALAPATIVENKATARAMIAU", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "Alapati Vcnkataramaiah", "offset_not_found": false}}, {"text": "v.\n\nCOMMISSIONER OF INCOME '!'AX HYDERABAD", "label": "RESPONDENT", "start_char": 21, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME TAX HYDERABAD", "offset_not_found": false}}, {"text": "K. SUBBA RAO, J.", "label": "JUDGE", "start_char": 80, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "c. SHAH", "label": "JUDGE", "start_char": 97, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 127, "end_char": 154, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 169, "end_char": 175, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-tax Act, 1922", "statute": "Indian Income-tax Act, 1922"}}, {"text": "17th March 1948", "label": "DATE", "start_char": 265, "end_char": 280, "source": "ner", "metadata": {"in_sentence": "On 17th March 1948, the assessee entered into an agreement to sell his factory to a company, and on the very same day possession of all the assets of the factory was handed over to the company."}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 1154, "end_char": 1160, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-tax Act, 1922", "statute": "Indian Income-tax Act, 1922"}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 1168, "end_char": 1188, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "1st April 1948", "label": "DATE", "start_char": 1925, "end_char": 1939, "source": "ner", "metadata": {"in_sentence": "In appeal to this Court, it was contended that as the sale took place only in March 1949, when the Directors ratified the agreement of sale, no sale or transfer took place before 1st April 1948, as required by s. 12B, and hence the amount was not liable to tax."}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 1956, "end_char": 1962, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 2222, "end_char": 2228, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 2321, "end_char": 2327, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 2410, "end_char": 2416, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 2813, "end_char": 2819, "source": "regex", "metadata": {"statute": null}}, {"text": "17th Ma.-ch 1948", "label": "DATE", "start_char": 3214, "end_char": 3230, "source": "ner", "metadata": {"in_sentence": "J•Uf::)IF, COt:H1' RF.ro1rrs [Ioo:i] 3 8.C.R.\n\none asset, namely, furniture was transferred on 17th Ma.-ch 1948 as title to furniture can pass by delivery."}}, {"text": "A. V. Viswanatha Sa11ri", "label": "OTHER_PERSON", "start_char": 3771, "end_char": 3794, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sa11ri, K. Jayaram and R. Va.mdeva Pillai for the appellant."}}, {"text": "K. Jayaram", "label": "OTHER_PERSON", "start_char": 3796, "end_char": 3806, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sa11ri, K. Jayaram and R. Va.mdeva Pillai for the appellant."}}, {"text": "R. Va.mdeva Pillai", "label": "LAWYER", "start_char": 3811, "end_char": 3829, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sa11ri, K. Jayaram and R. Va.mdeva Pillai for the appellant."}}, {"text": "K. N. Rajagopa/", "label": "LAWYER", "start_char": 3850, "end_char": 3865, "source": "ner", "metadata": {"in_sentence": "K. N. Rajagopa/ Sastri and R. N. Sacl11hey, for the respondent."}}, {"text": "R. N. Sacl11hey", "label": "LAWYER", "start_char": 3877, "end_char": 3892, "source": "ner", "metadata": {"in_sentence": "K. N. Rajagopa/ Sastri and R. N. Sacl11hey, for the respondent."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 3959, "end_char": 3964, "source": "ner", "metadata": {"in_sentence": "The Judgment of the '-ourt was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the High Court of Andhra Pradesh an, wer; ng the question referred to it under s. 66 of the Income Tax Act."}}, {"text": "High Court of Andhra Pradesh", "label": "COURT", "start_char": 4038, "end_char": 4066, "source": "ner", "metadata": {"in_sentence": "The Judgment of the '-ourt was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the High Court of Andhra Pradesh an, wer; ng the question referred to it under s. 66 of the Income Tax Act."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 4113, "end_char": 4118, "source": "regex", "metadata": {"statute": null}}, {"text": "Alapati Vcnkataramaiah", "label": "PETITIONER", "start_char": 4551, "end_char": 4573, "source": "ner", "metadata": {"in_sentence": "The appellant, here'naftcr referred to as the assessee, Alapati Vcnkataramaiah.", "canonical_name": "Alapati Vcnkataramaiah"}}, {"text": "Mohan Tile .E Works", "label": "ORG", "start_char": 4597, "end_char": 4616, "source": "ner", "metadata": {"in_sentence": "was the proprietor of Mohan Tile .E Works."}}, {"text": "March 17, 1948", "label": "DATE", "start_char": 4762, "end_char": 4776, "source": "ner", "metadata": {"in_sentence": "The assessee entered into an agreement dated March 17, 1948."}}, {"text": "Manthena Venkata Raju", "label": "OTHER_PERSON", "start_char": 4792, "end_char": 4813, "source": "ner", "metadata": {"in_sentence": "with one Shri Manthena Venkata Raju agreeing to sell to the Mohan Industries Limited.", "canonical_name": "Manthena Venkata Raju"}}, {"text": "Mohan Industries Limited", "label": "ORG", "start_char": 4838, "end_char": 4862, "source": "ner", "metadata": {"in_sentence": "with one Shri Manthena Venkata Raju agreeing to sell to the Mohan Industries Limited."}}, {"text": "Mohan Tile Works", "label": "ORG", "start_char": 5096, "end_char": 5112, "source": "ner", "metadata": {"in_sentence": "The agreement recited that the assessee bad been carrying on business under the name and style of Mohan Tile Works at Tenali and that the company to be called the Mohan Industries Limited is to be formd under the Imlian C<imp<rnies Act, having for its object among other th'ngs the acqui>ition and the working of the said busine, s. It appears that this agreement was drafted before the Comp.i:iy was incorporated and the recital clause was not modified when the agreement Wus actually executed."}}, {"text": "Tenali", "label": "GPE", "start_char": 5116, "end_char": 5122, "source": "ner", "metadata": {"in_sentence": "The agreement recited that the assessee bad been carrying on business under the name and style of Mohan Tile Works at Tenali and that the company to be called the Mohan Industries Limited is to be formd under the Imlian C<imp<rnies Act, having for its object among other th'ngs the acqui>ition and the working of the said busine, s. It appears that this agreement was drafted before the Comp.i:iy was incorporated and the recital clause was not modified when the agreement Wus actually executed."}}, {"text": "July 5. 194.7", "label": "DATE", "start_char": 5551, "end_char": 5564, "source": "ner", "metadata": {"in_sentence": "It is common ground that the Company was incorporated on July 5."}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 6302, "end_char": 6317, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventeenth day of March, 1948", "label": "DATE", "start_char": 6728, "end_char": 6758, "source": "ner", "metadata": {"in_sentence": "The purchase shall be completed by Seventeenth day of March, 1948 at Tenali when possession of the premises shall as far as practicable be given to the company and the consideration aforesaid shall be paid and satisfied subject to the provisions of the agreement and thereupon the Vendor and all other necessary parties, if any, shall at the expense of the company execute and do all the assurances and things for vesting the said prem'.ses in the company and giving to it the full benefit of this Agreement as shall be reasonably required."}}, {"text": "17th day of March, 1948", "label": "DATE", "start_char": 7357, "end_char": 7380, "source": "ner", "metadata": {"in_sentence": "If from any cause whatever other than the wilful default of the vendor the purchase shall not be completed by the said 17th day of March, 1948 the company shall pay interest on the said sum of Rs."}}, {"text": "July 15, 1947", "label": "DATE", "start_char": 8249, "end_char": 8262, "source": "ner", "metadata": {"in_sentence": "The assessee was appointed managing agents of the company on July 15, 1947."}}, {"text": "March II, 1948", "label": "DATE", "start_char": 8271, "end_char": 8285, "source": "ner", "metadata": {"in_sentence": "and on March II, 1948."}}, {"text": "Madras", "label": "GPE", "start_char": 8374, "end_char": 8380, "source": "ner", "metadata": {"in_sentence": "he wrote a letter on behalf of the company to the Director of Industries and Commerce, Madras, furnishing a detailed list of land, building and machinery comprising the assets of the company together with their value, in\n\nmo SUPREllE COURT REPOllTS\n\n(!"}}, {"text": "March 20,\n\n1948", "label": "DATE", "start_char": 8609, "end_char": 8624, "source": "ner", "metadata": {"in_sentence": "On March 20,\n\n1948, the assessee was credited with the price of Rs.200000 /- in the books of the company."}}, {"text": "November 22. 1948", "label": "DATE", "start_char": 8715, "end_char": 8732, "source": "ner", "metadata": {"in_sentence": "On November 22."}}, {"text": "December 9, 1948", "label": "DATE", "start_char": 8805, "end_char": 8821, "source": "ner", "metadata": {"in_sentence": "On December 9, 1948, the company mortgaged the land with all its buildings and structures thereon and the machinery."}}, {"text": "State of Madras", "label": "ORG", "start_char": 8968, "end_char": 8983, "source": "ner", "metadata": {"in_sentence": "1.00.000ito the State of Madras."}}, {"text": "March 16, 1949", "label": "DATE", "start_char": 8988, "end_char": 9002, "source": "ner", "metadata": {"in_sentence": "On March 16, 1949."}}, {"text": "17, 1948", "label": "DATE", "start_char": 9084, "end_char": 9092, "source": "ner", "metadata": {"in_sentence": "22 approved the agreement dated March 17, 1948, and on April IO."}}, {"text": "April IO. 1949", "label": "DATE", "start_char": 9101, "end_char": 9115, "source": "ner", "metadata": {"in_sentence": "22 approved the agreement dated March 17, 1948, and on April IO."}}, {"text": "March 22, 1949", "label": "DATE", "start_char": 9223, "end_char": 9237, "source": "ner", "metadata": {"in_sentence": "In the first annual report dated March 22, 1949."}}, {"text": "5th July 1947", "label": "DATE", "start_char": 9297, "end_char": 9310, "source": "ner", "metadata": {"in_sentence": "it was stated as follows:\n\n\"The company was registered on 5th July 1947."}}, {"text": "Andhra", "label": "GPE", "start_char": 9514, "end_char": 9520, "source": "ner", "metadata": {"in_sentence": "The Memorandum of Association and Articles alonwith the prospectus of the company were published and the shareholders and the public arc well aware of the objects and the prospectus of this industry in Andhra."}}, {"text": "Alapati Venkatramiah", "label": "PETITIONER", "start_char": 9624, "end_char": 9644, "source": "ner", "metadata": {"in_sentence": "with Sri Alapati Venkatramiah, Proprietor of Mohan Tile Works on 17-3-1948.\"", "canonical_name": "Alapati Vcnkataramaiah"}}, {"text": "17-3-1948", "label": "DATE", "start_char": 9680, "end_char": 9689, "source": "ner", "metadata": {"in_sentence": "with Sri Alapati Venkatramiah, Proprietor of Mohan Tile Works on 17-3-1948.\""}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 9964, "end_char": 9970, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras Government", "label": "ORG", "start_char": 10994, "end_char": 11011, "source": "ner", "metadata": {"in_sentence": "The limited company is said to have obtained a loan of more than a lakh of rupees from the Madras Government on the bJsis that they were the owners of the bu; i<lings."}}, {"text": "November 24, 1955", "label": "DATE", "start_char": 11434, "end_char": 11451, "source": "ner", "metadata": {"in_sentence": "The Tribunal, by its order dated November 24, 1955."}}, {"text": "s. 35", "label": "PROVISION", "start_char": 12354, "end_char": 12359, "source": "regex", "metadata": {"statute": null}}, {"text": "March 8, 1957", "label": "DATE", "start_char": 12964, "end_char": 12977, "source": "ner", "metadata": {"in_sentence": "Accordingly it deleted para 4 in its order dated November 24, 1955, and substituted its order dated March 8, 1957."}}, {"text": "cl. 6", "label": "PROVISION", "start_char": 13018, "end_char": 13023, "source": "regex", "metadata": {"statute": null}}, {"text": "Mohan Industries", "label": "ORG", "start_char": 13131, "end_char": 13147, "source": "ner", "metadata": {"in_sentence": "6 of the agreement dated March 17, 1948, the possession of the entire factory was immediately handed over to Mohan Industries and that the sale deed dated November 22, !"}}, {"text": "November 22, !", "label": "DATE", "start_char": 13177, "end_char": 13191, "source": "ner", "metadata": {"in_sentence": "6 of the agreement dated March 17, 1948, the possession of the entire factory was immediately handed over to Mohan Industries and that the sale deed dated November 22, !"}}, {"text": "s. 128", "label": "PROVISION", "start_char": 14655, "end_char": 14661, "source": "regex", "metadata": {"statute": null}}, {"text": "A.V. Vishwanatha Sastri", "label": "OTHER_PERSON", "start_char": 15917, "end_char": 15940, "source": "ner", "metadata": {"in_sentence": "Mr. A.V. Vishwanatha Sastri."}}, {"text": "s. 128", "label": "PROVISION", "start_char": 16001, "end_char": 16007, "source": "regex", "metadata": {"statute": null}}, {"text": "March\n\n16. 1949", "label": "DATE", "start_char": 16225, "end_char": 16240, "source": "ner", "metadata": {"in_sentence": "He says that the sale took place when on March\n\n16."}}, {"text": "March 17. 1948", "label": "DATE", "start_char": 16294, "end_char": 16308, "source": "ner", "metadata": {"in_sentence": "1949, the Board of Directors ratified the agreement dated March 17."}}, {"text": "s. 128", "label": "PROVISION", "start_char": 16462, "end_char": 16468, "source": "regex", "metadata": {"statute": null}}, {"text": "31st day of March 1946", "label": "DATE", "start_char": 16710, "end_char": 16732, "source": "ner", "metadata": {"in_sentence": "The tax shall be payable by an assessee.under the head \"Capital gains\" in respect of any profits or gains arising from the sale, exchange or transfer of a capital asset effected after the 31st day of March 1946 and before the 1st day of April 1948; and such profits and gains shall be deemed to be income of the previous year in which the sale, exchange or transfer took place ... \"\n\nVENKATARAMIAH V. c. I. T. (Sikri, J.) 573\n\nThe word \"capital asset\" was defined to mean \"property of any kind held by the assessee whether or not connected with his business, profession or vocation but does not include (i) any stock-intrade, consumable stores or raw materials held for the purpose of his business, profession or vocation.\""}}, {"text": "1st day of April 1948", "label": "DATE", "start_char": 16748, "end_char": 16769, "source": "ner", "metadata": {"in_sentence": "The tax shall be payable by an assessee.under the head \"Capital gains\" in respect of any profits or gains arising from the sale, exchange or transfer of a capital asset effected after the 31st day of March 1946 and before the 1st day of April 1948; and such profits and gains shall be deemed to be income of the previous year in which the sale, exchange or transfer took place ... \"\n\nVENKATARAMIAH V. c. I. T. (Sikri, J.) 573\n\nThe word \"capital asset\" was defined to mean \"property of any kind held by the assessee whether or not connected with his business, profession or vocation but does not include (i) any stock-intrade, consumable stores or raw materials held for the purpose of his business, profession or vocation.\""}}, {"text": "March 11, 1948", "label": "DATE", "start_char": 17486, "end_char": 17500, "source": "ner", "metadata": {"in_sentence": "First, the assessee as managing agents had written on March 11, 1948, i.e., before the agreement wa9 signed, to the Government regarding loan."}}, {"text": "March 17, 1948\"the", "label": "DATE", "start_char": 17588, "end_char": 17606, "source": "ner", "metadata": {"in_sentence": "Secondly, on March 17, 1948\"the possession of the land and the buildings and machinery had been given to the company,\n\nThirdly, on March 20, 1948, the assessee had been credited with the price of Rs."}}, {"text": "March 20, 1948", "label": "DATE", "start_char": 17706, "end_char": 17720, "source": "ner", "metadata": {"in_sentence": "Secondly, on March 17, 1948\"the possession of the land and the buildings and machinery had been given to the company,\n\nThirdly, on March 20, 1948, the assessee had been credited with the price of Rs."}}, {"text": "clause 1", "label": "PROVISION", "start_char": 18021, "end_char": 18029, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 8", "label": "PROVISION", "start_char": 18175, "end_char": 18183, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 9", "label": "PROVISION", "start_char": 18313, "end_char": 18321, "source": "regex", "metadata": {"statute": null}}, {"text": "Mantana Venkata Raju", "label": "OTHER_PERSON", "start_char": 18442, "end_char": 18462, "source": "ner", "metadata": {"in_sentence": "Clause 8 expressly contemplates adoption of the agreement by the company in such manner as to render the same binding on the company, and clause 9 contemplates that it is only after the adoption of the agreenient that the company shall stand in the place of the said Mantana Venkata Raju.", "canonical_name": "Manthena Venkata Raju"}}, {"text": "Rajagopala", "label": "OTHER_PERSON", "start_char": 18667, "end_char": 18677, "source": "ner", "metadata": {"in_sentence": "We may mention that Mr. Rajagopala\n\nSastri urged that we should discard clauses 8 and 91because they were meant to operate if the agreement had been executed before the incorporation of the company.", "canonical_name": "Rajagopala Sastri"}}, {"text": "Sastri", "label": "OTHER_PERSON", "start_char": 18679, "end_char": 18685, "source": "ner", "metadata": {"in_sentence": "We may mention that Mr. Rajagopala\n\nSastri urged that we should discard clauses 8 and 91because they were meant to operate if the agreement had been executed before the incorporation of the company."}}, {"text": "16.3.1949", "label": "DATE", "start_char": 19351, "end_char": 19360, "source": "ner", "metadata": {"in_sentence": "We are relieved from addressing ourselves to this question because in the statement of the case, which was agreed to by the assessee and the Revenue, it is stated that \"the said agreement was approved and accepted by a resolution of the Board of Directors of the Company on 16.3.1949 and in and by the said resolution the company agreed to pay purchase price in instalments commencing from 31.3.1949."}}, {"text": "31.3.1949", "label": "DATE", "start_char": 19467, "end_char": 19476, "source": "ner", "metadata": {"in_sentence": "We are relieved from addressing ourselves to this question because in the statement of the case, which was agreed to by the assessee and the Revenue, it is stated that \"the said agreement was approved and accepted by a resolution of the Board of Directors of the Company on 16.3.1949 and in and by the said resolution the company agreed to pay purchase price in instalments commencing from 31.3.1949."}}, {"text": "10-4-1949", "label": "DATE", "start_char": 19577, "end_char": 19586, "source": "ner", "metadata": {"in_sentence": "The agreement was subsequently approved by the general body of share holders at a meeting held on 10-4-1949 and on such approval, acceptance and adoption, the agreement became binding on the assessee and the company.\""}}, {"text": "April 1, 1948", "label": "DATE", "start_char": 20406, "end_char": 20419, "source": "ner", "metadata": {"in_sentence": "See Commissioner of Income Tax v. Bhurangva Coal Co.(') No such conveyance was executed before April 1, 1948."}}, {"text": "November 22, 1948", "label": "DATE", "start_char": 20435, "end_char": 20452, "source": "ner", "metadata": {"in_sentence": "It is only on November 22, 1948, that a sale deed was executed and registered in respect of the site."}}, {"text": "Rajagopala Sastri", "label": "OTHER_PERSON", "start_char": 20710, "end_char": 20727, "source": "ner", "metadata": {"in_sentence": "Mr. Rajagopala Sastri however urges in the alternative that even if no sale took place before April I, 1948, the assets had been transferred to the company before that date.", "canonical_name": "Rajagopala Sastri"}}, {"text": "April I, 1948", "label": "DATE", "start_char": 20800, "end_char": 20813, "source": "ner", "metadata": {"in_sentence": "Mr. Rajagopala Sastri however urges in the alternative that even if no sale took place before April I, 1948, the assets had been transferred to the company before that date."}}, {"text": "s. 53A", "label": "PROVISION", "start_char": 21259, "end_char": 21265, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 21273, "end_char": 21297, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 21419, "end_char": 21425, "source": "regex", "metadata": {"statute": null}}, {"text": "March 20.", "label": "DATE", "start_char": 21966, "end_char": 21975, "source": "ner", "metadata": {"in_sentence": "The High Court has relied on the entries made in the account books of the assessee and the company on March 20."}}, {"text": "March 31, 1948", "label": "DATE", "start_char": 23264, "end_char": 23278, "source": "ner", "metadata": {"in_sentence": "Therefore, no capital gains in respect of these items arose in the previous year ending March 31, 1948."}}]}
{"document_id": "1965_3_576_587_EN", "year": 1965, "text": "DR. G. B. GRANT v.\n\nSTATE OF BIHAR March 30, 1965\n\n[K. SUBBA R.Ao, J. C. SHAH AND R. S. BACHAWAT, JJ.) Land Acquisition Act, 1894 ss. II, 18, Ja-Bihar Land Reforms Act, l950, s. 3-Award fi; rinp compenaation for land acquired-Land Reform-Acquired land vestinp in State-State whether entitled to compensation under award-Reference under s. 30 to decide claim of State whether competent. The appellant owned certain lands in the State of Bihar in respect of which proceedings under the Land Acquisition Act were started. Under s. II of the Act the Collector fixed the area of the land to be acquired and the compensation payable, and also apportioned the compensation between the appellant and the members of the vHlage community who had claimed compensation for some portions of the land. The award was then filed under s. 12. The appellant and members of the village community being dissatisfied asked the Collector to make reference• under s. 18 to the Court. After the award was given but before possession under s. 16 of the Act was taken the Bihar Land Reforms Act, 1950 was passed and by the operation of s. 3 of the Act the appellant's land became vested in the State. On behalf of the State an application wa• made to the Collector to make a reference to the Court under s. 30 of the Act claimin~ that the compensation under the award was payable to it as it had acquired the appellant's title to the land. The District Court held that the compensation was not payable to the State but, on appeal, the High Court held in favour of the State. The appellant came to this Court with certificate.\n\nIt was contended on behalf of the appellant that (1) the O>llector had no authority to refer the matter under s: 30 after he had apportioned the amount of compensation under s. II; (2) since title to compensation is derived solely from and on the date of the award, the notification under s. 3 of the Bihar Land Reforms Act did not deprive the appellant of his right to receive compensation; and (3) the State Government was not 'a person interested' within the meaning of the Land Acquisition Act, and could not apply for a reference under s. 30.\n\nHELD: Per Shah and Bachawat, JJ.-ii) There are two provisiol'IS in the Act under which the Collector can make a reference to the Court, namely. s. 18 and s. 30. The powers under the two sections are distinct and may be invoked in contingencies which do not overlap.\n\nA person shown in that part of the award which relates to apportionment of compensation who is present either personally or through a representative or on whom notice is issued under s. 12(2), must, if he does not accept the award, apply to the Collector to refer the matter to the Court under s. 18 within the time prescribed thereunder. But a person who has not appeared in the acquisition proceedings before tlie Collector may, if he is not served with notice of filing, raise a dispute as to apportionment or as to the persons to whom it is payable and apply to the Court for a reference under s. 30, for determination of his right to compensation which may have existed before the awan.l. or which may have devolved upon him since the award. For a reference under s. 30 no period of limitatio:i is prescribed. [583E-\n\n584A]\n\n~76\n\nG. H. GRANT ti. SrATE 577\n\n(ii) It is not predicated of the exercise of the power to make a reference under s. 30 that the Collector has not apportioned the compensation money by his award. [584D]\n\nBoregowda and Anr. v. Subbaramiah and Ors., A.I.R. (1959) Mysore, 265, disapproved.\n\n(iii) The award made by the .Collector under s. ~1 is not the source of the right to compensat10n. An award Is stncUy speakmg only an offer made by th~ .Government to the person mterested m the land notified for acqmsit10n; the person mterested IS not bo<:nd to accept it and the Government can also \\V1thdraw the acqu1s1t1on under s. 48. It is only when possession of the land has been taken by the Government under s. 16 that the right of the owner of the land is extinguished. Therefore the appellant's contention that title to compensation is derived solely from and on the date of the award, could not be accepted. [584H-585C]\n\n(iv) The liability of the Government under s. 31 to pay compensation to the person entitled thereto under the award does not imply that only the persons to whom compensation is directed to be paid under the award mav raise a dispute under s. 30. The scheme of apportionment by the Collector under s. 11 is conclusive only between th: Collector and the persons interested and not among the persons interested. Payment of compensation under s. 31 to the persons declared in the award to be entitled thereto discharges the State of its liabilitv to pay compensation leaving it open to the claimant to compensation to agitate his right in a reference under s. 30 or by a separate suit. r586B-F]\n\n(v) Under the Bihar Land Reforms Act the title of the appellant to the land notifiea for acquisition became vested in the State and therefore the right to compensation for the land ;>Cquired devolved upon the State. A dispute then arose between the State Government and the appellant \"as to the persons to whom:t compensation was Pavable. The State had no right to the compensation payable for the land under a title existing before the date of the award of the Collector and no application could be made bv it as a person interested within the meaning of s. 18. But a dispute between the appellant and the State as to their conflicting claims to the compensation money was clearlv a dispute which could be referred under s. 30 of the Act to the Court. There is nothing in s. 30 which excludes a reference to the Court of a dispute raised by a oerson on whom the title of the oi, vner of the land has s; nce the award, devolved. [584G; 586A. G, HJ\n\nPromotha Nath Mitra v. Rakhal Das Addy, 11 Cal. L.J. 420, referred to.\n\nPer Subba Rao, J.-(i) The Land Acquisition Officer cannot make a reference under s. 30 of the Act in the matter of apportionment of compensation aft';;'r the award has been made by him apuortioning the compensation under s. 11 and has been filed under s. 12.\n\nThe Land Acquisition Act discloses a well knit scheme in the matter of making an award. The Land acquisition Officer after issuin~ notice calling for objections decides on the three matters nrescribed in s. 11 i.e. the true area of the land. the .amount of comp€nsation ad the apportionmet of the comoensation. Before making the apportionment he can resort to any of the follo\\ving thrPA method~·\n\n(i) to accept an agreed formula:\n\n(ii) to decide for himself; and\n\n5i8 8UI'RF.tE COl:RT Rl-:PORTS {.\\%\\'i\\ '3 S.C.R\n\n(iii) to refer to the Court if he thinks that the decision of the\n\nCourt is neccssar.v-. But once the a\\i.ard is made, it becomes final and it can be reopened only in the manner pr., scribed\n\ni.e. by way of a referrnce und\"r s. 18 of the Act.\n\nIt is not rorrcct to sav that on the above viev.• a person who .acquires a right after the award by transfer inter vivos or by devolution of interest w:ll be \\\\'ithout a rcmrdy. Such a person ma:-· ask for a reference under s. 18 !fr may apply to be brought on rernnl after the rcfcrt=>ncc is madr to the Court. Ile ma~· proceed to thP. Civil Court to rcrovcr the compensation from thr pc-rsons v.ho rcceivd it en the basis of his title. On the other hand th<> contrar: view wiE lead to an incongruous position. It enables the Lar.d Acquisition Officer to reopen a final award in thr teeth of the express provisions of s. 12 of tht' Act. It further enables him to make a reference without any period of J; mitation and thus to disturb tl:c rights finally settled by the award. roBOB-G]\n\nOv11. APPELLATE Jt:RISDICTION: Ci\\il Appeals Nos. 262 to .l64 of 1964.\n\nAppe3Js from the judgment and decrees dated January 5, and January 22, 1959. and 24th November 1960 of the Patna High Court in appeals from Original Decrees Nos. 401 of 1953. and 297 and 298 of J 954 respectively.\n\nS. R. Ghosa/ and R. C. Prasad. for the appellant lin all the appeals).\n\nD. P. Singh, R. K. Gar/?. S.C. Agarwa.'a and M.K. Ramam11rthi for th~ respondent (in all the appeals).\n\nSuuBA RAO J. delivered a dissenting opinion. The Judgment of S11A11. and BAC'llAWAT JJ. was delivered by SHAH J.\n\nSubba Rao, J. I regret my inability to agree with brother Shah.\n\nJ .. on one of the questions raised in the appeals. namely. whether the Land Acquisition Officer can. after making the award under s. 12 of the Land Acquisition Act. 1894. hereinafter called the Act, fixing the compensation for the land acquired and apportioning the same among the persons interested in the land. refer the question of apportionment under s. 30 of the Act to the decision of the Court. Shah. J .. held he could; but. with great respect to him. I take a different view.\n\nThe facts arc fully stated in the judgment of Shah. J.. and they need not. therefore. be restated here.\n\nThe answer to the problem raised falls to be decided on a conspectus of the relevant provisions of the Act. Section 9 of the Act enjo; ns on the Collector to cause public notice to be givm at convenient places on or near the land to be taken. stating that the Government intends to take possession of the land. and that claims to compensation for all interests in such land may be made to him; under sub-s. (2) thereof such notice shall state the particulars of the land so needed and shall require persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned and to state the nature of their respective interests in the land and the amount and particulars of\n\no. n. GRANT v. STATE (S11bba Rao, J.) 579\n\ntheir claims to compensation for such interests, and their objections, if anv. to. the measurements made under s. 8. Under s. 11, on the day fixed or on any other day to. which the enquiry has been adjourned. the Collector shall proceed to make an enquiry and shall make an a\\'>ard under his hand of (i) the true area of the land; <ii) the compensation which in his opinion should be allowed for the land; and (iiil the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom. or of whose claims. he had information, whether or not they have respectively appeared before him. Under s. 12, \"such award shall be filed in the Collector's office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation amtmg the persons interested.\" The group of sections, viz., ss. 9 to 15, describes the subject-matter and the nature of the enquiry to be held by the Collector and provides for the making of the final award in respect of the said subject-matter; ss.18 to 28 provide for reference to Court and the procedure to be followed therein in respect thereof. Sections 29 and 30 fall under part IV of the Act under the heading \"Apportionment of compensation\".\n\nAs the decision mainly turns upon these provisions, it will be convenient to read them.in full.\n\nSection 29. Particulars of apportionment to be specified- Where there are several persons interested, if such persons agree in the apportionment of the compensation, the particulars of such apportionment shall be specified in the award, and as between such persons the awrrd shall be conclusive evidence of the correctness of the apportionment.\n\nSection 3[' Dispute as to apportionment-When the amount of compensat; or. has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persor.s to whom the same or any part thereof is payable, the Collector mo y refer such dispute to the decision of the Court.\n\nWhile s. 11 imposes a statutory duty on the Collector to enquire in respect of the three matters mentioned therein, ss. 29 and\n\n30 deal with. the manner of deciding the dispute in respect of one of the said matters, viz .. apportionment of the compensation fixed; under s. 29. if the claimants agree in the apportionment of the compensation, the agreed particulars shall be specified in the award and the said award is final as between them. It is manifest that this acrreement necessarily refers to the apportionment to be made under s.\"' 11 before the award is made, for the section in terms says that the agreed particulars shall e entered in the award. If there is no such agreement, s. 30 comes rnto play. It also refers to a stage after the compensation has been settled and before the apportionment is made and included in the award. If there was no agreed formula, the Land Acquisition Officer has the discretion, presumably when\n\n580 St:l'HEME COt:HT RF:l'OJtT~\n\n( 196~) 3 ~.C.R.\n\nthere is a .complicated question. to refer the dispute in respect of A the apportionment to the Court. But he need not do so if he thinks fit to decide the dispute for himself.\n\nThe Land Acquisition Act d:sclo:.e> a well knit scheme in the matter of making an award. The bnd Acquisition Officer, after issuing notice calling for object:om. decides on the three matters B prescribed in s. 11, i.e., the true area of the land, the amount of compensation anJ the apporionment of the compensation. Before making the apportionment of the compensation he can resort to any of the following three methods: Iii to accept an agreed formula; (iii to decide for himself; and n:; I to refer to the Court if he thinks that the decision of the Court is necessarv. But once the award is made, O it becomes tin:iJ and it can he reopened only in the manner prescribed. i.e., by way of a reference under s. 18 of the Act. This construction makes for the smooth working of the provisions of the Act and docs not lead to aDy anomalies. It also does not affect the right of the aggric, ed parties to proceed in the manner prescribed hy the Act for ?Ctting the award vacated or modified. as the case D may be. It is said that if this view he accepted, a person who acqu:res a right after the award by transfer inter vivos or by devolution of interest will be without a remedy. I do not sec any difficulty in that regard. Under s. 18 he m:iv ask for a reference. He may apply to be brought on record after the reference is made to the Court. It may also be that he may proceed in a civil Court to re- E cover the compensation from the persons who received it on the basis of his t; tle. On the other hand. the contrary view will lead to an incongruous position. It enables the Land Acquisition Officer to reopen a final aw; ird in the teeth of the express provisions of s. 12 of the A ct. It further enables him to make a reference without any period of lim'tation and thus to disturb the rights finally settled by F the award. I, therefore, hold that the Land Acquisition Officer cannot make a reference under s. 30 of the Act in the matter of apportionment of compensation after th~ award has been made by him apportioning the compensation under s. 11 and has been filed under s. 12 thereof.\n\nDuring the course of the arguments it was suggested that as the interest of Or. Grant devolved on the Government ; t may be held that the Government was in substance brought on record in the place of Dr. Grant ; n the reference made under >. 18 of the Act to the District Court. But the point was not raised at any stage\n\nof the proceedings. Indeed no application was filed in the District 1; Court for bring; ng the Government on record in the place of Dr.\n\nGrant. In the circumstances I am not justified in permitting the res pondent to raise the said point for the first time before this Court.\n\nIn the result, I set aside the decision of the High Court and restore that of the District Court. The appellant will have his costs throughout.\n\nShah, J. Dr. Gregor Hug Granthereinafter called 'Dr.\n\nGrant'-was the proprietor of the Dumka Estate in the District of Santhal Parganas in the State of Bihar. By a notification under s. 4(1) of the Land Acquisition Act, 1894 published on June 8, 1949 the Government of Bihar notified for acquisition a larger area of land out of the estate of Dr. Grant for establishing \"an agricultural farm.\" The Collector made on March 25, 1952 awards setting out the true area of the land notified for acquisition, compensation which in his opin'on should be allowed for the land and apportionment of the compensation among all the persons known or believed to be interested in the land. The awards were filed in the Collector's office on the same day. In respect of Plot No. 142, Rs. 575I14/- were awarded by the Collector as compensation in equal shares to Dr. Grant and the members of the village community, who had also made a claim for compensat; on. In respect of Plot No. 68, the Collector awarded Rs. 294/6/- as compensation. In respect of acquisition of an area admeasuring 88.91 acres consisting of several plots, the Collector awarded Rs. 1,64,446/5/10 as compensation and directed apportionment in the manner set out in the award.\n\nOn May 5, 1952 Dr. Grant applied to the Collector under s. 18 of the Land Acquis; tion Act that the three matters be referred for determination by the Court of the amount of compensation payable to the owners. Similar applications were filed in respect of Plot Nos. 68 & 142 by the members of the village community. In consequence of a notification issued under s. 3 of the Bihar Land Reforms Act 30 of 1950 the Dumka Estate vested on May 22, 1952 in the State of Bihar. In exercise of the power under s. 16 of the Land Acquisition Act, the Government of Bihar took over possession on August 21, 1952 of the Lands notified for acquisition.\n\nOn October 15. 1952 the Government Pleader submitted a petition before the Collector claiming that the compensation money awarded to Dr. Grant had since the publication of the notification under the Bihar Land Reforms Act become payable to the State Government, and the dispute between Dr. Grant and the State Government regatding the right to payment may be referred to the Court under s. 30 of the Land Acquisition Act.\n\nThe Collector made on November 5, 1952 three references to the District Court, Santhal Parganas. Two out of those references were made in exercise of powers under ss. 30 & 18 of the Land Acquisition Act, and the third under s. 30. The District Judge by his order dated April 9, 1954 held that the State of Bihar had no interest in the property notified for acquisition when the award was filed before the Collector under s. 12 of the Land Acquisition Act, and the State could lay no claim to the compensation money awarded. The District Judge upheld the apportiomnent of compensation between Dr. Grant and the village community and enhanced the valuation of the land and directed that compensation at the enhanc ed rate be awarded.\n\nIS92 8PPJlli:l1E f'OURT R&PORTS\n\nAgainst the order of the District Judge in the references. three A appeals Nos. 401 of 1953, 297 of 1954 and 298 of 1954 were preferred by the State to the High Court of Judicature at Patna. The High Court held that title of the owner to the land acquired under the Land Acquisition Act could not be extinguished under that Act till possession was taken under s. 16 of the Act, and that since the title of Dr. Grant in the land acquired sto<xl statutorily vested in th~ B State by virtue of the notification issued under the Bihar Land Reforms Act, he was not entitled to receive the compensation money. In the view of the High Court, title to the compensation money had vested in the State Government before possession was obtained by the State Government under s. 16 of the Land Acquisition Act, and that it was open to the Collector. on a dispute ra; sed 0 by the State about the right to receive the compensation money, to make a reference to the Court under s. 30 of the Act. With certificate granted by the High Court, these three appeals have been preferred by Dr. Grant.\n\nThree contentions have been urged in support of the ap- D peals: (!) the Collector had no authority to refer the matter under s. 30 after he had apportioned the amount of compensation under s. 11 (2) since title to compensation is derived solely from and on the date of the award, the notification under s. 3 of the Bihar Land Reforms Act did not deprive Dr. Grant of his right to receive compensation, and (3) the State Government was not \"a person interest- E ed\" within the meaning of the Land Acquisition Act, and could not apply for a reference under s. 30.\n\nAfter a notification is issued under s. 6 of the Land Acquisition Act, the appropriate Government may acquire the land notified in the manner set out in ss. 7 to 16. Section 9 provides for an en- F quiry inio the area of the land, into compensation which is payable and apportionment of compensation. The Collector is by s. 11 authorised to make an award setting out the true area of the land. the compensation which, in his opinion, should be allowed for the land and the apportionment of the said compensation among all the persons known or believed to be interested in the land, or of G whose claims, he has information, whether or not thev have respectively appeared before him. The award when filed in 'the Collector's office becomes final and conclusive evidence as between the Collector and the persons interested whether they have respectively appeared before the Collector or not, of the true area and value of the land and the apportionment of compensation among the per- H sons interested. The land vests absolutely in the Government. free from all encumbrances when possession is taken by the Collector under s. 16. Bys. 17 authority is conferred upon the Collector, when in cases of urgency the appropriate Government so directs, to take possession of waste or arable land even before making an award. Section 48 authorises the Government to withdraw from the acquisition any land ot which possession has not been taken.\n\nBy s. 18 the Collector is en joined to refer to the District Court for determination, objections as to the measurement of the land, the amount of compensation. the persons to whom i.t is payable, or the apportionment thereof among the persons interested. Part IV deals with apportionment of compensation. If the persons interested agree in the apportionment of the compensation, the particulars of such apportionment shall be specified in the award (s. 29): if there be no such agreement, the Collector may, if a dispute arises as to the apportionment of the compensation or any part thereof or as to the persons to whom the same or any part thereof is payable, refer such dispute under s. 30 for decision by the Court. Part V of the Act which contains ss. 31 to 34 deals with payment of compensation. Under s. 31 the Collector has to tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award. By the third proviso to sub-s. (2) of s. 31, liability of any person, who may receive the whole or any part of the compensation awarded under the Act, to pay the same to the person lawfully entitled thereto, is not affected. Sections 32 & 33 deal with investment of money deposited in respect of land belonging to persons incompetent to alienate the land and in other cases, but with these we are not concerned. Section 34 obliges the Collector to pay interest at the rate of six per centum per annum if compensation is not paid or deposited on or before taking possession of the land from the time of taking possession until it is so paid or deposited.\n\nThere are two prov; sions ss. 18(1) and 30 which invest the Collector with power to refer to the Court a dispute as to apportionment of compensation or as to the persons to whom it is payable.\n\nBy sub-s. (!)of s. 18 the Collector is enjoined to refer a dispute as to apportionment, or as to title to receive compensation, on the application within the time prescribed by sub-s. (2) of that section of a person interested who has not accepted the award. Section 30 authorises the Collector to refer to the Court after compensation is sett!~-<! under s. 11, any dispute arising as to apportionment of the same or any part thereof or as to the persons to whom the same or any part thereof is payable. A person shown in that part of the award which relates to apportionment of compensation, who is present either personally or through a representative, or on whom a notice is served under sub-s. (2) of s. 12. must, if he does not accept the award, apply to the Collector within the time prescribed under s. 18(2) to refer the matter to the Court. But a person who hai; not appeared in the acquisiHon proceeding before the Collector may, if he is not served with notice of the filing. raise a dispute as to apportionment or as to the persons to whom it is payable, and apply to the Court for a reference under s. 30, for determination of his right to compensation which may have existed before the award, or which may have develoved upon him since the award. Whereas under s. 18 an application made to the Collector must be made within the period prescribed by sub-s.(2) cl. (b), there is no such period\n\nSl.'l'REME CO\\'HT REPORTS\n\nprescribed under s. 30. Again under s. 18 the Collector is bound to make a reference on a petition tiled by a person interested. 1 he Collector is under s. 30 not enjoined to make a rcfcrenc~: he may relegate the person raising a dispute as to apportionment, or as to the person to whom compensation is payable, to agitate the dispute in a suit and pay the compensation .; n the manner declared by his award.\n\nWe are unable to agree with the view expressed by the Mysore High Court in Boregvwda and another v. Sribbaramiah anti (,/hers l'I that if the Collector has made apportionment of the compensation money b)! his award h; s power to refer a dispute under s. 3\\l cannot be exercised. Clause (iii) of s. 11 enjoins the Collector to apportion the compensation money among persons known or believed to be interested in the land: he has no discretion in the matter. Exercise of the power under s. 30 to refer the dispute relating to apportionment or as to the persons to whom it is payable is, it is true, discretionary: the Collector may. but is not bound to exercise that power. It is however not predicated of the exercise of that power that the Collector has not apportioned the compensation money by his award. We are also unable to agree with the Mysore High Court that the power urclcr s. 30 of the Land Acquisition Act has to be exercised on a motion within the pcri'od prescribed by s. 18(2) of the Land Acquisition Act. In our judgment the\n\npwcrs exercisable by the Collector under s. 18(1) and under s. 30 arc distinct and may be invoked in contingencies which do not overlap.\n\nBy virtue of the notification issued under the Bihar Land Reforms Act the right of Dr. Grant vested in the State of Bihar.\n\nOn March 25, 1952 when the Collector made an award under s. 11, the only .persons interested in the award were. Dr. Grant and the members of the village community. but the title of Dr. Grant in the land notified for acquisition stood, by operation of the Bihar Land Reforms Act, transferred as from May 22, 1952 to the State of Bihar. A dispute then arose between the State Government and Dr. Grant \"as to the persons vhom\" compensation was payable.\n\nThe State had no right to the compensation payable for the land under title existing before the date of the award of the Collector. and no application for reference could be made by the State. as a person interested within the meaning of s. 18(1). The title of the State to receive compensation arose only when in consequence of the notification under s. 3 of the Bihar Land Reforms Act. the title of Dr. Grant to the Estate was divested.\n\nAn award by the Collector is strictly speaking an offer made to the person interested in the land notified for acquisition: the latter may accept the offer. but is not bound to accent it. He may ask for a reference to the Court for adjudication of his claim for adequate compensation. The person interested may even accept\n\n(') A.l.R. 1959 1\\!yoo,. 2M.\n\nA the compensation under protest as to the sufficiency of the amount ar, d ask for a reference. It is also open to the Government, even after the award is made, but before possession is taken, to withdraw from acquisition of any land in exercise of the powers conferred by s. 48 of the Land Acquisition Act. It is therefore not the award of the Collector which is the source of the right to compensation: the B award quantifies the offer of the appropriate Government, which\n\n1s made because the Government has taken over, or intends to take the land of the owner under the authority conferred by the Land Acquisition Act. In Serju Prasad Sahu v. The State of Uttar Pradesh and Others(') it was observed by this Court in considering the scheme of the Act that the right of the owner of the land is extin- C . guished when Government takes possession of the land after an award of compensation is made. This is also supported by the scheme of the Act. Interest is made payable under s. 28 on the additional amount of compensation awarded by the Court from the date on which the Collector had taken possession. Similarly under s. 34 interest is made payable on the compensation from the date on which D the possession is taken, if the same be not paid or deposited on or heiore taking possession of the land.\n\nThe right of the State of Bihar arose on May 22, 1952 when the title to the land vested in it by virtue of the notification issued ur, ier the Bihar Land Reforms Act. There is nothing in the Land Acquisition Act which prohibits the Collector from making a relerence under s. 30 for determination of the title of the person who has since the date of the award acquired a right to the compensation. If after a reference is made to the Court, the person interestea dies or his title devolves upon another person, because of inheritance, succession, insolvency, forfeiture, compulsory winding up 01 other form of statutory transfer, it would be open to the party upon whom the title has devolved to prosecute the claim which the person from whom the title has devolved could have prosecuted. In\n\nPr.Jmotha Nath Mitra v. Rakhal Das Addy(') it was held that a reference made by the Collector under s. 30 of the Land Acquisition Act at the instance of a proprietor of land may be prosecuted by the purchaser of his rights after the award at a revenue auction. If the right to prosecute a reference by a person on whom the title of the person interested has devolved be granted, there is no reason why the right to claim a reference of a dispute about the person ent; tled to compensation may not be exercised by the person on wl1om the title has devolved since the date of the award.\n\nThe scheme of the Land Acquisition Act is that all disputes about the quantum of compensation must be decided by resort to\n\nth~ procedure prescribed by the Act; it is also intended that disputes about the rights of owners to compensation being ancillary to the principal dispute should be decided by the Court to which power is entrusted. Jurisdiction of the Court in this behalf is not restricted\n\n(') A.I.R. 1965 S.C. 1763. (') 11 Cal. L.J. 420.\n\nSt:PREME COURT REPORTS [1965] 3 •.a...\n\nto cas~ of apportionment, but extend! to adjudication of disputes as to the persons who are entitled to receive compensation, and there is nothing in s. 30 which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of land has, 'ince the award, devolved.\n\nIt was strongly pressed that under s. 31 of the Land Acquisition Act the Collector is bound to tender payment of compensation awarded by him to the persons entitled thereto according to the award and that implied that a right in the amount of compensation arises to the person to whom compensation is directed to be paid under the award, and therefore the only persons who can raise a dispute under s. 30 arc those whose names are set out in the award.\n\nThi~ contention stands refuted by the plain terms of s. 30. The Collector is not authorised to decide finally the conflicting rights of the persons interested in the amount of compensation: he is primarily concerned with the acquisition of the land. In detennining the amount of compensation which may be offered, he has. it is true, to appc.rtion the amount of compensation between the persons known or believed to be interested in the land, of whom, or of whose daims, he has information. whether or not they have appeared before him. But the scheme of apportionment by the Collector does not finally determine the rights of the persons interested in the amount of compensation: the award is only conclusive between the Collector and the persons interested and not among the persons interested. The Collector has no power to finally adjudicate upon the title to compcnsatio11. that dispute has to be decided either in a reference under s. 18 or under s. 30 or in a separate suit. Payment of compensation therefore under s. 31 to the person declared by the award to be entitled thereto discharges the State of its liability to pay compensation (subject to any modification by the Court), !saving it open to the claimant to compensation to agitate his right in a reference under s. 30 or by a separa ta suit.\n\nThe dispute between the State of llihar and Dr. Grant has been expressly referred by the Collector to the Court for decision.\n\nUnder the Bihar Land Reforms Act. the title of Dr. Grant to the land notified for acquisition became vested in the State, and there fore the right to compensation for the land ftcquired devolved upon the State. A dispute between Dr. Grant and the State as to their conflicting claims to the compensation money was clearly a dispute which could be referred under s. 30 of the Land Acquisition Act to the Court and was in fact rctcrred to the Court. We are unable to agree with counsel for Dr. Grant that the reference made by the Collector under s. 30 was incompetent. because the State was not interested in the compensation money on the date when the award was made. The right ,, f the State of Bihar has undoubtedly arisen a<ter the award was made. but once the title which was\n\norigi., lly ve, ted in Dr. Grant stood statutorily transferred to the State, it was open to the State to claim a reference, not because the\n\n(}. Ir. /}RANT V. STATE (Shah, J.) 587\n\nA State was a person interested in the compensation money before the date. of the award, but because of the right which has arisen since the award was made.\n\nWe therefore dismiss the appeals with costs. There will be one hearing fee.\n\nORDER B Following the judgment ef the majority, the appeals are dismissed with costs. There will be one hearing fee.", "total_entities": 166, "entities": [{"text": "G. B. GRANT", "label": "PETITIONER", "start_char": 4, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "G. B. GRANT", "offset_not_found": false}}, {"text": "March 30, 1965", "label": "DATE", "start_char": 35, "end_char": 49, "source": "ner", "metadata": {"in_sentence": "G. B. GRANT v.\n\nSTATE OF BIHAR March 30, 1965\n\n[K. SUBBA R.Ao, J. C. SHAH AND R. S. BACHAWAT, JJ.)"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 70, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ.", "label": "JUDGE", "start_char": 82, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 103, "end_char": 129, "source": "regex", "metadata": {}}, {"text": "Ja-Bihar Land Reforms Act", "label": "STATUTE", "start_char": 142, "end_char": 167, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 175, "end_char": 179, "source": "regex", "metadata": {"linked_statute_text": "Ja-Bihar Land Reforms Act", "statute": "Ja-Bihar Land Reforms Act"}}, {"text": "s. 30", "label": "PROVISION", "start_char": 336, "end_char": 341, "source": "regex", "metadata": {"linked_statute_text": "Ja-Bihar Land Reforms Act", "statute": "Ja-Bihar Land Reforms Act"}}, {"text": "the State of Bihar", "label": "RESPONDENT", "start_char": 423, "end_char": 441, "source": "metadata", "metadata": {"canonical_name": "STATE OF BIHAR", "offset_not_found": false}}, {"text": "s. 12", "label": "PROVISION", "start_char": 819, "end_char": 824, "source": "regex", "metadata": {"linked_statute_text": "Ja-Bihar Land Reforms Act", "statute": "Ja-Bihar Land Reforms Act"}}, {"text": "s. 18", "label": "PROVISION", "start_char": 941, "end_char": 946, "source": "regex", "metadata": {"linked_statute_text": "Ja-Bihar Land Reforms Act", "statute": "Ja-Bihar Land Reforms Act"}}, {"text": "s. 16", "label": "PROVISION", "start_char": 1015, "end_char": 1020, "source": "regex", "metadata": {"linked_statute_text": "Ja-Bihar Land Reforms Act", "statute": "Ja-Bihar Land Reforms Act"}}, {"text": "Act was taken the Bihar Land Reforms Act, 1950", "label": "STATUTE", "start_char": 1028, "end_char": 1074, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1110, "end_char": 1114, "source": "regex", "metadata": {"linked_statute_text": "the Act was taken the Bihar Land Reforms Act, 1950", "statute": "the Act was taken the Bihar Land Reforms Act, 1950"}}, {"text": "s. 30", "label": "PROVISION", "start_char": 1278, "end_char": 1283, "source": "regex", "metadata": {"linked_statute_text": "the Act was taken the Bihar Land Reforms Act, 1950", "statute": "the Act was taken the Bihar Land Reforms Act, 1950"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1890, "end_char": 1894, "source": "regex", "metadata": {"linked_statute_text": "the Act was taken the Bihar Land Reforms Act, 1950", "statute": "the Act was taken the Bihar Land Reforms Act, 1950"}}, {"text": "s. 30", "label": "PROVISION", "start_char": 2142, "end_char": 2147, "source": "regex", "metadata": {"statute": null}}, {"text": "Shah", "label": "JUDGE", "start_char": 2160, "end_char": 2164, "source": "ner", "metadata": {"in_sentence": "HELD: Per Shah and Bachawat, JJ.-ii) There are two provisiol'IS in the Act under which the Collector can make a reference to the Court, namely.", "canonical_name": "SHAH J."}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 2169, "end_char": 2177, "source": "ner", "metadata": {"in_sentence": "HELD: Per Shah and Bachawat, JJ.-ii) There are two provisiol'IS in the Act under which the Collector can make a reference to the Court, namely.", "canonical_name": "BAC'llAWAT"}}, {"text": "s. 18", "label": "PROVISION", "start_char": 2294, "end_char": 2299, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 2304, "end_char": 2309, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12(2)", "label": "PROVISION", "start_char": 2600, "end_char": 2608, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18", "label": "PROVISION", "start_char": 2711, "end_char": 2716, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 3015, "end_char": 3020, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 3186, "end_char": 3191, "source": "regex", "metadata": {"statute": null}}, {"text": "G. 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{"document_id": "1965_3_588_603_EN", "year": 1965, "text": "WORKMEN OF MOTIPUR SUGAR FACTORY (PRIVATE) . A\n\nLIMITED v.\n\nMOTIPUR SUGAR FACTORY\n\nMarch 30, 1965\n\n(P. B. GAJENDRAGADKAR, C J:. K. N. WANCHOO, M. HIDAYATULLAH\n\nAND V. RAMASWAMI, JJ.J B Industrial Disputes-Discharge of workmen on account of fJOslow-Reference as to whether discharge justified-Tribunal, if could decide go-slow-No enquir11 before discharge-If discharf}e could be justified before Tribunal.\n\nThe workers of the respondent started a go-slow in its sugar factory. Therefore, the respondent issued a general notice to those wokmen and individually to each workman notifving that unless he recorded his willingness to discharge his duties faithfully and diligently so as to give a certain minimum output, he will be no longer employed; and that he must record his willingness in the office by a certain time, failing which he shall stand discharged from the service of the respondent without any further notice.\n\nBecause the appellrnts. who were 119 of such workmen, failed to record their willingness, the respondent issued a notice discharging their services. The respondent held no enquiry as required by the Standing Orders before dispensing .,;; th the services of the appellants. A general strike followed resulting in a joint application by both the parties to the Government and the Government referred the question to the Tribunal, whether the dischar; ie of the workmen was justified. The Tribunal came to the conclusion that there was\n\ngo-slow during the period, and consequently held that the discharge of the workmen was .fully justified. In appeal by Special Leave the appellant contended that (i) all that the Tribunal was concerned with was to decide whether the discharge of the workmen for not giving an undertaking was justified or not, and that it was no part of the duty of the Tribunal to decide whether thee was go-<; Jow which would justify the order of discharge; (ii) Since the respondent held no enquiry as required by the Standing Orders, it could not justify the discharge before the Tribunal and (iii) the finding of the Ttibunal that go-slow had been proved was perverse and the Tribunal had ignored relevant evidence in coming to the concluiion.\n\nHELD: The contentions must le rejected.\n\n(i) Taking 'into account the wide terms of reference, the manner in which it was understood before the Tribunal, and the fact that it must be read alongwith the two notices, particularly because it was made soon thereafter at the joint application of the parties, the Tribunal was entitled to go into the real dispute between the parties, namely whether the discharge was justified on the ground that there was misconduct in the form of go-slow by the workmen concerned. [596D]\n\n(ii) No distinction can be made between cases when the domestic enquiry is invalid and those where no enqu.iry has in fact been held.\n\nThis Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the Tribunal may give an opportunity\n\nWORKMEN v. MOTIPUR FACTORY (Wanchoo, J.) 589\n\nA to the employer to prove his case and in doing so the Tribunal tries the merits itself. [598A-C] Case law referred to.\n\n(iii) As the case involved the discharge of 119 workmen, this Court went into the evidence, and the evidence showed that the decision of the Tribunal was not wrong that there was go-slow and B that the discharge was fully justified, [598E]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 108 of 1964.\n\nAppeal by special leave from the Award d; ited May 11, 1962, of the Industrial Tribunal, Bihar, Patna in Reference No. 4 of 1961.\n\nRanen Roy, Jai Krishan, G. S. Chatterjee, E. Udayarathnam for A. K. Nag, for the appellants.\n\nNiren De, Addi. Solicitor-General and Naunit Lal, for the respondent.\n\nThe Judgment of the Court was delivered by Wanchoo, J.\n\nThis is an appeal by special leave against the award of the Industrial Tribunal, Bihar. It relates to the discharge of 119 workmen of the respondent who were employed as cane carrier mazdoors or as cane carrier supervisors or jamadars.\n\nAll these were seasonal workmen. It is necessary to set out in some detail the circumstances leading to the discharge. The respondent is a sugar factory and the crushing season starts usually in the frrst half of November each year.\n\nWe are concerned in the present appeal with November and December 1960. It appears that from the season 1956-57, the respondent introduced an incentive bonus scheme in the factory.\n\nThe scheme continued thereafter froin season to season with certain changes. It also appears that in the beginning of each season, the respondent used to put forward the incentive bonus scheme and consult the workmen.\n\nThe same thing was done when the season 1960-61 was about to start in November 1960.\n\nBut the scheme for this season proposed by the respondent contained certain changes which were apparently not acceptable to the workmen.\n\nOne of the features in the scheme was that the crushing of sugar cane per day should be 32,000 maunds. The general secretary of the union of the workmen suggested certain alterations for the consideration of the respondent on November 7, 1960,\" and one of the main alterations suggested was that the norm for per day's crushing should be 125,000 maunds of cane and thereafter incentive bonus should be given at a certain rate.\n\nNo agreement seems to have reached on the incentive bonus scheme, and the complaint of the respondent was that the secretary incited the workmen to go slow in consequence of the change in the scheme. Consequently mild go-slow in the can: carrier department which is the basic department in a sugar mill began from the very start of the season on November 10, 1960. Thu\n\nL/P(N)4SCI\n\nSUPREME COURT REPORTS\n\n(1965) 3 s.c.R.\n\nrespondent's case further was that on. November 27, 1960, the workmen -in the cane carrier department started in combination with one another to go-slow deliberately and wilfully and in a planned manner and thus reduced the average daily crushing to 26,000 maul)ds cane which was much less than the average crushing in previous seasons. This conduct of the workmen .was said to be highly prejudicial to the respondent and besides being technically unsafe, had brought into existence an acute shortage in the fuel position which might have resulted in the complete stoppage of the mill and a major breakdown of the machinery.\n\nWhen the position became serious the respondent issued a general notice on December 15, 1960 inviting the attention of the workmen concerned to this state of affairs which had been continuing of any rate since November 27, 1960. This notice was in the following terms: -\n\n\"At the instigation of Shri J. Krishna, the General Secretary\n\nof your Union, you since the very beginning of this season, have been failing in your duty to ensure adequate and regular loading of the ne carrier, and with effect from the 27th November, 1960, you, in combination with each other, have deliberately and wilfully resorted to a clear 'go-slow' tactics, a fact openly a1lmitted by the above-named General Secret2ry of your Union in presence of the Labour Superintendent and Labour Officer Muzzffarpur, in course of discussions E held on the subject in the office of the Assistant Labour Commissioner on the 6th December, 1960. You have deliberately reduced the average daily crushing to more or less 20,000 maunds out of which more than 2,000 maunds is due to the newly introduced device of direct feeding of the cane carrier by cane carts weighed during nights and not attributable to any effort on your part.\n\nThus the actual crushing given by you is practically something between 23,000 and 24,000 maunds only which is highly uneconomical and technically unsafe for this factory with the installed crushing capacity of more than 1,200 tons a day. \"About 14,000 bales of extra bagasse kept in stock as re-\n\n, erve have already been consumed in !he past 12 days or so and now the factory is faced with a situation when at any mom1mt \"its boilers may go out of steam for want of bagasse-fuel leading to an abrupt stopr-age of the mills and finally resulting into a major breakdown of machineries.\n\n\"It is therefore hereby notified that unless you voluntarily\n\nrecord your willingness individually. to discharge your duties faithfuJly ond diligentiy by feeding the cane currier so as to give a minimum average daily crush of 32,000 maunds, exclud111g •toppages other than those\n\nWORKMEN v. MOTIPUR FACTORY (Wano/too, J.) 591\n\ndue to overloading or underloading of.the cane carrier, you will be considered to be no longer employed by the company. You must record your willingness in the office of the Factory Manager on or before 4 P.M. of Saturday the 17th December, 1960, failing which you shall stand discharged from the service of the company without any further notice with effect from 18-12-1960 and your place will be filled by recruiting other labour to man the cane carrier station.\" This notice was put on the notice-board along with translations in Hindi and Urdu and it was also sent individually to the workmen in cane carrier department.\n\nA copy was also sent to the Secretary of the union with the workmen concerned to submit their willingness as desired by the respondent in the notice in ques- . tion either individually or even collectively through the union. The secretary of the union replied to this notice on the same day and said that it was \"full of malicious!y false and mischievous statements\". The secretary also denied that the workmen had adopted go-slow tactics or that he had advised the workmen to adopt such tactics.\n\nFinally the secretary said that it was simply fantastic to ask a worker to give an undertaking to crush at least 32,000 maunds per day and if the service of any workman was terminated on his not giving the undertaking, the responsibility would be that of the respondent itself. The respondent's case was that three workmen gave undertakings as required in the notice while the rest .did not. Thereafter the situation in the factory deteriorated and the workmen grew more and more unruly and even started entering the factory without taking their attendance token.\n\nIn consequence of this attitude of the workmen, the respondent issueJ a notice at 5 p.m. on December 17, 1960 which was in the following terms:\n\n\"The following workers of the cane carrier srnt1011 who\n\nfailed to record their willingness in factory manager's office by 4 p.m. this day the 17th December, 1960, to work faithfully and diligently in accordance with the management's notice dated 15-12-1960, stand discharged from the company's service and their mmes have been struck off the rolls with effect from 18th December 1960.\n\nFrom now on, the workers concerned have forfeited their right to go to and occupy their former place of work and any action contrary to this on their part will make them liable to prosecution for crimim1 I trespass. \"Their final account will be ready for payment by 4 p.m. on the 19th December 1960, when, or wherrnfter, they may present themselves at the company\\ Office fo;- receiving payment of their V\\':lges and other (l\\1es. if any. during working hours\", and then mentions the names of 119 workmen of the cane carriers Jeparnnent.\n\n592 SUPRlllJ.IE COURT REPORTS\n\n(1965] 3 8.0.R.\n\nThus the services of the workmen concerned stood discharged from A December 18, 1960 under this notice. This was followed by a general strike in pursuance of the notice served on the respondent by the union on December 17, 1960. The strike continued upto / December 22, 1960 when as a result of an agreement it was decided that the case of the discharged workmen and the question of wages for the strike period be referred to adjudication.\n\nConse- B quently a joint application by both parties was made to Government on December 21, 1960. The Government then made a reference of the following two questions to the tribunal on January 25, 1961 :-\n\n!. Whether the discharge of workmen mentioned in the Appendix was justified. If not, whether they should be re-instated and/ or they are entitled to any other relief?\n\n2. Whether the workmen be paid wages for thi;_ period\n\n16-00 hrs. on December 18, 1960 to 8-00 hours on December 22, 1960?\n\nD It may be mentioned that the respondent had held no enquiry aJ required by the standing Orders before dispensing with the services of the workmen concerned. Therefore, when the matter went before the tribunal, tlie question that was tried was whether there was .go-slow between November 27, 1960 and December 15,\n\n1960. The respondent led evidence, which was mainly documentary and based on the past pedormance of the factory to show that there was in fact go-slow by the workmen. concerned during this period. The appellants on the other hand also relying on\n\nthe record of the respondent tried to prove that the cane carrier department had been giving normal work in accordance with what had happened in the past in connection with cane crushing. That is how the tribunal considered the question on the basis of the relevant statistics supplied by both parties and also oral evidence whether there was go-slow during this period or not.\n\nAfter considering all the evidence it came to the conclusion that there was goslow during this period. Consequently it held that the discharge of the workmen was fully justified. It therefore answered the first question referred to it in favour of the respondent. The Becond question with.respect to wages for the strike period was not pressed on behalf of the appellants and was therefore decided against them.\n\nThereafter the appellants came to this Court and obtained special leave ; and that is how the matter has come up before us.\n\nWe are concerned in the present appeal only with the first question which was referred to the tribunal. Learned counsel for the appellants has raised three main contentions before us in support of the appeal.\n\nIn the first place it is contended that the tribunal misdirected itself as to the scope of the reference and that all that the tribunal was concerned with was to decide whether the discharge of the workmen for not giving an undertaking was justified\n\nWORKMEN v. HOTIPUR FACTORY (Wanchoo, J.) 598\n\nor not. and that it was no part of the duty of the tribunal to decide whether there was go-slow between the relevant dates which would justify the order of discharge. Secondly, it is urged that the respondent had given no charge-sheets to the workmen concerned and had held no enquiry as required by the Standing Orders. Therefore, it was not open to the respondent to justify the discharge before the tribunal, and the tribunal had no jurisdiction to go into the merits of the question relating to go-slow. Lastly it is urged that the finding of the tribunal that go-slow had been proved was perverse and the tribunal had ignored relevant evidence in coming to that conclusion. We shall deal with these contentions seriatlm.\n\nRe. (J).\n\nWe have already set out the relevant term of reference and it will be seen that it is wide and general in terms and asks the tribunal to decide whether the discharge of the workmen concerned was justified or not. It does not mention the grounds on which the. disc ha •ge was based and it is for the tribunal to investigate the grounds and decide whether those grounds justify discharge or not.\n\nSo if the tribunal finds that the discharge was due to the use of go-slow tactics by the workmen concerned it will be entitled to investigate the question whether the use of go-slow tactics by the workmen had been proved or not.\n\nBut the argument on behalf of the appellants is that the notice of December 17 gives the reason for the discharge and the tribunal is confined only to that notice and has to consider whether the reason given in that notice for discharge is justified. We have already set out that notice and it certainly says that the workmen mentioned at the foot of the notice had failed to record their will ingness to work faithfully and diligently in accordance with the respondent's r.otice of December 15, 1960, and therefore they stood discharged from the respondent's services and their names had been struck off the rolls from December 18, 1960.\n\nSo it is argued that the reason for the discharge of the workmen concerned was not go-slow but their failure to record their willingness to work faithfully and diligently. The tribunal had therefore to see whether this reason for the discharge of the workmen was justifiable. and that it had no jurisdiction to go beyond this and to investigate the question of go-slow.\n\nWe are of opinion that there is no force in this argument.\n\nApart from the question that both parties before the tribunal went into the question of go-slow and voluminous evidence was led from both sides either to prove that there was go-slow or to disprove the same, it appears to us that it would be taking much too technical a view to hold that the discharge was due merely to the failure of the workmen to give the undertaking and that the go-slow had nothing to do with the discharge.\n\nWe are of opinion that the two notices o.f December 15 and December 17 have to be read together and it may be pointed out that the notice of December 17th does refer to the earlier notice of December 15th. If we read the two\n\n594 SuPR~~ME COURT REPORTS [1965) 3 s.c.R\n\nnotices together, there can be in our opinion be no doubt that A though the discharge is worded as if it was due to the failure to !\\>cord their willingness to work faithfully and diligently, it was really due to the workmen concerned using go-slow tactics. Notice of Dec-ember 15, is in two parts. The first part sets out the facts and states what the workmen had been doing from the very beginning of the season and particularly from November 27, 1960. It il states that on the instigation of the secretary of the union, the work\n\nmen had been failing in their duty to ensure adequate and regular loading of the cane carrier from the very beginning of the season.\n\nIt further charges that with effect from November 27 they had in combination with one another deliberately and wilfully resorted t<) a clear go-slow, a fact said to have been openly admitted by the C secretary in the presence of the Labour Superintendent and Labour Officer, Muzaffarpur, in course of discussions held in the office of the Assistant Labour Commissioner on December 6,' 1960. The notice then says that the average daily crushing is 26,000 maunds out of which more .han 2,000 was due to the newly introduced device of direct feeding of the cane carrier by cane carts weighed\n\nJJ , during nights and not attributable to any effort on the workmen's parts; thus the actual crushing had been practically reduced to\n\nwmething between 23,000 to 24,000 maunds per day, which was highly uneconomical and technically unsafe for the factory which had an installed crushing capacity of more than 1,200 tons a day i.e. over 32,000 maunds a day. The notice also says that about E 14.000 bales of extra bagasse kept in stock as reserve and already been consumed in the last twelve days and the factory was faced wit.h a situation when at any moment its boilers might go out of , team for want of bagasse-fuel'Jeading to an abrupt stopJ?age of the\n\nmill and finally resulting in a major break-down of machinery.\n\nThese facts which were given in the first part of the notice dated December 15, 1960 really show the charge which the respondent was making against the workmen concerned.\n\nI; Iaving made this charge of go-slow in the manner indicated in tlie first part of the notice (and it may be mentioned that this notice was\n\nnot only put on the notice-board but was given to each workmen G individually), the respondent then indicated in the second part what action it intended to take.\n\nIn this part the respondent told the workmen concerned that unless they voluntarily recorded their willingness individually to discharge their duties faithfully and dili gently by feeding the cane carrier so as to give a minimum average daily crush of 32,000 maunds, excluding stoppages other than H those .due to over-loading or under-loading of the cane carrier, they would be considered to be no longer employed by the respondent.\n\nThey were given time up to 4 p.m. on December 17, 1960 to record their willingness failing which they would stand discharged from the respondent's service without any further notice with effect from December 18, 1960. The second part of the notice thus jndicated to the workmen concerned how much they had to crush every\n\nday to avoid the charge of go-slow. It further ind_icatcd that the respondent was prepared to let bygones be bygones 1f the workmen concerned were preparl!d to give an undertaking in the n1anner desired. Assuming that this course adopted by the respondent was unjust and even improper. reading of the two parts of the notice of December 15. 1960 shows that in the opinion of the res pondent was the normal cane crushing per day and what was the charge of the respnndent against the workmen concerned in the matter of go-slow and what the respondent was prepared to accept if i11e workmen were agreeable to the claim of the respondent. It is clear therefore from the notice which was given on December IS, 196'.l that the respondent thought that 32,000 maunds should be the normal crnsh every day excluding stoppages other than those due to over-loading or under-loading of the cane carrier. It also charged the workmen with producing much less than this for the. peiiod from November 27, 1960 to December IS, 1960, though it was prepared to l st bygones be bygones, provided the workmen in future undertook to give normal production. It is in the background of this charge contained in the notice of December lS,\n\n1960 that we have to read the notice of December 17, 1960. That notice says that the workmen had failed to record their willingness to work faithfully and diligently in accordance with the notice of December IS. 1950 and therefore they stood discharged, meaning therel:Jy that the respondent was charging the workmen with goslow as indicated in the notice of December 15, 1960 and that as they were not prepared to give normal production even in future they were being discharged.\n\nTherefore, though in form the notice of December 17, .1960 reads as ; f the workmen were being discharged for not giving the undertaking as desired. the real basis of the notice of discharge of December 17, 1960 is the use of goslow which had already been indicated in the notice of December 1 S given to each workman individually also.\n\nThe reference was made on the joint application of both parties. If all that the workmen desired in their joint application for reference was that it should only be considered whether the discharge of the work.men for refusing to give an undertaking was justified, there was nothing to prevent the workmen to insist that in the joint application this matter should be specifically mentioned.\n\nTn the joint application the first matter which was specified was in these lerms:\n\n\"Whether the discharge of workmen mentioned in the appendix was justified? If not, whether they should be reinstated and I or they are entitled to any other relief?\" Now if all that was desired was that the tribunal should go into the question whether the discharge of the wor!cmen on the ground that they had failed to give the undertaking should be investigated. it woulrl have been easy to put this term only in the reference in the joint aooliction thus; \"Whether the discharges of the workmen mentioned in the appendix on the\n\n\n(1985] 3 S.C, R.\n\nground of their failure to give an undertaking was justified?\" The A very fact that the matter specified as in dispute was put in the wide words already quoted above shows that the parties did not wish to confine their dispute only to the question whether the discharge on the ground of failure to give an undertaking was justified.\n\nFurther we have already indicated that both parties understood the dispute to be whether gc;-slow was justified or not and B that is why voluminous evidence was led before the tribunal. The wide terms in which the reference was made along with the notice of December 17th read with the notice of December 15th leave no doubt in our mind that the reference included investigation of any cause which might have led to the discharge of the workinen. There is no doubt in this case that even though notice of discharge was 0 pharsed as if the discharge was being made on account of the failure to give an undertaking the real reason for the discharge was that the workmen had been guilty of go-slow between November 27 and December 15 and were not prepared in spite of the respondent's giving them a chance to in; iprove to show better results. Therefore taking into account the wide terms of reference, the manner D in which it was understood before the tribunal, and the fact that it must be read along with the two notices of Der.ember 15 and 17,\n\n1960, particularly because it was made soon thereafter at the joint application of the parties, we have no doubt that the tribunal was entitled to go into the real dispute between the parties, namely whether the discharge was justified on the ground that there was E miscon:luct in the form of go-slow by the workmen concerned between November 27, 1960 workmen therefore on this head must be rejected.\n\nRe. (II).\n\nThen we come to the question whether it was open to the F tribunal when there was no enquiry whatsoever by the respondent to hold an enquiry itself into the question of go-slow. It was urged on behalf of the appellants that not only there was no enquiry in the present case but there was no charge either. We do not agree that there was no charge by the respondent against the workmen concerned. The first part of the notice of December 15, G 1960 which was served on each individual workmen was certainly a charge by the respondent telling the workmen concerned that they were guilty of go-slow for the period between November 27 and December 15, 1960. It is true that the notice was not headed as a charge and it did not specify that an enquiry would follow, which is the usual procedure when a formal charge is given. Even H so, there can be no doubt that the workmen concerned knew what was the charge against them which was really responsible for their discharge from December 18, 1960.\n\nIt is now well-settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is. open to him to justify the action before the tribunal by leading all relevant evidence before it.\n\nWORKHEN v. :MOTll'UR FA.CTORY (Wanchoo, J.) 597\n\nIn such a case the employer would not have the benefit which he had in cases where domestic inquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited quetions open to a tribunal where domestic inquiry has been properly held (see Indian Iron & Steel Co. v. Their workmen(') but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to MI s Sasa Musa. Sugar Works (P) Limited v. Shobrati Khan('), Phulbari Tea Estate v. Its Workmen(') and the Puniab National Bank Limited v. Its Workman(') There three cases were further considered by this court in Bharat Sugar Mills Limited. v.\n\nShri Jai Singh('), and reference was also made to the decision of the Labour Appellate Tribunal in Shri Ram Swarath Sinha v.\n\nBelaund Sugar Co. (') It was pointed out that \"the import effect of commission to hold an enquiry was merely this: that the tribunal would not have to consider only whether there was a prima fade case but would decide for itself on the evidence adduced whether the charges have really been made out\". It is true that three of these cases, except Phulbari Tea Estate's case('), were on applications under s. 33 of the Industrial Disputes Act, 1947. But in principle we see no difference whether the matter comes before the tribunal for approval under s. 33 or on a reference under s. 10 of the Industrial Disputes Act, 1947. In either case if the enquiry Is defective or if no enquiry has been held as required by Standing\n\nOrders, the entire case would be open before the tribunal and the. employer would have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estate's(') was on a reference under s. 10, and the same principle was applied there also, the only difference being that in that case, there was an enquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper. ·\n\nIf it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must be set asicie by the industrial tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again. In that case, another industrial dispute would arise and the employer would be entitled to rely upon the enquiry which he had held in the mean-time. This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry given. On the other hand, if in such cases the employer is given an opportunity. to justify the\n\n(') [1958] S.C.R. 667. (') [1959] Supp. S.C.R. 836.\n\n(3) [1960] IS.C.R. 32 •.\n\n(') [1900] I S.C.R. 806.\n\n(') [1962J1S!S.C.R. 684.\n\n(') [1954] L.A.C. 697.\n\n'. ~Ul'Rl..:ME l'Ol!RT REPOftTS ' ,\n\n[1965] 3 S.C.R. . .. _ \\\" \\ ', . ' , impa_cncd dismissal on the merits of his case heing considered by\n\n. lite tribunal for itself a'nd that clearlywou1d be to the benefit of the\n\nc;;:pioyec: That is why this Court has consistently held that if the do, nestic enquiry. is irregular, invalid or' improper, the tribunal . may give an opportunity to the employer to prove his case and in doing so the tribunal tries the merits itself. This view is consistent with the approach which industrial adjudication generally adopts with a view to do justice between the parties without relying too much on technical considerations and with the object of avoiding delay in the disposal of industrial disputes. ·· Therefore,\n\nwe are satisfied that no distinction can be made lietween cases where the domestic enquiryis invalid and those where no enquiry has in fact been held. We must therefore reject the contention c that as there was no enquiry in this case it was ncit. open to the responJcnt to justify the dis_charge before the tribunal ..\n\nRe. (iit)\n\nThe question whether there was go-slow during the perio1 from November 27 to Dcember 15, 1960 is a question of fact and the tribunal has come to the conclusion that there was go-slow during this period. Ordinarily, this Court dcies not go into findings of fact recorded by a tribunal unkss there are special reasons, as. for example, where the finding is based on no evidence,-which of course is not the case here. Learned counsel for the appellants\n\nhowc;;:r urges that the finding of the tribunal that the. workmen concerned were guilty cf go-slow is perverse and that. evidence which was relevant and material has been ignored. As the case involves the discharge of as many as 119 workmen we liave decided to go broadly into the evidence to see whether the finding of the\n\ntrib:mal.is patently wrong. · · Fqr this purpose we may first refer to the past history of the W'lrking of the respondent factory. It appears that till this court condemned the practice of go-slow in the case of Bharat Sugar Mills('). It was not unusual in the State of Bihar for workmen to give notice of go-slow to employers as if it was a le3itimate weapon\n\n!<J be used: in matters of dispute between the employers and the workmer.. In the present case the respondent had complained as far back at 1950 that go-slow was being resorted to. In 1950 a court of enquiry was constituted to enquire into this question and it made a report that there was a slow-down on the part of the workman for several days in February-March 1950. It also came to' the conclusion that the slow-down was instigated anJ sponsored. by. union leaders. In 1951, the workmen gave notice . of go-slow in case their demands were not fulfilled (vide Ex. A-1) Similar notices were given in 1952 (vide Ex. A-2), In 1954 (vide . Ex. A-3 and A-4) and in 1955 (vide Exs. A-5, A-6 and A-7 and\n\n'on some occasions threats of go-slow did actually materialise.\n\nBesi<!es these notices the management had. occasion to complain in 1955, 1957, and 1958 more than once tat go-slow was being\n\n\nWORKMEN v. MOO'IPUR l/ACTOJtY (Wanrlwo, .J.)\n\n5\\J9\n\nresorted to at the cane carrier. Thus it appears that resorting to go-slow was a common practice in this factory.\n\nIt is in the background of this persistent attitude of the workmen that we have to see what happened in November 1960. We have already referred to the fact that the workmen were dissatisfied with the new incentive bonus scheme proposed by the res pondent. It is not necessary to go into the merits of this new scheme which was proposed in September 1960.\n\nBut it appears that when there was dispute in the 1959-60 season on the question of how much cane should be crushed,- the secretary of the union had accepted in a conference with the Assistant Labour Commissioner that there had been a drop in the amount of cane crushed, though he maintained that it was still the average crush.\n\nHe had also stated then that the workmen were dissatisfied with the incentive bonus scheme in that season and had withdrawn the extra efforts they were putting iri after the introduction of the incentive scheme for the first time in 1956-57. Further it was admitted by the secretary in his evidence that when the bonus scheme was proposed in 1960-61, it was considered by the workmen in a meeting and it was decided that if the new system was introduced without the consent of the workmen they would not put in any extra effort for giving more than what was the normal crush in the mill. The evidence also show~ that there were con ferences about the new scheme and at one stage the respondent suggested that the norm should be 30,000 maunds crush per day while, the union was agreeable to 29,500 m.aunds per day.\n\nBut there was no agreement in this behalf and so that workmen carried out their resolve not to put in extra efforts to give more than the average normal crushing per day. Thus the season which began in November 1960 started with the withdrawal of extra efforts by the workmen which in plain terms means that the workman were not prepared to do what they had been doing in this previous season 1959-60 and were slowing down production as compared to what it was in 1959-60. It is in the background of this history and this admission that we have to look broadly into the evidence to see whether the tribunal's conclusion that there was go-slow is justified.\n\nThe main contention on behalf of the respondent in this con nection is that that one has to see is that is called crushing speed for a day of 24 hours and it is this crushing speed which would determine whether there was go-slow during the period in dispute.\n\nIt has been urged that crushing speed per 24 hours is different from the actual crushing per day or the average crushing for a period. for the actual crushing per day from which the crushing speed is arrived at depends on a number of factors, particularly it depends on the amount of stoppages that take place during the day and if there are more stoppages the actual crushing on a parti cular day would necessarily go down. Crushing speed per twenty four hours on the other hand is arrived a! by excluding the stoppages and then working out what would be the amount of cane\n\n600 SUPllEME COURT REPORTS [1965] 3 s.c.R.\n\ncrushed in 24 hours if there had been no stoppages.\n\nThe case of A the respondent further is that when it gave the notice on December 15, 1960 asking for a crush of 32,000 maunds per day it really meant that the workmen should work in such a way as to give a crushing speed of 32,000 maunds per day, though the words \"crushing speed\" were not actually used in the notice. It is however pointed out that the notice when it mentions 32,000 maunds B as the normal crush expected per day excluded stoppages other than those due to over-loading or under-loading of the cane carrier.\n\nTherefore, the respondent wanted the workmen to give a crushing speed of 32,000 maunds per day which would exclude stoppages, the only exception being itoppages due to over-loading or underloading, which, according to the respondent, is due to the deliberate 0 action of the cane carrier workmen to cause stoppages, We think that this explanation of what the respondent meant when it gave the notice of average daily crush of 32,000 maunds is reasonable, for it is impossible to accept that 32,000 maunds were required to be crushed irrespective of stoppages, beyond the control of the workmen. Further it is not in dispute that the labour force was D more or less the same throughout these years, and therefore we have to see whether during the period from November '},7 to December 15, 1960 there was any significant drop in the crushing speed. If there was such a significant drop that could only be due to go-slow tactics which have been euphemistically called withdrawal of extra efforts.\n\nIt is necessary therefore to look at the charts produced in this case to determine this question. The appellants mainly relay on chart Ex. W-3. That is however a chart of actual crushing per day during the period from 1954-55 to 1960-61 and has nothing to do with crushing speed which in our opinion would be the determinp ing factor in finding out whether there was go.slow. The actual crush may vary as we have alreacjy said due to so many factors, particularly due to stoppages for one reason or the other. The respondent produced another chart Ex. W-4 which shows the crushing speed for the entire season from 1954-55 to 1959-60. We consider that it would not be proper to take the figures for the Q years 1956-57 to 1959-60 in which years incentive bonus schemes were in force and which according to the workmen resulted in extra efforts on their part. But the figures of 1954-55 and 1955-56 would be relevant because in these years there was no incentive bonus scheme and no night weighment of carts. The workmen have also produced a chart showing cane crushed, actual crushing days and B crushing per day; but this chart does not show the crushing speed and does not take into account the stoppages. It merely shows the actual number of working days and the average per day. That however would not be an accurate way of finding out whether in fact there was go-slow during the period with which we are concerned. The respondent's chart Ex. W-4 while showing the same amount of actual crushing also shows what would be the crushing\n\nWORKMEN v. MOTIPUl\\ FACTORY (Wanchoo, J.) 601\n\nspeed per 24 hours after excluding stoppages. This chart in our opinion is the proper chart for determining whether there was goslow during the revelant period. Now according to this chart (Ex. W-4) tlJ.e daily average crushing speed in 1954-55 was 29,784 maunds and in 1955-56, 30,520 maunds without incentive bonus and without night weighment of carts. It appears that from the middle of 1959-60 season night weighment of carts started and it is not in dispute that that resulted in an increase in the daily crushing and this increase is put at over 2,000 maunds per day by the respondent: the secretary of the union admitted that this would result in an increase of about 2,500 maunds per day. We have already said that iu the years 1954 and 1955 there was no incentive bonus and if these figures are accepted as giving the average crushing speed per day (when there was no incentive bonus and no weighment of carts at night) it would in our opinion be not improper to accept that the crushing speed with night weighment of carts would be in the neighbourhood of 32,000 maunds per day in view of the admission that night weighment of carts resulted in an increase of crushing by about 2,000 maunds to 2,500 maunds per day. Therefore, when the respondent gave notice on December 15,\n\n1960 that the average crushing per day should be 32,000 maunds excluding stoppages (except those due to O\\ \"r-loading or underloading of the cane carrier, for which the workmen would be responsible) it cannot be said that the respondent had fixed something which was abnormal. It is true that when negotiations were taking place in connection with the incentive bQnus scheme for the year\n\n1960-61, the respondent was prepared to accept a crushing speed of 30,000 maunds per day above which the incentive bonus scheme would apply. That is however easily understood for a proper incentive bonus scheme always fixes a norm which is slightly. lower than the average in order that there may be greater incentive to labour to produce more than the average.\n\nEven so, when the incentive bonus scheme for 1960-61, was not acceptable to the workmen and they had already decided to withdraw what they called extra effort, the respondent would not be unjustified in asking for the full average crushing speed based on the production of the years 1954-55 and 1955-56, when there was no incentive bonus scheme and no night weighment of carts.\n\nIt has been urged on behalf of the appellants that the crushing speed of 32,000 maunds per 24 hours is not correctly arrived at for it does not take into account half hour's rest per shift which is permissible under s. 55(]) of the Factories Act, No. 63 of 1948.\n\nThus, according to the appellants, crushing speed should be worked out on 22! hours per day and the crushing will then be less by 1116th and will only come to 30,000 maunds per day. Reliance in this connection is placed on s. 55(2) of the Factories Act, which lays down that \"the State Government.. .... may by written order and for the reasons specified therein, exempt any factory from the provisions of sub-section (]) so however that the total number of hours worked by a. worker without an interval does not exceed\n\n602 SUPREME COURT REPOR'l'S\n\nsix. It is therefore urged that the workmen were entitled to half an hour's rest per shift in any case because the shift was for eight . hours. The respondent on the other hand relies on s. 64(2) (d) for the Factories Act and its case is that the State Government had made rules under that provision in connection with sugar factories, which apply to it.\n\nSection 64(2) (d) is in these terms:- . \"The State Govrnment may make rules in respect of adult workers in factories providing for the exemption, to such extent and subject to such conditions as may be prescribed-\n\n(d) of workers engaged in any work which for technical reasons must be carried on continuously from the provisions of sections 51,. 52, 54, 55 and 56;\n\nWe are of opinion that this provision in s. 64(2) (d) being a special provision will over-ride both sub-ss. (1) and (2) of s. 55, for it gives power to the State Government by making rules to exempt certain types of factories frQjll the application of the whole of s. 55, subject to such conditions and to such extent as the rules may provide. It appenrs lhac rules were framed in this behalf by the Government of Bihar in 1950 by which sugar fact.ories were exempted from the application of s. 55 for purposes of handling and crushing of cane, among others, subject to the condition that the workers concerned shall be allowed to take light refreshment or meals at the place of their employment, or in a room specially reserved for the purposes or in a canteen provided in the factory, once during any period exceeding four hours.\n\nThus cane crushing operations are exempt from.s. 55(1) ands. 55(2) subject to the condition mentioned above.\n\nWe may also refer to s. 64(5) which lays down that the rules made under this section shall remain in force for not more than three years. The rules to which reference has been made are of 1950; but there is nothing to show that these rules were not continued after every interval of three years and the position that the exemption applies to sugar factories even now as provided in these rules was not disputed.\n\nWe shall therefore proceed on the basis that the exemption applied to sugar factories in Bihar. In view of this, the workmen cannot claim half an hour's rest per shift as urged on their behalf, though sometime must be allowed for refreshment or light meals as provided in the provision graHting exemption. This means that a few minutes would be allowed to each individual in turn in each shift for light refreshment or meals in such a way that the work does not stop. If 'we make a total allowance of half an hour or so in this connection the average crushing speed would be reduced to slightly over 31,000 maunds per day and that is all the adjustment that the appellants can claim in view of the exemption under s. 64(2) (d).\n\nLet us now turn to the actual position between November 27 and December 15, 1960. This will appear from chart Ex. W-7.\n\nI' v\n\nWORKMEN , .. MOTIPUR FACTORY (Wanclwo, J.) 603\n\nThat chart shows a crushing speed of 29 ,859 maunds per day from November 10 to 26, when, according to the respondent, there was only mild go-slow.\n\nWe are however concerned with the period from November 27 to December 15, 1960 and the crushing speed for 24 hours during that period was 27,830.\n\nNow if we take the average crushing speed as 32,000 maunds per 24 hours without any adjustment or even a little over 31,000 maunds with adjustment following upon the rule relating to exemption from s. 55, there is certainly a significant drop in average crushing speed during this period. Further we find that there is a significant drop even as compared to the period between November 10 to 26, 1960, inasmuch as the drop was over 2,000 maunds per day.\n\nTherefore it cannot be said that the tribunal was incorrect in its conclusion that there had been go-slow during the period from November 27 to December 15. It may be added that when comparisons are made on the basis of crushing speed and labour force is more or less constant, as is the case here. other minor factors to which our attention was drawn on behalf of the appellants during argument do not matter at all. Even if we take the figure of 30,000 maunds as the crushing speed which the respondent had put forward at the time of the discussion on the incentive bonus scheme, we find that thnugh there was not much difference during the period from November\n\n10 to November 26, there was a significant drop of over 2,000 maunds per day from November 27 to December 15.\n\nLooking at the matter in this broad way-and that is all that'we are prepared to do, for we are examining a finding' of fact of the tribunal-we cannot say that its conclusion that there was go-slow batwllen\n\nNovember 27 and December 15 is not justified.\n\nFinally, it is urged that notice was given to the workmen on December i 5 and they were discharged on December 17, 1960 without giving them a change to give the necessary production as desired in the notice. But as we have already indicated, the charge in the notice of December 15 was that the workmen had been going slow from November 27 and they were asked to give an undertaking to improve and the respondent was apparently willing to overlook the earlier lapse.\n\nEven assuming that the demand of an undertaking was unjustified, it does appear that the attitude of the workmen was that they would do no better; and in those circumstances they were discharged on December 17, 1960 on the basis of misconduct consisting of go-slow between November 27 and December 16, 1960.\n\nThat misconduct has been held proved by the tribunal and in our opinion that decision of the tribunal cannot be said to be wrong. In the circumstances the tribunal was justified in coming to the conclusion that the discharge was fully justified.\n\n. In this view ?f the matter, the appeal taps and is hereby dismissed.\n\nIn the circumstances we order parties to bear their own costs.\n\nAppeal dismissed.", "total_entities": 71, "entities": [{"text": "WORKMEN OF MOTIPUR SUGAR FACTORY (PRIVATE) . A\n\nLIMITED", "label": "PETITIONER", "start_char": 0, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "WORKMEN OF MOTIPUR SUGAR FACTORY (PRIVATE) . LIMITED", "offset_not_found": false}}, {"text": "March 30, 1965", "label": "DATE", "start_char": 83, "end_char": 97, "source": "ner", "metadata": {"in_sentence": "A\n\nLIMITED v.\n\nMOTIPUR SUGAR FACTORY\n\nMarch 30, 1965\n\n(P. B. GAJENDRAGADKAR, C J:."}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 100, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 128, "end_char": 141, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 143, "end_char": 158, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ", "label": "JUDGE", "start_char": 164, "end_char": 180, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Ranen Roy", "label": "OTHER_PERSON", "start_char": 3580, "end_char": 3589, "source": "ner", "metadata": {"in_sentence": "Ranen Roy, Jai Krishan, G. S. Chatterjee, E. Udayarathnam for A. K. Nag, for the appellants."}}, {"text": "Jai Krishan", "label": "OTHER_PERSON", "start_char": 3591, "end_char": 3602, "source": "ner", "metadata": {"in_sentence": "Ranen Roy, Jai Krishan, G. S. Chatterjee, E. Udayarathnam for A. K. Nag, for the appellants."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 3604, "end_char": 3620, "source": "ner", "metadata": {"in_sentence": "Ranen Roy, Jai Krishan, G. S. Chatterjee, E. Udayarathnam for A. K. Nag, for the appellants."}}, {"text": "E. Udayarathnam", "label": "LAWYER", "start_char": 3622, "end_char": 3637, "source": "ner", "metadata": {"in_sentence": "Ranen Roy, Jai Krishan, G. S. Chatterjee, E. Udayarathnam for A. K. Nag, for the appellants."}}, {"text": "Niren De", "label": "LAWYER", "start_char": 3674, "end_char": 3682, "source": "ner", "metadata": {"in_sentence": "Niren De, Addi."}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 3712, "end_char": 3722, "source": "ner", "metadata": {"in_sentence": "Solicitor-General and Naunit Lal, for the respondent."}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 3788, "end_char": 3795, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Wanchoo, J.\n\nThis is an appeal by special leave against the award of the Industrial Tribunal, Bihar."}}, {"text": "November 7, 1960", "label": "DATE", "start_char": 5123, "end_char": 5139, "source": "ner", "metadata": {"in_sentence": "The general secretary of the union of the workmen suggested certain alterations for the consideration of the respondent on November 7, 1960,\" and one of the main alterations suggested was that the norm for per day's crushing should be 125,000 maunds of cane and thereafter incentive bonus should be given at a certain rate."}}, {"text": "November 27, 1960", "label": "DATE", "start_char": 5786, "end_char": 5803, "source": "ner", "metadata": {"in_sentence": "November 27, 1960, the workmen -in the cane carrier department started in combination with one another to go-slow deliberately and wilfully and in a planned manner and thus reduced the average daily crushing to 26,000 maul)ds cane which was much less than the average crushing in previous seasons."}}, {"text": "December 15, 1960", "label": "DATE", "start_char": 6448, "end_char": 6465, "source": "ner", "metadata": {"in_sentence": "When the position became serious the respondent issued a general notice on December 15, 1960 inviting the attention of the workmen concerned to this state of affairs which had been continuing of any rate since November 27, 1960."}}, {"text": "J. Krishna", "label": "OTHER_PERSON", "start_char": 6673, "end_char": 6683, "source": "ner", "metadata": {"in_sentence": "This notice was in the following terms: -\n\n\"At the instigation of Shri J. Krishna, the General Secretary\n\nof your Union, you since the very beginning of this season, have been failing in your duty to ensure adequate and regular loading of the ne carrier, and with effect from the 27th November, 1960, you, in combination with each other, have deliberately and wilfully resorted to a clear 'go-slow' tactics, a fact openly a1lmitted by the above-named General Secret2ry of your Union in presence of the Labour Superintendent and Labour Officer Muzzffarpur, in course of discussions E held on the subject in the office of the Assistant Labour Commissioner on the 6th December, 1960."}}, {"text": "27th November, 1960", "label": "DATE", "start_char": 6882, "end_char": 6901, "source": "ner", "metadata": {"in_sentence": "This notice was in the following terms: -\n\n\"At the instigation of Shri J. Krishna, the General Secretary\n\nof your Union, you since the very beginning of this season, have been failing in your duty to ensure adequate and regular loading of the ne carrier, and with effect from the 27th November, 1960, you, in combination with each other, have deliberately and wilfully resorted to a clear 'go-slow' tactics, a fact openly a1lmitted by the above-named General Secret2ry of your Union in presence of the Labour Superintendent and Labour Officer Muzzffarpur, in course of discussions E held on the subject in the office of the Assistant Labour Commissioner on the 6th December, 1960."}}, {"text": "Muzzffarpur", "label": "OTHER_PERSON", "start_char": 7145, "end_char": 7156, "source": "ner", "metadata": {"in_sentence": "This notice was in the following terms: -\n\n\"At the instigation of Shri J. Krishna, the General Secretary\n\nof your Union, you since the very beginning of this season, have been failing in your duty to ensure adequate and regular loading of the ne carrier, and with effect from the 27th November, 1960, you, in combination with each other, have deliberately and wilfully resorted to a clear 'go-slow' tactics, a fact openly a1lmitted by the above-named General Secret2ry of your Union in presence of the Labour Superintendent and Labour Officer Muzzffarpur, in course of discussions E held on the subject in the office of the Assistant Labour Commissioner on the 6th December, 1960."}}, {"text": "6th December, 1960", "label": "DATE", "start_char": 7263, "end_char": 7281, "source": "ner", "metadata": {"in_sentence": "This notice was in the following terms: -\n\n\"At the instigation of Shri J. Krishna, the General Secretary\n\nof your Union, you since the very beginning of this season, have been failing in your duty to ensure adequate and regular loading of the ne carrier, and with effect from the 27th November, 1960, you, in combination with each other, have deliberately and wilfully resorted to a clear 'go-slow' tactics, a fact openly a1lmitted by the above-named General Secret2ry of your Union in presence of the Labour Superintendent and Labour Officer Muzzffarpur, in course of discussions E held on the subject in the office of the Assistant Labour Commissioner on the 6th December, 1960."}}, {"text": "Saturday the 17th December, 1960", "label": "DATE", "start_char": 8694, "end_char": 8726, "source": "ner", "metadata": {"in_sentence": "You must record your willingness in the office of the Factory Manager on or before 4 P.M. of Saturday the 17th December, 1960, failing which you shall stand discharged from the service of the company without any further notice with effect from 18-12-1960 and your place will be filled by recruiting other labour to man the cane carrier station.\""}}, {"text": "18-12-1960", "label": "DATE", "start_char": 8845, "end_char": 8855, "source": "ner", "metadata": {"in_sentence": "You must record your willingness in the office of the Factory Manager on or before 4 P.M. of Saturday the 17th December, 1960, failing which you shall stand discharged from the service of the company without any further notice with effect from 18-12-1960 and your place will be filled by recruiting other labour to man the cane carrier station.\""}}, {"text": "December 17, 1960", "label": "DATE", "start_char": 10262, "end_char": 10279, "source": "ner", "metadata": {"in_sentence": "In consequence of this attitude of the workmen, the respondent issueJ a notice at 5 p.m. on December 17, 1960 which was in the following terms:\n\n\"The following workers of the cane carrier srnt1011 who\n\nfailed to record their willingness in factory manager's office by 4 p.m. this day the 17th December, 1960, to work faithfully and diligently in accordance with the management's notice dated 15-12-1960, stand discharged from the company's service and their mmes have been struck off the rolls with effect from 18th December 1960."}}, {"text": "17th December, 1960", "label": "DATE", "start_char": 10458, "end_char": 10477, "source": "ner", "metadata": {"in_sentence": "In consequence of this attitude of the workmen, the respondent issueJ a notice at 5 p.m. on December 17, 1960 which was in the following terms:\n\n\"The following workers of the cane carrier srnt1011 who\n\nfailed to record their willingness in factory manager's office by 4 p.m. this day the 17th December, 1960, to work faithfully and diligently in accordance with the management's notice dated 15-12-1960, stand discharged from the company's service and their mmes have been struck off the rolls with effect from 18th December 1960."}}, {"text": "15-12-1960", "label": "DATE", "start_char": 10562, "end_char": 10572, "source": "ner", "metadata": {"in_sentence": "In consequence of this attitude of the workmen, the respondent issueJ a notice at 5 p.m. on December 17, 1960 which was in the following terms:\n\n\"The following workers of the cane carrier srnt1011 who\n\nfailed to record their willingness in factory manager's office by 4 p.m. this day the 17th December, 1960, to work faithfully and diligently in accordance with the management's notice dated 15-12-1960, stand discharged from the company's service and their mmes have been struck off the rolls with effect from 18th December 1960."}}, {"text": "18th December 1960", "label": "DATE", "start_char": 10681, "end_char": 10699, "source": "ner", "metadata": {"in_sentence": "In consequence of this attitude of the workmen, the respondent issueJ a notice at 5 p.m. on December 17, 1960 which was in the following terms:\n\n\"The following workers of the cane carrier srnt1011 who\n\nfailed to record their willingness in factory manager's office by 4 p.m. this day the 17th December, 1960, to work faithfully and diligently in accordance with the management's notice dated 15-12-1960, stand discharged from the company's service and their mmes have been struck off the rolls with effect from 18th December 1960."}}, {"text": "19th December 1960", "label": "DATE", "start_char": 10982, "end_char": 11000, "source": "ner", "metadata": {"in_sentence": "Their final account will be ready for payment by 4 p.m. on the 19th December 1960, when, or wherrnfter, they may present themselves at the company\\ Office fo;- receiving payment of their V\\':lges and other (l\\1es."}}, {"text": "Jeparnnent", "label": "OTHER_PERSON", "start_char": 11228, "end_char": 11238, "source": "ner", "metadata": {"in_sentence": "during working hours\", and then mentions the names of 119 workmen of the cane carriers Jeparnnent."}}, {"text": "December 22, 1960", "label": "DATE", "start_char": 11546, "end_char": 11563, "source": "ner", "metadata": {"in_sentence": "The strike continued upto / December 22, 1960 when as a result of an agreement it was decided that the case of the discharged workmen and the question of wages for the strike period be referred to adjudication."}}, {"text": "December 21, 1960", "label": "DATE", "start_char": 11809, "end_char": 11826, "source": "ner", "metadata": {"in_sentence": "Conse- B quently a joint application by both parties was made to Government on December 21, 1960."}}, {"text": "January 25, 1961", "label": "DATE", "start_char": 11915, "end_char": 11931, "source": "ner", "metadata": {"in_sentence": "The Government then made a reference of the following two questions to the tribunal on January 25, 1961 :-\n\n!."}}, {"text": "December 18, 1960", "label": "DATE", "start_char": 12173, "end_char": 12190, "source": "ner", "metadata": {"in_sentence": "on December 18, 1960 to 8-00 hours on December 22, 1960?"}}, {"text": "December 15,", "label": "DATE", "start_char": 12530, "end_char": 12542, "source": "ner", "metadata": {"in_sentence": "Therefore, when the matter went before the tribunal, tlie question that was tried was whether there was .go-slow between November 27, 1960 and December 15,\n\n1960."}}, {"text": "Muzaffarpur", "label": "GPE", "start_char": 18290, "end_char": 18301, "source": "ner", "metadata": {"in_sentence": "It further charges that with effect from November 27 they had in combination with one another deliberately and wilfully resorted t<) a clear go-slow, a fact said to have been openly admitted by the C secretary in the presence of the Labour Superintendent and Labour Officer, Muzaffarpur, in course of discussions held in the office of the Assistant Labour Commissioner on December 6,' 1960."}}, {"text": "December 6,' 1960", "label": "DATE", "start_char": 18387, "end_char": 18404, "source": "ner", "metadata": {"in_sentence": "It further charges that with effect from November 27 they had in combination with one another deliberately and wilfully resorted t<) a clear go-slow, a fact said to have been openly admitted by the C secretary in the presence of the Labour Superintendent and Labour Officer, Muzaffarpur, in course of discussions held in the office of the Assistant Labour Commissioner on December 6,' 1960."}}, {"text": "December 15. 1960", "label": "DATE", "start_char": 20889, "end_char": 20906, "source": "ner", "metadata": {"in_sentence": "reading of the two parts of the notice of December 15."}}, {"text": "December 17, .1960", "label": "DATE", "start_char": 22297, "end_char": 22315, "source": "ner", "metadata": {"in_sentence": "Therefore, though in form the notice of December 17, .1960 reads as ; f the workmen were being discharged for not giving the undertaking as desired."}}, {"text": "December 15, G 1960", "label": "DATE", "start_char": 25845, "end_char": 25864, "source": "ner", "metadata": {"in_sentence": "The first part of the notice of December 15, G 1960 which was served on each individual workmen was certainly a charge by the respondent telling the workmen concerned that they were guilty of go-slow for the period between November 27 and December 15, 1960."}}, {"text": "November 27 and December 15, 1960", "label": "DATE", "start_char": 26036, "end_char": 26069, "source": "ner", "metadata": {"in_sentence": "The first part of the notice of December 15, G 1960 which was served on each individual workmen was certainly a charge by the respondent telling the workmen concerned that they were guilty of go-slow for the period between November 27 and December 15, 1960."}}, {"text": "Phulbari Tea Estate", "label": "ORG", "start_char": 27953, "end_char": 27972, "source": "ner", "metadata": {"in_sentence": "It is true that three of these cases, except Phulbari Tea Estate's case('), were on applications under s. 33 of the Industrial Disputes Act, 1947."}}, {"text": "s. 33", "label": "PROVISION", "start_char": 28011, "end_char": 28016, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 28024, "end_char": 28053, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 33", "label": "PROVISION", "start_char": 28157, "end_char": 28162, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "s. 10", "label": "PROVISION", "start_char": 28187, "end_char": 28192, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 28200, "end_char": 28229, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10", "label": "PROVISION", "start_char": 28548, "end_char": 28553, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "November 27 to Dcember 15, 1960", "label": "DATE", "start_char": 30959, "end_char": 30990, "source": "ner", "metadata": {"in_sentence": "iit)\n\nThe question whether there was go-slow during the perio1 from November 27 to Dcember 15, 1960 is a question of fact and the tribunal has come to the conclusion that there was go-slow during this period."}}, {"text": "Bharat Sugar Mills", "label": "ORG", "start_char": 31885, "end_char": 31903, "source": "ner", "metadata": {"in_sentence": "It appears that till this court condemned the practice of go-slow in the case of Bharat Sugar Mills(')."}}, {"text": "Bihar", "label": "GPE", "start_char": 31943, "end_char": 31948, "source": "ner", "metadata": {"in_sentence": "It was not unusual in the State of Bihar for workmen to give notice of go-slow to employers as if it was a le3itimate weapon\n\n!"}}, {"text": "15,\n\n1960", "label": "DATE", "start_char": 40574, "end_char": 40583, "source": "ner", "metadata": {"in_sentence": "Therefore, when the respondent gave notice on December 15,\n\n1960 that the average crushing per day should be 32,000 maunds excluding stoppages (except those due to O\\ \"r-loading or underloading of the cane carrier, for which the workmen would be responsible) it cannot be said that the respondent had fixed something which was abnormal."}}, {"text": "s. 55(])", "label": "PROVISION", "start_char": 41926, "end_char": 41934, "source": "regex", "metadata": {"statute": null}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 41942, "end_char": 41955, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 55(2)", "label": "PROVISION", "start_char": 42197, "end_char": 42205, "source": "regex", "metadata": {"statute": null}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 42213, "end_char": 42226, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 64(2)", "label": "PROVISION", "start_char": 42711, "end_char": 42719, "source": "regex", "metadata": {"statute": null}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 42732, "end_char": 42745, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 64(2)", "label": "PROVISION", "start_char": 42880, "end_char": 42893, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 51", "label": "PROVISION", "start_char": 43213, "end_char": 43224, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 64(2)", "label": "PROVISION", "start_char": 43288, "end_char": 43296, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 55", "label": "PROVISION", "start_char": 43370, "end_char": 43375, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 55", "label": "PROVISION", "start_char": 43512, "end_char": 43517, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of Bihar", "label": "ORG", "start_char": 43647, "end_char": 43666, "source": "ner", "metadata": {"in_sentence": "It appenrs lhac rules were framed in this behalf by the Government of Bihar in 1950 by which sugar fact.ories were exempted from the application of s. 55 for purposes of handling and crushing of cane, among others, subject to the condition that the workers concerned shall be allowed to take light refreshment or meals at the place of their employment, or in a room specially reserved for the purposes or in a canteen provided in the factory, once during any period exceeding four hours."}}, {"text": "s. 55", "label": "PROVISION", "start_char": 43739, "end_char": 43744, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 55(1)", "label": "PROVISION", "start_char": 44126, "end_char": 44134, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 64(5)", "label": "PROVISION", "start_char": 44211, "end_char": 44219, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 64(2)", "label": "PROVISION", "start_char": 45317, "end_char": 45325, "source": "regex", "metadata": {"statute": null}}, {"text": "November 27 to December 15, 1960", "label": "DATE", "start_char": 45701, "end_char": 45733, "source": "ner", "metadata": {"in_sentence": "We are however concerned with the period from November 27 to December 15, 1960 and the crushing speed for 24 hours during that period was 27,830."}}, {"text": "s. 55", "label": "PROVISION", "start_char": 46000, "end_char": 46005, "source": "regex", "metadata": {"statute": null}}, {"text": "November 10 to 26, 1960", "label": "DATE", "start_char": 46179, "end_char": 46202, "source": "ner", "metadata": {"in_sentence": "Further we find that there is a significant drop even as compared to the period between November 10 to 26, 1960, inasmuch as the drop was over 2,000 maunds per day."}}, {"text": "November 27 to December 15", "label": "DATE", "start_char": 46386, "end_char": 46412, "source": "ner", "metadata": {"in_sentence": "Therefore it cannot be said that the tribunal was incorrect in its conclusion that there had been go-slow during the period from November 27 to December 15."}}, {"text": "November 27 and December 16, 1960", "label": "DATE", "start_char": 48028, "end_char": 48061, "source": "ner", "metadata": {"in_sentence": "Even assuming that the demand of an undertaking was unjustified, it does appear that the attitude of the workmen was that they would do no better; and in those circumstances they were discharged on December 17, 1960 on the basis of misconduct consisting of go-slow between November 27 and December 16, 1960."}}]}
{"document_id": "1965_3_604_610_EN", "year": 1965, "text": "JANKI RAM BAHADUR RAM v.\n\nCOMMISSIONER OF INCOME TAX, CALCUTTA\n\nMarch 31, 1965\n\n[K. SUBBA RAO, J. c. SHAH AND s. M. Suau, JJ.J In<iian Income-tax Act, 1922 (11 of 1922), s. 10-Purcluise of a different business-Sale-Profit-If taxable.\n\nThe assessee who was dealing in <iron scrap and hardware had purchased a jute press and sold it at a profit. The Income-t!IX Officer\n\nbrought to tax in the hands of the assessee, the profit arising out of this sale. The Appellate Tribunal modified the order and reduced the total income. At the instance of assessee the Tribunal referred to the High Court, the question, whether the surplus received by the assessee as a result of the sale of the jute press arose out of an adventure in the nature of trade and was, therefore, liable tc tax. The High Court answered the question In affirmative. In appeal; HELD: The question must be answered in the negative.\n\nGranting that the assessee made a profitable bargain when he purchased the property and granting further that the assessee had, when he purchased it, a desire to sell the property, if a favourable offer was forthcoming, these could not without other circumstances, justify an inference that the assessee intended by purchasing the property to start a venture in the nature of trade. {609H-610A]\n\nA profit motive in entering a transaction is nQ decisive, for, an accretion to capital does not become taxable income, merely because an asset was acquired in the expectation that it may be sold at a profit. [608F]\n\nPurchase of the property by the assessee was an isolated transaction not related to the business of the assessee. [608G]\n\nCase law referred to.\n\n. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 308 of 1964.\n\nAppeal by special leave from the judgment and order dated September 10, 1962 of the Calcutta High Court in Income-tax Reference No. 115 of 1957.\n\nA. V. Viswanatha Sastri, B. Sen Gupta and P. K. Ghosh, for the appellant.\n\nN. D. Karkhanis and R. N. Sachthey, for the respondent.\n\nThe Judgment of the C, ourt was delivered by Shah, J. The appellant .is a Hindu undivided family and carries on business as a dealer in \"iron scrap and hardware\".\n\nMessrs. Hoare Miller and Company Ltd.-hereinafter called 'the Company'-were owners of a jute pressing factory installed on a piece of land belonging to the Company. Adjacent to that land were two pieces of land: one was leasehold, and the other held by the Company as a licensee from the Government of West\n\n6Q<l\n\n• F\n\nJANKI 11AM: v. c. I. T. (Shah, J.)\n\nBengal. On January 21, 1941 the Company leased out to one Ramnath Bajoria the jute pressing factory together with the machinery standing on the land owned by the Company for ten months commencing from January 10, 1941. Ramnath Bajoria failed to vacate and deliver up possession of the premises demised to him, after the expiry of the period of the lease, and the Company instituted a suit in ejectment against him.\n\nBy an agreement dated October 31, 1942 the appellant agreed to purchase all the rights of the Company in the factory and the appurtenant premises for Rs. 2,45,000. On November 14, 1942 the Company delivered to the appellant possession of the property agreed to be sold, save and except the factory demised under the lease to Ramnath Bajoria and the machinery included in the lease. On February 26, 1943 the Company executed a conveyance in favour of the appellant conveying the factory and the appurtenant premises.\n\nOn June 12, 1943 the appellant agreed to sell to one Ranada Prasad Saha the property purchased from the Company for Rs. 4, 73,364 I 3 I 6 free from all encumbrances. On August 10, 1943 the appellant was substituted as a plaintiff in the suit filed by the Company against Ramnath Bajoria, and obtained possession of the factory premises. By a deed of conveyance dated September 30, 1943 the appellant conveyed to Ranada Prasad Saha the factory and the appurtenant premises and delivered possession thereof. In the deed of conveyance the property sold was described in three separate Schedules. Schedule I; Press House, bffice, residential buildings and three warehouses on land owned by the Company: Schedule II; leasehold land together with a warehouse known as Kalibari godown: Schedule III; two warehouses on land held as licensee by the Company from the Government of West Bengal.\n\nThe Income-tax Officer, District II(!), Calcutta, brought to tax in the hands of the appellant Rs. 2,24,864 being the profit arising out of the sale of the property to Ranada Prasad Saha.\n\nThe Income-tax Appellate Tribunal partially modifiej the order and reduced the total income. by Rs. 7 ,000. The Tribunal then drew up a statement of case and referred the following question to the High Court of Judicature at Calcutta:\n\n\"Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the surplus of Rs. 2,35,211 received by the assessee as a result of the sale of the jute press referred to in the Appellate order arose out of an adventure in the nature of trade and was therefore rightly assessed to tax?\" The High Court answered the question in the affirmative. With special leave granted by this Court, the appellant has appealed to this Court.\n\nL/P(N)4SCI 12\n\nSUPREME COURT BEPOBTS (1965} 3 s.c.R.\n\nAt the material time, capital gains were not taxable, and the only question falling to be determined is whether profit made by the appellant by sale of the property to Ranada Prasad Saha was taxable under s. 10 of the Indian Income-tax, Act. The Tribunal found the following facts proved: The appellant was carrying on business in iron scrap and hardware, and never carried on any business in jute or in pressing jute. At the material time when the purchase of the Jute .P!ess was made, the appellant had, because of abnormal cond1tlons prevailing in the town of Calcutta, closed its business in iron scrap and hardware. The appellant purchased the jute press and the premises appurtenant thereto subject to litigation pending in the High Court, effected certain repairs and kept the factory in running condition, but made no attempt to start or organise the business of pressing jute, and his plea that he was not able to secure labour for working the press was not , true. Soon alter he bought the factory, the appellant received an offer from Ranada Prasad Saha to buy the factory and he immediately accepted the offer to sell it to him.\n\nThese facts in the view of the Tribunal indicated that the appellant purchased the jute press, subject to litigation, with the sole object of reselling at profit at the earliest opportunity, and therefore the tranasction was in the nature of a trading venture.\n\nThe High Court substantially agreed with this view.\n\n,, Section 10 of the Indian Income-tax Act, 1922 makes profits and gains of business, profession, or vocation carried on by an assessee taxable. The expression \"business'' is defined in s. 2(4) as inclusive of. \"any trade, commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufact11re\". It is common ground that the transaction of purchase and sale of the factory and appurtenant premises was an isolated venture. To reiterate the sequence , of material events: the appellant agreed to purchase the Jute Press from the Company on October 1, 1942 subject to litigation pending in the High Court of Calcutta: possession of the property except the premises in the occupation of the tenant was obtained on November 14, 1942 'and the sale' deed was obtained on February 26, 1943: on June 12, 1943 the appellant agreed to sell the press to Ranada Prasad Saha: on Auust 10, 1943 tlJe appellant was substituted as plaintiff in the smt filed by the' Company against Ramnath Bajoria, and after obtaining possession of the demised premises the appellant executed on September 30, 1943 a sale deed conveying the property and delivered possession to Ranada Prasad Saha.\n\nDo these facts make out the case that th\" transaction was an adventure in the nature of trade?\n\nIt is for the revenue to establish that the profit earned in a transaction is within the taxing provision and is on that account liable to be taxed as income. The nature of the transaction must\n\nJANK! RAM v. C. 1. 'l'. (Shult, J.)\n\n6D7\n\nbe determined on a consideration of all the faots and circumstances which are brought on the reoord of the income-tax authorities. It has consistently been held by this Court that the question whether profit in a transction h.as arisen out of an adventure in the nature of trade 1s a mixed questJon of law and fact: see G. Venkataswami Naidu & Company v. The Commissioner of Income-tax(') in which case this Court held that the expression \"adventure in the nature of trade\" in sub-s. (4) of s. 2 of the Act postulates the existence of certain elements in the adventure which in law would invest it with the c11araoter of trade or business and that a tribunal while considering a question whether a transaction is or is not an adventure in the nature of trade, before arriving at its final conclusion on facts, has to address itself to the legal requirements associated with the concept of trade or business. Such a question is one of mixed law and fact and the decision of the tribunal thereon is open' to consideration under s .. 66(1) of the Act.\n\nSee also Saroj Kumar Majumdar v. Commissioner of Income-tax, West Bengal(').\n\nA large number of cases were cited at the Bar in support of the respective contentions of the Commissioner and the assessee.\n\nPassages from judgments in the same case were often cited claiming support for the respective contentions.\n\nNo useful purpose would be served by entering upon a detailed analysis and review of the observations made in the light of the relevant facts. for no single fact has decisive significance, and the question whether a transaction is an adventure in the nature of trade must depend upon the collective effect of all the relevant materials brought on the record. But general criteria indicating that certain facts have dominant significance in the context of other facts have been adopted in the decided cases. If, for instance,, a transaction is related to the business which is normally carried on by the assessee, though not directly part of it. an intention to launch upon an adventure in the nature of trade may readily be inierred.\n\nA similar inference would arise where a commodity is purchased and sub-divided, altered, treated or repaired and sold, or is converted into a different commodity and then sold. Magnitude of the transaction of purchase, the nature of the commodity, subsequent dealings and the manner of disposal may be such that the transaction may be stamped with the character of a trading venture: for instance, a man who purchases a large quantity of aeroplane linen and sells it in different lots, and fOF the purpose of selling starts an advertising campaign, rents offices, engages an advertising manager, a linen expert and a staff of clerks, maintains account books normally used by a trader, and passes receipts and payments in connection with the linen through a separate banking account: Martin v. Lowry('): a person who carries on a money-lending business purchases very cheaply a\n\n('I [1959] Supp. 1 S.C.R. 646.\n\n(') 11 T.C. 297.\n\n(') 37 I, T.R. 242.\n\n608 SUPBEllE COURT BEPOBTS\n\n[1965] 3 8.C.B.\n\n• vast quantity of toilet paper and within a short time thereafter sells the whole consigrunent at a considerable profit: Rutledge v.\n\nThe Commissioner of Inland Revenue('); a person even though he has no special knowledge of the trade in wines and spirits, purchases a large quantity of whisky sells it without taking deli\n\nvery of it at a considerable profit: Commissioners of Inland Revenue v. Fraser('), may be presumed having regard to the nature of the commodity and extent of the transaction coupled with the other circumstances, to be carrying on an adventure in the nature of trade. These are cases of commercial commodities.\n\nBut a transaction of purchase of land cannot be assumed without more to be a venture in the nature of trade. A director of a company carrying on the business of warehouseman purchasing a number of houses with a view to resale, and selling them at a profit some years after the purchase: Commissioners of Inland Revenue v. Reinhold('): a person carrying on business in vario.us lines, including an Engineering Works, purchasing land which was under requisition by the Government, negotiating sale thereof before the land was derequisitioned, and selling it after the .Jand was released: Saroj Kumar Mazumdar v. Commissioner of Income-tax, West Bengal('); and a syndicate formed to acquire, an option over a rubber estate with a view to earn profit, and finding the estate acquired too small acquiring another estate and selling the two estates at a profit: Leeming v. Jones(') may not be regarded as commencing a venture in the nature of trade.\n\nThese are cases in which the commodity purchased and sold is not ordinarily commercial, and the manner of dealing with the commodity does not stamp the transaction as a trading venture.\n\nIt may be emphasized from an analysis of these cases that a profit motive in entering a transaction is not decisive, for, an accretion to capital does not become taxable income, merely because an asset was acquired in the expectation that it may be sold at profit.\n\nPurchase of the property by the appellant was an isolated transaction -not related to the business of the appellant.\n\nThe Tribunal and the High Court were, in our judgment, in error in holding that the right of the Company was not sold to the appellant in the lands in Sch. II and Sch. III properties. The land in Sch. II was leasehold, and on it was constructed a warehouse and the land in Sch. III was held as a licensee and two warehouses were standing thereon. The conveyance by the Company to the appellant is not on the record, but the recitals in the deed dated September 30. 1943 definitely indicate that the rights of the Company without any reservation were purchased by the appellant, and the appellant sold its entire rights in the properties in Schs. I,\n\n(') 14 T.C. 490 •.\n\n(') 24 T.C. 498.\n\n(') 34 T.C. 389.\n\n(') II T.C. 297.\n\n(') 16 T.C. 333.\n\n' H\n\nJANK! &All! II. C. I. T. (Shah, J.) 609\n\nII and III without any reservation. It is true that the appellant had put the factory in a working condition, but had not orgized a jute pressing business, had not obtained a licence for working the factory, had not attempted to secure orders for pressing jute, and had not employed l; ll>ourers. The appellant's claim that it was not so done because the appellant could not secure labourers has not been accepted. But that is not a decisive circumstane\" The factory was in the occupation of the lessee Ramnath Ba1ona and\n\npssession was obtained after August 10, 1943. But before t)le 10th of August an agreement of sale was execu!Cd by the appellant in favour of Ranada Praad Saha. In the J1ght of the sequence of events, the inference that the appellant had no intention to commence doing jute pressing business does not necessarily follow. Even if that inference be regarded as binding upon the Court it cannot be presumed that the sole intention of the appellant was to start a venture in. the nature of trade. BaITing the expectation of profit and realization of profit by sale of the property, there is no evidence bearing on the intention with which the property was purchased.\n\nIn the deed of conveyance daJted September 30, 1943 there is a reference to delivery of \"joists, girders, fabricated steel, C.I. roofs, bolts, nuts, hooks and ceiling planks, being portions of the materials of the godowns and structures\" standing OQ the land described in the third schedule. It was submitted that after purchasing the factory and the appurtenant premises the appellant demolished \"certain godowns\" in Sch. III land and sold the material as scrap. This, it was claimed, was-if not part of the business--a venture similar to the normal business of the appellant. But there is no evidence 1;1n the record as to how many warehouses stood originally on Sch. III land. The sale deed dated September 30, 1943 clearly states that there were two warehouses on steel-frames on the land held as licensee by the Company and possession of these was given to the purchaser Ranada Prasad Saha. Beside these warehouses, there were three warehouses on the land described in Sch. I and one warehouse on the land described in Sch. II. It is not claimed that these warehouses were insufficient for carrying on the business of jute pressing: nor is there any evidence that the warehouse or warehouses whiah were demolished were in a serviceable condition. The only fact which may be taken to be established is that a warehouse or warehouses were demolished by the appellant and the ma1erials were sold as part of the property. sold under the deed dated September 30, 1943. From this circumstance, an inference that the entire property was purchased with intent to demolish and dispose of as scrap cannot be raised.\n\nGranting that the appellant made a profitable bargain when he purchased the property, and granting further that the apoellant had when he purchased it a desire to sell the prooertv, if a favourable offer was forthcoming. these could not Without other\n\n610 SUPREME COUll.'l' REl'OR'J'8 [19u5j 3 8, C, R.\n\ncircumstances justify an inference that the appellant intended by purchasing the property to start .<i venture in the nature of trade.\n\nAbsence of advertisement inviting offers for purchasing the property, and absence of brokers in the negotiations for s.ale between the appellant and Ranada Prasad Saha, are circum ; tances which lead to no positive inference. There is nothing to show that the appellant desired to convert the property to some other use. No brokers were employed for entering into a transaction of sale.\n\nIt appears that Ranada Prasad Saha on coming to learn that the factory was for sale al?proached the Company after the sale deed was executed in favour of the appellant and he was inf01; med that it had already been sold to the appellant. Thereafter Saha contacted the appellant and agreed to purchase the property. The property purchased was not sudh that an inference that a venture in the nature of trade must have been intended by the appellant in respect thereof may be raised. A person purchasing a jute press may intend to start his own business even if he is not already in that busin~, s. or he may let it out on favourable terms.\n\nThe property purchased by the appellant was capable of being let out and it had in fact been let out by the Company before the date of sale in favour qf the appellant. It was capable of fetching annual income, and there is no evidence that at the material time it could not be reasonably let out.\n\nWe therefore discharge the answer given by the High Court in respect of the question submitted bf the Tribunal and record a negative answer. The appeal is allowed. The Commissioner to pay the costs in this Court and the High Court.\n\nAppeal allowed.", "total_entities": 46, "entities": [{"text": "JANKI RAM BAHADUR RAM", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "JANKI RAM BAHADUR RAM", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME TAX, CALCUTTA", "label": "RESPONDENT", "start_char": 26, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME TAX, CALCUTTA", "offset_not_found": false}}, {"text": "March 31, 1965", "label": "DATE", "start_char": 64, "end_char": 78, "source": "ner", "metadata": {"in_sentence": "JANKI RAM BAHADUR RAM v.\n\nCOMMISSIONER OF INCOME TAX, CALCUTTA\n\nMarch 31, 1965\n\n[K. SUBBA RAO, J. c. SHAH AND s. M. Suau, JJ.J In<iian Income-tax Act, 1922 (11 of 1922), s. 10-Purcluise of a different business-Sale-Profit-If taxable."}}, {"text": "K. SUBBA RAO, J.", "label": "JUDGE", "start_char": 81, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "c. SHAH", "label": "JUDGE", "start_char": 98, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 135, "end_char": 155, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10", "label": "PROVISION", "start_char": 170, "end_char": 175, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 1799, "end_char": 1818, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated September 10, 1962 of the Calcutta High Court in Income-tax Reference No."}}, {"text": "A. V. Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 1861, "end_char": 1884, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, B. Sen Gupta and P. K. Ghosh, for the appellant."}}, {"text": "B. Sen Gupta", "label": "OTHER_PERSON", "start_char": 1886, "end_char": 1898, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, B. Sen Gupta and P. K. Ghosh, for the appellant."}}, {"text": "P. K. Ghosh", "label": "OTHER_PERSON", "start_char": 1903, "end_char": 1914, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, B. Sen Gupta and P. K. Ghosh, for the appellant."}}, {"text": "N. D. Karkhanis", "label": "OTHER_PERSON", "start_char": 1936, "end_char": 1951, "source": "ner", "metadata": {"in_sentence": "N. D. Karkhanis and R. N. Sachthey, for the respondent."}}, {"text": "R. N. Sachthey", "label": "OTHER_PERSON", "start_char": 1956, "end_char": 1970, "source": "ner", "metadata": {"in_sentence": "N. D. Karkhanis and R. N. Sachthey, for the respondent."}}, {"text": "Shah", "label": "JUDGE", "start_char": 2038, "end_char": 2042, "source": "ner", "metadata": {"in_sentence": "The Judgment of the C, ourt was delivered by Shah, J. The appellant .is a Hindu undivided family and carries on business as a dealer in \"iron scrap and hardware\"."}}, {"text": "Hoare Miller and Company Ltd.-hereinafter", "label": "PETITIONER", "start_char": 2165, "end_char": 2206, "source": "ner", "metadata": {"in_sentence": "Messrs. Hoare Miller and Company Ltd.-hereinafter called 'the Company'-were owners of a jute pressing factory installed on a piece of land belonging to the Company."}}, {"text": "Government of West\n\n6Q<l\n\n• F\n\nJANKI 11AM", "label": "ORG", "start_char": 2445, "end_char": 2486, "source": "ner", "metadata": {"in_sentence": "Adjacent to that land were two pieces of land: one was leasehold, and the other held by the Company as a licensee from the Government of West\n\n6Q<l\n\n• F\n\nJANKI 11AM: v. c. I. T. (Shah, J.)\n\nBengal."}}, {"text": "January 21, 1941", "label": "DATE", "start_char": 2523, "end_char": 2539, "source": "ner", "metadata": {"in_sentence": "On January 21, 1941 the Company leased out to one Ramnath Bajoria the jute pressing factory together with the machinery standing on the land owned by the Company for ten months commencing from January 10, 1941."}}, {"text": "Ramnath Bajoria", "label": "RESPONDENT", "start_char": 2570, "end_char": 2585, "source": "ner", "metadata": {"in_sentence": "On January 21, 1941 the Company leased out to one Ramnath Bajoria the jute pressing factory together with the machinery standing on the land owned by the Company for ten months commencing from January 10, 1941.", "canonical_name": "Ramnath Bajoria"}}, {"text": "January 10, 1941", "label": "DATE", "start_char": 2713, "end_char": 2729, "source": "ner", "metadata": {"in_sentence": "On January 21, 1941 the Company leased out to one Ramnath Bajoria the jute pressing factory together with the machinery standing on the land owned by the Company for ten months commencing from January 10, 1941."}}, {"text": "October 31, 1942", "label": "DATE", "start_char": 2950, "end_char": 2966, "source": "ner", "metadata": {"in_sentence": "By an agreement dated October 31, 1942 the appellant agreed to purchase all the rights of the Company in the factory and the appurtenant premises for Rs."}}, {"text": "November 14, 1942", "label": "DATE", "start_char": 3095, "end_char": 3112, "source": "ner", "metadata": {"in_sentence": "On November 14, 1942 the Company delivered to the appellant possession of the property agreed to be sold, save and except the factory demised under the lease to Ramnath Bajoria and the machinery included in the lease."}}, {"text": "February 26, 1943", "label": "DATE", "start_char": 3313, "end_char": 3330, "source": "ner", "metadata": {"in_sentence": "On February 26, 1943 the Company executed a conveyance in favour of the appellant conveying the factory and the appurtenant premises."}}, {"text": "June 12, 1943", "label": "DATE", "start_char": 3448, "end_char": 3461, "source": "ner", "metadata": {"in_sentence": "On June 12, 1943 the appellant agreed to sell to one Ranada Prasad Saha the property purchased from the Company for Rs."}}, {"text": "Ranada Prasad Saha", "label": "OTHER_PERSON", "start_char": 3498, "end_char": 3516, "source": "ner", "metadata": {"in_sentence": "On June 12, 1943 the appellant agreed to sell to one Ranada Prasad Saha the property purchased from the Company for Rs.", "canonical_name": "Ranada Prasad Saha"}}, {"text": "August 10, 1943", "label": "DATE", "start_char": 3614, "end_char": 3629, "source": "ner", "metadata": {"in_sentence": "On August 10, 1943 the appellant was substituted as a plaintiff in the suit filed by the Company against Ramnath Bajoria, and obtained possession of the factory premises."}}, {"text": "September 30, 1943", "label": "DATE", "start_char": 3812, "end_char": 3830, "source": "ner", "metadata": {"in_sentence": "By a deed of conveyance dated September 30, 1943 the appellant conveyed to Ranada Prasad Saha the factory and the appurtenant premises and delivered possession thereof."}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 4038, "end_char": 4048, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule II", "label": "PROVISION", "start_char": 4144, "end_char": 4155, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 4224, "end_char": 4236, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of West Bengal", "label": "ORG", "start_char": 4302, "end_char": 4327, "source": "ner", "metadata": {"in_sentence": "Schedule I; Press House, bffice, residential buildings and three warehouses on land owned by the Company: Schedule II; leasehold land together with a warehouse known as Kalibari godown: Schedule III; two warehouses on land held as licensee by the Company from the Government of West Bengal."}}, {"text": "Calcutta", "label": "GPE", "start_char": 4370, "end_char": 4378, "source": "ner", "metadata": {"in_sentence": "Calcutta, brought to tax in the hands of the appellant Rs."}}, {"text": "High Court of Judicature at Calcutta", "label": "COURT", "start_char": 4716, "end_char": 4752, "source": "ner", "metadata": {"in_sentence": "The Tribunal then drew up a statement of case and referred the following question to the High Court of Judicature at Calcutta:\n\n\"Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the surplus of Rs."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 5478, "end_char": 5483, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 6733, "end_char": 6743, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 6751, "end_char": 6778, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(4)", "label": "PROVISION", "start_char": 6916, "end_char": 6923, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "October 1, 1942", "label": "DATE", "start_char": 7300, "end_char": 7315, "source": "ner", "metadata": {"in_sentence": "To reiterate the sequence , of material events: the appellant agreed to purchase the Jute Press from the Company on October 1, 1942 subject to litigation pending in the High Court of Calcutta: possession of the property except the premises in the occupation of the tenant was obtained on November 14, 1942 'and the sale' deed was obtained on February 26, 1943: on June 12, 1943 the appellant agreed to sell the press to Ranada Prasad Saha: on Auust 10, 1943 tlJe appellant was substituted as plaintiff in the smt filed by the' Company against Ramnath Bajoria, and after obtaining possession of the demised premises the appellant executed on September 30, 1943 a sale deed conveying the property and delivered possession to Ranada Prasad Saha."}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 7353, "end_char": 7375, "source": "ner", "metadata": {"in_sentence": "To reiterate the sequence , of material events: the appellant agreed to purchase the Jute Press from the Company on October 1, 1942 subject to litigation pending in the High Court of Calcutta: possession of the property except the premises in the occupation of the tenant was obtained on November 14, 1942 'and the sale' deed was obtained on February 26, 1943: on June 12, 1943 the appellant agreed to sell the press to Ranada Prasad Saha: on Auust 10, 1943 tlJe appellant was substituted as plaintiff in the smt filed by the' Company against Ramnath Bajoria, and after obtaining possession of the demised premises the appellant executed on September 30, 1943 a sale deed conveying the property and delivered possession to Ranada Prasad Saha."}}, {"text": "Auust 10, 1943", "label": "DATE", "start_char": 7627, "end_char": 7641, "source": "ner", "metadata": {"in_sentence": "To reiterate the sequence , of material events: the appellant agreed to purchase the Jute Press from the Company on October 1, 1942 subject to litigation pending in the High Court of Calcutta: possession of the property except the premises in the occupation of the tenant was obtained on November 14, 1942 'and the sale' deed was obtained on February 26, 1943: on June 12, 1943 the appellant agreed to sell the press to Ranada Prasad Saha: on Auust 10, 1943 tlJe appellant was substituted as plaintiff in the smt filed by the' Company against Ramnath Bajoria, and after obtaining possession of the demised premises the appellant executed on September 30, 1943 a sale deed conveying the property and delivered possession to Ranada Prasad Saha."}}, {"text": "Ramnath Bajoria", "label": "RESPONDENT", "start_char": 7727, "end_char": 7742, "source": "ner", "metadata": {"in_sentence": "To reiterate the sequence , of material events: the appellant agreed to purchase the Jute Press from the Company on October 1, 1942 subject to litigation pending in the High Court of Calcutta: possession of the property except the premises in the occupation of the tenant was obtained on November 14, 1942 'and the sale' deed was obtained on February 26, 1943: on June 12, 1943 the appellant agreed to sell the press to Ranada Prasad Saha: on Auust 10, 1943 tlJe appellant was substituted as plaintiff in the smt filed by the' Company against Ramnath Bajoria, and after obtaining possession of the demised premises the appellant executed on September 30, 1943 a sale deed conveying the property and delivered possession to Ranada Prasad Saha.", "canonical_name": "Ramnath Bajoria"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 8752, "end_char": 8756, "source": "regex", "metadata": {"statute": null}}, {"text": "September 30. 1943", "label": "DATE", "start_char": 13955, "end_char": 13973, "source": "ner", "metadata": {"in_sentence": "The conveyance by the Company to the appellant is not on the record, but the recitals in the deed dated September 30."}}, {"text": "Ramnath Ba1ona", "label": "RESPONDENT", "start_char": 14795, "end_char": 14809, "source": "ner", "metadata": {"in_sentence": "But that is not a decisive circumstane\" The factory was in the occupation of the lessee Ramnath Ba1ona and\n\npssession was obtained after August 10, 1943.", "canonical_name": "Ramnath Bajoria"}}, {"text": "10th of August", "label": "DATE", "start_char": 14877, "end_char": 14891, "source": "ner", "metadata": {"in_sentence": "But before t)le 10th of August an agreement of sale was execu!Cd by the appellant in favour of Ranada Praad Saha."}}, {"text": "Ranada Praad Saha", "label": "OTHER_PERSON", "start_char": 14956, "end_char": 14973, "source": "ner", "metadata": {"in_sentence": "But before t)le 10th of August an agreement of sale was execu!Cd by the appellant in favour of Ranada Praad Saha.", "canonical_name": "Ranada Prasad Saha"}}, {"text": "Saha", "label": "OTHER_PERSON", "start_char": 18167, "end_char": 18171, "source": "ner", "metadata": {"in_sentence": "Thereafter Saha contacted the appellant and agreed to purchase the property."}}]}
{"document_id": "1965_3_611_618_EN", "year": 1965, "text": "COMMISSIONER OF INCOME TAX v.\n\nMUGNEERAM BANGUR & CO.\n\nMarch 31, 1965\n\n[K. SUBBA RAO, J. C. SHAH AND S'. M. S!KRI, JJ .]\n\nIncome-tax Act (11 of 1922)-Sale of going concern-Slump price B -When part attributable to stock-in-trade.\n\nThe business of the assessee firm, carrying on land development business was sold as a going concern to a company promoted by the assessee ::; partners. The purchase price included sums for th.e val':1e of land, goodwill, etc. The amount shown as the valuie of th.e goodWlll \\?as sought to be aseessed to income-tax on the grounds (1) that the\n\nassessee's business was purely one of buying and selling land and (ii) the amount was profit attributable to the sale of land which was the stock-in-trade of the assessee. In appeal to this Court.\n\nHELD: On the facts of this case it could not be said that the £ssessees were carrying on the business of l)Urely buying and selling land. They were engaged in buying land, developing it and then selling it. The sale was the sale of the whole concern and no part of the slump price was attributable to the cost of the land. If that was so, no part of it was taxoble. [617H-618A, E] Commissioner of Income-tax, Kerala v. We.st Coast Chemical and Industries Ltd. 46 IT.R. 135 and Doughty v. Commissioner of Taxes\n\n(1927) A.C. 327, applied.\n\nIn the case of a concern carrying on the business of buying land, developing it a-·! the selLing it, it is easy to distinguish a realisation sale from an ordinarv sale. and it is verv difficult to attribute part of the slump price to the cost of land sold in the realisation sale. The mer~ fact that in the schedule the price of land was stated did not lead to the conclusion that part of the slump price was necessarily attributable to the land sold. There was no evidence that any attempt was made to evaluate the land on the date of sale. As the assessees \\Vere transferring the concern to a company, c0nstituted by the assessees themselves, no effort would ordinarily have been made to evaluate the land as on the date of sale. r618B-D]\n\nCIVIL APPELLATE JURISDICTION:' Civil Appeal No. 310of1964.\n\nAppeal by special leave from the judgment and order dated December 13, 1961 of the Calcutta High Court in Income-tax Reference No. 7 4 of 1956.\n\nN. D. K arkhanis, Go pal Singh and R. N. Sachthey, for the appellant.\n\nA. V. Viswanatha Sastri, S. Murthy and B. P. Maheshwari, for the respondent.\n\nB The Judgment of the Court was delivered by\n\nSikri, J.\n\nThis is an aopeal by special leave directed against the judment of the High Court at Calcutta in a reference under\n\n• 611\n\nSUPREME COURT REPORTS\n\n[1965] 3 S.C.R,\n\ns. 66 of the Income Tax Act. The four questions referred to the High Court by the Income Tax Appellate Tribunal are:\n\n\"(!) Whether on the facts and circumstances of this case the Income-tax Officer, Centra:l Circle XIV, Calcutta, was competent to file the appeal before the Tribunal against the order of the Appellate Assistant Commissioner of Income Tax, Range-A, Calcutta?\n\n(2) Whether on the facts and circumstances of this case the sum of Rs. 2,50,000 represented the surplus on the sale of lands which was the stock in trade of the assessee company or was the value of goodwill alleged to have been transferred?\n\n(3) Whether on the fac.ts and circumstances of this case by the sale of the whole business concern it could be held. that there was taxable profit in the sum of Rs. 2,50,000?\n\n(4) Whether on the facts and circumstances of this case and fo view of the findings of the Tribunal that the entire share capital of the vendee company (excepting seven ordinalry shares) was taken over by the vendOF firm in lieu of the sale price of the business as a whole, there was any profit in the amount of Rs. 2,50,000 the same being taxable undr the Indian Income Tax Act?\n\nThe relevant facts and circumstances are these. The respondent, MI s Mugneeram Bangur & Co. (Land Department) Calcutta (hereinafter referred to as the vendors) were a firm carrying on the business of land development in Calcutta. By an agreement dated July 7, 1948, the partners of the firm agreed to sen all the business of the said firm to the Amalgamated Development Limited, hereinafter called the vendee, which company was promoted by the partners of the firm. The relevant paragraphs of the said agreement are as fonows :\n\n\"And Whereas the Vendors have agreed to sen and the company has agreed to purchase an the said business on the basis hereinafter set out.\n\nNow it is hereby agreed and declared between the parties as fonows: - I. The Vendors do )Jereby agree to sen and the company doth hereby agree to purchase All That the said . business with effect from the eighth day of July\n\nOne thousand nine hundred and forty, eight. Togethet with the goodwin of the said business And all stock ii) trade, fixtures, tools, implements, furniture, fittings and an other articles and things belonging to the said business or in any way used in the same including the benefit and advantages of all contracts.\n\n2. The purchase price shall be Rupees thirtyfour lakhs nintynine thousand and three hundred paid and satisfied by the Company allotting to the Vendors or their nominees seventeen thousand five hundred Redeemable Preference shares of Rupees one hundred each and seventeen thousa<nd four hundred and ninetythree Ordinary shares of Rupees one hundred each in the capital of the Company which will be accepted by the Vendors in full satisfaction of the said purchase price.\n\n3. The Company shall undertake and discharge all debts and liabilities of the Vendors including development expenses such as opening out roads, laying out drains and sanitary arrangements providing electricity in the areas and providing a School in Tollygunge for educaJtion of Children for which the Vendors have given an undertaking to the Tvllygunge Municipality and also the liability of the Vendors in respect of the deposits made with them by various intending purchasers of lands but excluding the liabilities of the Vendors for Income-tax, Super-tax or any other tax or duty on income or revenue in respect of the profits of the business\".\n\nThe sum of Rs. 34,99 ,300 was arrived at in the Schedule thus: •\n\n1. Land\n\n2. Goodwill\n\n3. Motor Car & Lorries\n\n4. Furniture, Fixture etc.\n\n5. Mortgage secured\n\n6. Deposits for purchase of land\n\n(In rupees) 12,68,628 7 7\n\n2,50,000 0 0\n\n25,866 8 6\n\n5,244 5 6\n\n. . 71,62,367 6 0\n\n53,500 0 0\n\n7. Advance paid to pleaders solicitors, contractors' staff and other\n\noutstandini; s 1,83,622 3 6\n\n8. Cash in Bank 71,800 I 8\n\n36,21,029 0 g\n\nLess liabilities 1,21,729 0 9\n\n34,99,300 0 0\n\nSU PKJ!ME CO IJRT REPORTS\n\n[!965) 3 S.CR.\n\nThe consideration of Rs. 34,99 ,300 was paid by allotment of 17,500 Redeemable Preference shares of Rs. 100 each and .17,493 Ordinary shares of Rs. 100 each, the allotmnt being to the vendors-partners or their nominees. Thus. the vendors received shares of the face value of Rs. 34,99 ,300 for the aJSsets transferred to the company.\n\nThe Income Tax Officer held that the sum of Rs. 2,50,000 was actually charged by the vendors as a lump sum amount of profits on sale of valuable stock in trade and not goodwill as alleged. The Appellate Assistant Commissioner, on appeal, held that the said sum of Rs. 2,50,000 was the value of the goodwill.\n\nHe further held that .since the transfer was a transfer of business as a going concern, the profit was the capital gain and therefore not liable to tax. Relying on Doughty v. Commissioner of Taxes,(') he held that as \"the transfer is a transfer of all assets of the firm to a company the transfer is a capital sales\".\n\nThe Income Tax Officer filed an appeal before the Appellate Tribunal. The Appellate Tribunal held that although the sale was the sale of a business as a going concern,. the value of the stock could be traced, and, therefore, the profits arising out of the sale was taxable income. Regarding the goodwill, the Tribuna.I observed:\n\n\"We do not think. that there was much value of the goodwill of the business that was transferred. Mugneeram Bangur & Co. was a firm constituting ofseveral partners and Mugneeram Bangur & Co.\n\nLand Department was a seprurate firm consisting of the same partners with. however. different shares in the firm Mugneeram Bangur & Co. were also carrying on business in lands and buildings along with its activities in other businesses. our attention was drawn by the Department Representative to the fact that in .. the case of transfer of lands and buildins of the assessee firm the cm1veyances were as a rule executed in the name of Mugneeram Bangur & Co.\n\nThe assessee's learned Counsel did not object to this fact.\n\nWe are therefore accepting it as oorrect. If so, there was nothing in the nalme of Mugneeram Bangur & Co. Land Department. The conversion of the said firm into a Company in an entirelv different name would also indicate that not much of imoortance was attached to the name of Mugneeram Bangur & Co.\n\nLand Deparln)ent. In the circumstances, in our opinion, the orice paid bv the ourcbase Comoanv was not on the consideration of the goodwill of the\n\n~) [1927J'A.C. 327.\n\nC. I. 1'. V. MUGNEERAM & UO. (f3.ikri, J,) 615\n\nvendors but upon taking over the entire going concern and paying the consideration not in money but by allotment of shares. In such circumstances, the surplus was out of the sale of the business as a whole, including the stock in trade of the assessee firm. Since the other assets transferred had definite yalue which would not increase in value by the process of transfer, the only value that could increase was the value of the stock in hand, that being the land in the present case.\n\nIn our opinion, therefore, the amount of Rs. 2,50,000 was really the excess value of the lands sold along with the other assets\".\n\nBut the Tribunal dismissed the appal on the ground that although the vendors were a different entity from the vendee, the first being a partnership and the second being a limited company, the transaction was mere adjustment of the business position of the pa'tners. It further observed that the Income Tax Department was not entitled to take mere book-keeping entries as the evidence of any profit in the matter.\n\nThe High Court first answered question No. 4, thus:\n\n\"There was no profit in the transaction by which the entire stock in trade and the business of the firm were transferred to the lirnited company. Again the fact that two outsiders were brought in as directors with seven shares allotted to them out of 39 ,300 shares makes no difference. In Sir Homi Mehta's case 400 shares out of 6,000 shares were allotted to Sir Homi Mehta's sons. Nor again cam I see any difference in principle between the case of conversion of business into a private limited company and one in which it is converted into a public limited company if in the latter company outsiders are not allotted any sizeable proportion of the shares issued\".\n\nThe High Court felt that this answer was enough to dispose of the matter, but as questions 2 and 3 had been referred, they answered them. Regarding question No. 2, the High Court held that \"as the assets of the firm transferred to the company have been itemised and as there can be no question of variation of the figares given in items 3 to 8 in the agreement for sale, it must be held that Rs. 2,50,000 shown as the value of the goodwill must be represented by surplus on the sale of lands which was the stock-in-trade of the assessee company\". Regarding question No. 3, the High Court held that even if the value of the stock in trade taken over by the assessee was greater . than the figure shown therefor in the i1greement for sale in view of the answer to question 4, there ·, vas no profit which could he taxed.\n\n'(i 'Ii\n\n:o.;1'l'HJ:~1•: ('Olllt'I' H.g1'1Ht'l'H I I 9fi!i l !l s.c.a.\n\nWe may mention that it is not necessary to deal with question A No. I because it was given up before the High Court. Mr.\n\nKarkhanis. learned counsel for the appellant. urges that the Doughty's case(') was wrongly decided in one respect and that the vendors and the vendee being different entities. it is not permissible to tear the corporate veil to see whether the partners of th~· vendors were the same persons as the shareholders of the vendee. He says that if the veil is not torn, then there was a sale by the vendors to the vendee and profits arose out of the sale.\n\nLearned counsel for the respondent, Mr. Viswanatha Sastri, says that if the third question is answered in his favour. it would not be necessary to deal with the other questions. As we are inclined to answer the third question in the favour of the vendors, it is not necessary to deal with the other questions and the arguments addressed in respect of them.\n\nThe Appellate Tribunal held in this case that the sale .was a sale of business as a going concern. This is also apparent from clause 1 of the agreement set out above. If this is so Doughty's case(') <jpplies. The facts in Doughty's case may be conveniently taken from the headnote in that case. \"In 1920, two partners carrying Off business in New Zealand as general merchants and drapers sold the partnership business to a limited company in which they beca, me the only shareholders. The sale was of the entire assets, including goodwill, the consideration being fully paid shares, and an agreement by the company to discharge all the liabilities. The. nominal value of the shares being more than the sum to the credit of the capital a1ccouni of the partnership, in its last balance sheet. a new balance sheet was prepared showing a larger value for the stock in trade. The Commissioner of Taxes treated the increase in value so shown as a profit on the sale of the stock in trade, and assessed the appellant upon it for income tax under the Land and Inoome Tix Act, 1916, of New Zealand, which imposes the tax on all .profits or gains derived from any business\"\n\nThe Privy Council decided the case in favour of the appellant on two grou.nds, the first being that \"if the transaction is to be treated as a sale, there was no separate sale of the stock, and no valuation of the stock as an item forming part of the aggregate wh.ich was sold\". In connection with this ground, Lord Phillimore observed that \"income-tax being a tax upon income, it is well established that the sale of a whole concern which cal'l be shown to be a sale at a profit as compared with the price given for the business, or at which it stands in the books does not give rise to a profit taxable to income-tax\". He further observed that \"where, however, the business consists, as in the present case, entirely in buying and selling, it is more difficult to distinguish between an ordinary and a realization sale, the\n\n(') (1927] A.O. 327.\n\nobject in either case being to dispose of goods at a higher price than that given for them, and thus to make a profit out of the business. The fact that large blocks of stock are sold does not render the profit obtained anything different in kind from the profit obtained by a series of gradual and smaller sales.\n\nThis might even be the case if the whole stock waJS sold out in one sale. Even in the case of a realization sale, if there were an item which could be traced as representing the stock sold, the profit obtainej by that sale, though made in conjunction with a sale of the whole concern, might conceivably be treated .a:s taxable income\". Lord Phillimore concluded with the following observations:\n\n\"If a business be one of purely buying and selling, like the present, a profit made by the sale of the whole of the stock, if it stood by itself, might well be assess' ab1e to incoinc tax; but their view of the facts (if it be open to them to consider the facts) is the same as that of Stout C.J.-that is, that this was a slump transaction''.\n\nThis Court, in Commissioner of Income-tax, Kerala v. West Coast Chemicals and Industries Ltd.(') understood the Doughty's\n\ncase(') thus:\n\n\"This case shows that where a slump price is paid and no portion is attributable to the stock-in-trade, it may not be possible to hold that there is a profit other than what results from the appreciation of capital. The essence of the matter, however, is not that an extra amount has been gained by the selling out or the exchange but whether it can fairly be said that there was a trading from which alone profits can arise in business\".\n\nIt follows from the above that once it is accepted that there was a slump transaction in this case, i.e. that the business was sold as a. ping concern, the only question that remains is whether any portion of the slump price is attributable to the stock in trade\n\nThe learned counsel for the appellant relies on two grounds to support the contention that there is profit attributable to the so1Ie of land which was stock-in-trade of the vendors. He says first that in the schedule to the agreement the value of hmd and the value of goodwill and other items is specified. He says that\n\nalthogh the amount of Rs. 2,50.000 was shown as price of goodw11l, 1t .was really excess value of the land sold along with other assets. Secondly. he says, relying on the passage already cited above from Daughty's case(') that the vendors' l:iusiness was a business of purely buying and selling land. In our opinion, on the facts of this case it cannot be said that the vendors were carrying on the business of purely buying and selling land. In\n\n(') 46 I.T.R. 135.\n\n(') [1927] A.C. 327.\n\nSUPREMB COURT REMRTS [1965] 3 s.a.a.\n\nthis case the vendors were engaged in buying land, developing it and then selling it. The agreement itself shows that the venaors had already i:lcurred debts and liabilities for development expenses such as opening out roads, laying out drains and sanitary arrangements, providing electricity and providing for a school.\n\nIt seems to us that in the case of a concern carrying on the business of buying land, developing it and then selling it, it is easy to distinguish a realisation sale from an ordinary sale, and it is very difficult to attribute part of the slump price to the cost of land sold in the realisation sale. The mere fact that in the schedule the price of land is stated does not lead to the conclusion that part of the slump price is necessarily attributable to the land sold.\n\nThere is no evidence that any attem.Pt was made to evaluate the land on the date of sale. As the vendors were transferring the concern to a compny, constituted by the vendors themselves, no effort would ordinarily have been made to evaluate the land as on the date of sale. What was put in the schedule was the cost price, as it stood in the books of the vendors. Even if the sum of Rs. 2,50,000. attributed to goodwill is added to the cost of land, it is nobody's case that this represented the market value , of the land.\n\nIn our view the sale was the sale of the whole concern and no part of the slump price is attributable to the cost of land.\n\nIf this is so, .it is clear from the decision of tpis Court in Commissioner of Income-tax, Kera/a v. West Coast Chemicals and\n\nInus11:ies Ltd.(') and Doughty's case(') that no part of the slump pnce 1s taxable. We, therefore, answer question No. 3 in the negative. As stated before, in view of this answer, it is not neces-'\n\nsary to a1.1Swer questions Nos. 2 and 4.\n\nThe appeal is accordingly dismised with costs.\n\n(') 46 I.T.R. 135.\n\n(') (1927) A.C. 327.\n\nAppeal dismissed.\n\n\" ,", "total_entities": 36, "entities": [{"text": "COMMISSIONER OF INCOME TAX", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME TAX", "offset_not_found": false}}, {"text": "MUGNEERAM BANGUR & CO", "label": "RESPONDENT", "start_char": 31, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "MUGNEERAM BANGUR & CO", "offset_not_found": false}}, {"text": "March 31, 1965", "label": "DATE", "start_char": 55, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "March 31, 1965\n\n[K. SUBBA RAO, J. C. SHAH AND S'."}}, {"text": "K. SUBBA RAO, J.", "label": "JUDGE", "start_char": 72, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 89, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 122, "end_char": 136, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 2053, "end_char": 2081, "source": "ner", "metadata": {"in_sentence": "r618B-D]\n\nCIVIL APPELLATE JURISDICTION:' Civil Appeal No."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 2196, "end_char": 2215, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated December 13, 1961 of the Calcutta High Court in Income-tax Reference No."}}, {"text": "N. D. K arkhanis", "label": "LAWYER", "start_char": 2258, "end_char": 2274, "source": "ner", "metadata": {"in_sentence": "N. D. K arkhanis, Go pal Singh and R. N. Sachthey, for the appellant."}}, {"text": "Go pal Singh", "label": "LAWYER", "start_char": 2276, "end_char": 2288, "source": "ner", "metadata": {"in_sentence": "N. D. K arkhanis, Go pal Singh and R. N. Sachthey, for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 2293, "end_char": 2307, "source": "ner", "metadata": {"in_sentence": "N. D. K arkhanis, Go pal Singh and R. N. Sachthey, for the appellant."}}, {"text": "A. V. Viswanatha Sastri", "label": "LAWYER", "start_char": 2329, "end_char": 2352, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, S. Murthy and B. P. Maheshwari, for the respondent."}}, {"text": "S. Murthy", "label": "LAWYER", "start_char": 2354, "end_char": 2363, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, S. Murthy and B. P. Maheshwari, for the respondent."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 2368, "end_char": 2384, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, S. Murthy and B. P. Maheshwari, for the respondent."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 2453, "end_char": 2458, "source": "ner", "metadata": {"in_sentence": "B The Judgment of the Court was delivered by\n\nSikri, J.\n\nThis is an aopeal by special leave directed against the judment of the High Court at Calcutta in a reference under\n\n• 611\n\nSUPREME COURT REPORTS\n\n[1965] 3 S.C.R,\n\ns. 66 of the Income Tax Act."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 2627, "end_char": 2632, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta", "label": "GPE", "start_char": 2847, "end_char": 2855, "source": "ner", "metadata": {"in_sentence": "Whether on the facts and circumstances of this case the Income-tax Officer, Centra:l Circle XIV, Calcutta, was competent to file the appeal before the Tribunal against the order of the Appellate Assistant Commissioner of Income Tax, Range-A, Calcutta?"}}, {"text": "Mugneeram Bangur & Co. (Land Department) Calcutta", "label": "ORG", "start_char": 3872, "end_char": 3921, "source": "ner", "metadata": {"in_sentence": "The respondent, MI s Mugneeram Bangur & Co. (Land Department) Calcutta (hereinafter referred to as the vendors) were a firm carrying on the business of land development in Calcutta."}}, {"text": "July 7, 1948", "label": "DATE", "start_char": 4055, "end_char": 4067, "source": "ner", "metadata": {"in_sentence": "By an agreement dated July 7, 1948, the partners of the firm agreed to sen all the business of the said firm to the Amalgamated Development Limited, hereinafter called the vendee, which company was promoted by the partners of the firm."}}, {"text": "Amalgamated Development Limited", "label": "ORG", "start_char": 4149, "end_char": 4180, "source": "ner", "metadata": {"in_sentence": "By an agreement dated July 7, 1948, the partners of the firm agreed to sen all the business of the said firm to the Amalgamated Development Limited, hereinafter called the vendee, which company was promoted by the partners of the firm."}}, {"text": "Tollygunge", "label": "GPE", "start_char": 5732, "end_char": 5742, "source": "ner", "metadata": {"in_sentence": "The Company shall undertake and discharge all debts and liabilities of the Vendors including development expenses such as opening out roads, laying out drains and sanitary arrangements providing electricity in the areas and providing a School in Tollygunge for educaJtion of Children for which the Vendors have given an undertaking to the Tvllygunge Municipality and also the liability of the Vendors in respect of the deposits made with them by various intending purchasers of lands but excluding the liabilities of the Vendors for Income-tax, Super-tax or any other tax or duty on income or revenue in respect of the profits of the business\"."}}, {"text": "Tvllygunge Municipality", "label": "ORG", "start_char": 5825, "end_char": 5848, "source": "ner", "metadata": {"in_sentence": "The Company shall undertake and discharge all debts and liabilities of the Vendors including development expenses such as opening out roads, laying out drains and sanitary arrangements providing electricity in the areas and providing a School in Tollygunge for educaJtion of Children for which the Vendors have given an undertaking to the Tvllygunge Municipality and also the liability of the Vendors in respect of the deposits made with them by various intending purchasers of lands but excluding the liabilities of the Vendors for Income-tax, Super-tax or any other tax or duty on income or revenue in respect of the profits of the business\"."}}, {"text": "s 1", "label": "PROVISION", "start_char": 6505, "end_char": 6508, "source": "regex", "metadata": {"statute": null}}, {"text": "Mugneeram Bangur & Co.", "label": "ORG", "start_char": 8044, "end_char": 8066, "source": "ner", "metadata": {"in_sentence": "Mugneeram Bangur & Co. was a firm constituting ofseveral partners and Mugneeram Bangur & Co.\n\nLand Department was a seprurate firm consisting of the same partners with."}}, {"text": "V. MUGNEERAM", "label": "JUDGE", "start_char": 9138, "end_char": 9150, "source": "ner", "metadata": {"in_sentence": "V. MUGNEERAM & UO. ("}}, {"text": "Sir Homi Mehta", "label": "OTHER_PERSON", "start_char": 10551, "end_char": 10565, "source": "ner", "metadata": {"in_sentence": "In Sir Homi Mehta's case 400 shares out of 6,000 shares were allotted to Sir Homi Mehta's sons."}}, {"text": "Homi Mehta", "label": "OTHER_PERSON", "start_char": 10625, "end_char": 10635, "source": "ner", "metadata": {"in_sentence": "In Sir Homi Mehta's case 400 shares out of 6,000 shares were allotted to Sir Homi Mehta's sons."}}, {"text": "Karkhanis", "label": "LAWYER", "start_char": 11943, "end_char": 11952, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nKarkhanis."}}, {"text": "Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 12434, "end_char": 12451, "source": "ner", "metadata": {"in_sentence": "Learned counsel for the respondent, Mr. Viswanatha Sastri, says that if the third question is answered in his favour."}}, {"text": "clause 1", "label": "PROVISION", "start_char": 12878, "end_char": 12886, "source": "regex", "metadata": {"statute": null}}, {"text": "Doughty", "label": "OTHER_PERSON", "start_char": 12933, "end_char": 12940, "source": "ner", "metadata": {"in_sentence": "If this is so Doughty's case(') <jpplies.", "canonical_name": "Doughty"}}, {"text": "New Zealand", "label": "GPE", "start_char": 13095, "end_char": 13106, "source": "ner", "metadata": {"in_sentence": "In 1920, two partners carrying Off business in New Zealand as general merchants and drapers sold the partnership business to a limited company in which they beca, me the only shareholders."}}, {"text": "Land and Inoome Tix Act, 1916", "label": "STATUTE", "start_char": 13795, "end_char": 13824, "source": "regex", "metadata": {}}, {"text": "Phillimore", "label": "OTHER_PERSON", "start_char": 14232, "end_char": 14242, "source": "ner", "metadata": {"in_sentence": "In connection with this ground, Lord Phillimore observed that \"income-tax being a tax upon income, it is well established that the sale of a whole concern which cal'l be shown to be a sale at a profit as compared with the price given for the business, or at which it stands in the books does not give rise to a profit taxable to income-tax\"."}}, {"text": "Daughty", "label": "OTHER_PERSON", "start_char": 17187, "end_char": 17194, "source": "ner", "metadata": {"in_sentence": "he says, relying on the passage already cited above from Daughty's case(') that the vendors' l:iusiness was a business of purely buying and selling land.", "canonical_name": "Doughty"}}, {"text": "SUPREMB COURT REMRTS [1965] 3 s.a.a", "label": "COURT", "start_char": 17472, "end_char": 17507, "source": "ner", "metadata": {"in_sentence": "SUPREMB COURT REMRTS [1965] 3 s.a.a."}}]}
{"document_id": "1965_3_619_625_EN", "year": 1965, "text": "COMMISSIONER OF INCOMETAX, ANDHRA PRADESH\n\nTHE COCANADA BANK LTD. KAKINADA April 2; 1965 [K. SUBllA RAO, J.C. SHAH ANDS. M. SIKRI, JJ.]\n\nIndian Income-tax Act, 1922 (11 of 1922), s. 24(2)-Carry-forward of loss-Loss under one head of income whether can be set-off against income under other heads in succeeding years-Heads of income whether mutually exclusive.\n\nThe respondent bank had income from banking business and interest on securities. For the assessment year 1949-50 its loss from banking business was set-off against the income from interest on securities but for the succeeding three years the income-tax officer st:. t• off the said loss which had been carried forward, only against the income from banking business and disallowed it against the income under the head 'interest on securities'. The view of the Income Tax Officer was upheld by the Appellate Assistant Commissioner and on further appeal by the Appellate Tribunal. The Tribunal however referred to the High Court, at the instance of the assessee, the question whether the assessee was entitled to set-off business loss brought forward from the preceding assessment y-ear against the entire incomt: including interest on securities. The High Court remitted '.:he case to the Tribunal for a finding whether the .securities in question formed part of the trading assets held by the assessee. The Tribunal held that the receipt of interest from securities was as much the assessee's business as its other banking activities. On receipt of the supplementary statement 0f case the High Court answered the reference in favour of the assessee. The Revenue appealed to this Court.\n\nIt was urged for the Revenue that the income from business and securities fell under different heads, namely s. 10 and s. 8 of the Act respectively, that they were mutually exclusive and, therefore, the losses under the head ''business\" could not be carried forward from the preceding year to the succeeding year and set-off under s. 24(2) of the Act against the income from securities held by the assessee.\n\nHELD: (i) While sui>-s. (1) of s. 24 provides for setting-off of the loss in a particular year untler one of the heads in s. 6 against the profit under a different head in the same year, sub-s. (2) provides for the carrying forward of the loss of one year and setting off the same against the profit or gains of the assessee from the same business in subsequent years. This cl. (2) of s. 24 in contradistinction to cl. (1) thereof is concerned only with the business and not with its heads under s. 6 of the Act. This designed disti.nction brings out the intention of the legislature to give further relief to an assessee carrying on business and incurring loss in the business though the income therefrom falls under different heads under s. 6 of the Act. [622E; 623E-F)\n\n(ii) The scheme of the Act is that income-tax is one tax. Section 6 only classifies the income under different heads for the purpose of computation of the net income of the assessee. Though for the purpose of romputation of the inome, interest on. securities is separately classified, income by way. of interest on securities does not cease to be part of the income from business if the securities are part of the 619\n\n620 SUPllJl)(E COURT REPORTS (1965] 3 s.c.11.\n\ntrading assets. Whether a Particular income is part of the income A from a business falls to d<c; ded not on the basis of the provisions of s. 6 but on commercial principles. [622G-H]\n\n(iii) In the present case the Tribunal and the High Court found that the secur'.ties were the assesseo's trading assets and the jncome\n\ntherefrom was, therefore, the income of the business. If it was income of the business, s. 24(2) of the Act was immediately attracted. If the income from the securities was the income from its business, the loss B could, in terms of that section, be set-off against that income. [622H-\n\n623A] The Punjab Co-operative Bank Ltd. v. Commissioner of Income. tax, Punjab, (194-0) B I.T.R. 635 and C&inmissioner of Incometax Bombay City I v. Chugandas & Co. (1965) 55 I.T.R. 17, relied on.\n\nUnited Commercial Bank Vd. v. Commissioner of Income tax West Bengal, (1958) S.C.R 79, East India Housing and Land Deve- c lopment Trust Ltd. v. Commissioner of Income-tax, West Bengal\n\n(1961) 42 I.T.R. 49, and Commissioner of Income-tax. Madras v. Express Newspapers Ltd. (1964) 53 I.T.R. 250, distinguished.\n\nC!v1L APPELLATE JURISDICTION: Civil Appeals Nos. 155--157 of 1964.\n\nAppeals by special leave from the judgment and order dated August 8, 1961 of the Andhra Pradesh High Court in Case Refer red No. 25 of 1957.\n\nV. Gupte. Solicitor-General, N.\n\nKarkhanis and R. N. Sachthey, for the appellant (in all the appeals).\n\nG. S. Pathak. B. Datta and T. Satyanarayan, for the respondent (in all the appeals).\n\nThe Judgment of the Court was delivered by Sobba Rao, J. These appeals by special leave raise the ques tion of construct:on of s. 24(2) of the Indian Income-tax Act, 1922, hereinafter called the Act.\n\nThe material facts may briefly be stated. The Cocanada Bank Ltd. Kakinada. hereinafter called the assessee. is a private limited company carrying on banking business with its head office at Kakinada and a branch at Dayal Bagh. The assessee's sources of inctJme are banking business and interest from government secrities. For the assessment year 1949-50 its income was asse>sed as follows: Interest on securities Rs. 84,880 Other banking activities Rs. 64,400 Ooss) Net loss Rs. 55,912 The following tabular form shows at a glance. the factual positon in regard to the income of the assessee under different heads dunng the said three years :\n\nBusinesB year of assessment Interest on incomP..or securities luss as finally T-1tE1l decided b, v the A.A.C. 2 3 4 Rs.\n\nRs.\n\nRS. 5,191 886 6.077 2.174 1,177 3,3/il 1,885\n\n9,12I n.oos\n\nJ. 1950-51\n\n2. 1951-52\n\n3. 1952-53\n\nr. r. T. t>. COCAS-AD.\\ RA'.'IK (811hba Rao .• l.) 621\n\nFor the three succeeding years the department showed the income under the sa 'd two separate heads but allowed the said loss to be set off against the income under the head \"business\" and disallowed it against the income under the head \"interest on securit'e>''. The view of the Income-tax Officer was confirmed, on appeal, by the Appellate Assistant Commissioner and, on further appeal, by the Income-tax Appellate Tr'bunal. The following question was referred by the Tribunal to the High Court for its opinion:\n\n\"Whether on the facts and in the circumstances of the case, the assessee was entitled to set off the business loss of Rs. 55.912 brought forward from the preceding year against the entire income including interest on securities held by the assessee.\"\n\n' The High Court. hav; ng regard to the decision of this Court in United Commercial Bank Ltd., Calcutta v. Ccmmissioner of Inrnme-tax. West Banga!(') rem; tted the case to the Income-tax Tribunal, Hyderabad Bench. for making a fuller statement of case on the question whether these secur'ties in question formed part of the trading assets held by the assessee in the course of its business as a banker and whether its dealing with the securit'es from which it received interest was as much the assessee's business as receiving deposits from clients and withdrawals by them. 'The Income-tax Tribunal. on a further hearing, held that the receipt of interest from securities was as much the assessee's business as its other banking activities like receiving deposits from the clients and withdrawals hy them. On receipt of the supplementary statement of case from the Tribunal the High Court answered the reference in favour of the assessee. Hence the present appeals.\n\nLearned counsel for the Revenue argued that the income from business and securities fell under different heads, namely, s. 10 and s. 8 of the Act respect'vely. that they were mutually exclusive and, therefore, the losses under the head \"business\" could not be carried forward from the preceding year to the succeeding year and set off under s. 22(4) of the Act against the income from securities held by the assessee.\n\nLearned counsel for the assessee, on the other hand, contended that though for the purpose of computation of income, the income from securities and the income from business were calculated separately, in a case where the securities were part of the trading assets of the bus'ness, the income therefrom was part of the income of the business and, therefore. the losses incurred under the head \"business\" could be.set off during the succeeding years against the total income of the bt•siness, i.e., income from the business including the income from the securities.\n\nThe relevant section of the Act which deals with the matter of set off of losses in computing the aggregate income is s,. 24. The\n\n(') [1958] S.C.R. 79.\n\nSUP.RE)(~: COURT RE.PORTS fl965] S 1.0.a.\n\nrelevant part of it, before the Finance Act, 1955, read:\n\n\"(!) Where any assessee sustains a loss of profits or gains in any years under any of the heads mentioned in section 6, he shall be entitled to have the amount of the loss set off against his income, profits or gains under any other head in that year.\"\n\n(2) Where any assessee sustains a loss of profits or gains in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the. 31st day of March, 1940, in any bus; ness, profession or vocation, and the loss cannot be wholly set off under subsection (!), so mueh of the loss as is not so set off or the whole loss where the assessee had no other head of income shall be carried forward to the following year and set off against the profits and gains, if any, of the assessee from the same business, profession or vocation for that year; and if it cannot be wholly set off, the amount of loss not so set off shall be carried forward to the following year ...\n\nWhile sub-s. (I) of s. 24 provides for setting off of the loss in a particular year under one of the heads mentioned in s. 6 against the profit under a different head in the same year, sub-s. (2) provides for B the carrying forward of the los£ of one year and setting off of the same against the profit or gains of the assessee from the same business in the subsequent year or years. The cruc; al words, therefore, are \"profits and gains of the assessee from the same business\", i.e., the business in regard to which he sustained loss in the previous year. The question, therefore, is whether the securities formed part r of the trading assets of the business and the income therefrom was income from the business. The answer to this question depends upon the scope of s. 6 of the Act. Section 6 of the Act classified taxable income under the following several heads: (i) salaries; (ii) interest on securities; (iii) income from property; (iv) profits and gains of business, profession or vocation; (v) income from other G sources; and (vi) capital gains. The scheme of the Act is that income-tax is one tax. Section 6 only classifies the taxable income under different heads for the purpose of computation of the net income of the assessee. Though for the purpose of computation of the income, interest on securities is separately classified, income by way of interest from securities does not cease to be part of the income B from business if the securities are part of the trading assets. Whether a particular income is part of the income from a business falls to be decided not on the basis of the provisions of s. 6 but on commercial principles. To put it in other words; did the securities in the present case wh'ch yielded the income form part of the trading assets of the assessee? The Tribunal and the High Court found that they were the assessee's trading assets and the income therefrom\n\nC. I. T. II. COCillADA BANK (8-ubba RM, J.) 623\n\nwas, therefore, the income of the business. If it was the income of the business, s. 24(2) of the Act was immediately attracted. If the income from the securities was the income from its business, the loss could, in terms of that section, be set off against that income.\n\nA comparative study of sub-ss. (I) and (2) of s. 24 yields the same result. While in sub-s.(I) the expression \"head\" is used in sub-s. (2) the said expression is conspicuously omitted. This design ed distinction brings out the intention of the Legislature. The Act provides for the setting off of loss against profits in four ways. To illustrate, take the head \"profits and gains of business, profession or vocation\". An assessee may have two businesses. In ascertaining the income in each of the two businesses, he is entitled to deduct the losses incurred in respect of each of the said businesses. So •calculated, if he has loss in one business and profit in the other both falling under the same head, he can set off the loss in one against the profit in the other in arriving at the income under that head. Even so, he may still sustain loss under the same head. He can then set off the loss under the head \"business\" against profits under another head, say \"income from investments\", even if investments are not part of the trading assets of the business. Notwithstanding this process he may still incur loss in his business. Section 24(2) says that in that event he can carry forward the loss to the subsequent year or years and set off the said loss against the profit in the business. Be it noted that clause (2) of s. 24, in contradistinction to cl. (1) thereof, is concerned only with the business and not with its heads under s. 6 of the Act. Sect; on 24, therefore, is enacted to give further relief to an assessee carrying on a business and incurring loss in the business though the income therefrom falls under different heads under s. 6 of the Act.\n\nSome of the decisions cited at the Bar may conveniently be referred to at this stago. The Judicial Committee in The Punjab Cooperative Banlf Ltd. v. Commissioner of Income-tax, Punjab(') has clearly brought out the business connection between the securities of a bank and its business, thus:\n\n\"In the ordinary case of a bank, the business consists in -its essence of dealing with money and credit. Numerous depositors place their money with the bank often receiving a.small rate of interest on it. A number of borrowers receive loans of a large part of these deposited funds at somewhat higher rates of interest. But the banker has always to keep enough cash or easily realisable securities to meet any probable demand by the depositors. . ........... \" In the present. ca'e the Tribunal held, on the evidence, and that was accepted by the High Court, that the assessee was investing its amounts in easily realisable securities and, therefore, the said secu rities were part of the trading assets of the assessee's banking business. The decision of this Court in United Commercial Bank Ltd.,\n\n(') [19'0] 8 LT.B. 636, 6'5.\n\nSUPREME COURT REPORTS\n\n(1965] 3 8.C.R.\n\nCalcutta v. Commissioner of Income-tax, West Bengal(') does not lay down any different proposition. It held, after an exhaustive review of the authorities, that under the scheme of the Income-tax Act, 1922, the head of income, profits and gains enumerated in the different clauses of s. 6 were mutually exclusive, each spec!fic head covering items of income arising from a particular source. On that reasoning this Court held that even though the securities were part of the trading assets of the company doing business, the income therefrom had to be assessed under s. 8 of the Act. This decision does not say that the income from securities is not income from the business. Nor does the decis'on of this Court in East India Housing and Land Develcpment. Trust Ltd., v. Commissioner of Incometax, West Bengal(') support the contention of the Revenue. There, a company, which was incorporated with the objects of buying and developing landed properties and promoting and developing markets, purchased I 0 bighas of land in the town of Calcutta and set up a market therein. The question was whether the income realised from the tenants of the shops and stalls was liable to be taxed as \"business income\" under s. 10 of the Income-tax Act or as income from property under s. 9 thereof. This Court held that the said income fell under the specific head mentioned in s. 9 of the Act.\n\nThis case also does not lay down that the income from the shops is not the income in the business. In Commissioner of Income-tax, Madras v. Express Newspapers Ltd.,('), this Court held that both\n\ns. 26(2) and the proviso thereto dealt only with profits and gains of B a business, profession or vocation and they did not provide for the assessment of income under any other head, e.g., capital gains. The reason for that conclusion is stated thus:\n\n\"It (the deeming clause in s. 12B) only introduces a limited fiction, namely, that capital gains accrued will be deemed to be income of the previous year in which the sale was effected. The fiction does not make thorn the profits or gains of the business. It is well settled that a legal fiction is limited to the purpose for which it is created and should not be extended beyond its legitimate field . . '.: ......\n\nThe profits and ga'ns of business an.d capital gains are two distinct concepts in the Income-tax Act; the former arises from the activity which is called business and the latter accrues because capital assets are disposed of at a value higher than what they cost the assessee. They arc placed under different heads; they are derived from different sources; and the income is computed under different methods. The fact that the capital gains are connected with the capital assets of the business cannot make them th.e profit of the business. They are only deemed to be in come of the previous year and not the profits or gams arising from the business during that year.\"\n\n(') [1961.J 42 I.T.B. •9.\n\nI') fI958) S.C.R. 79.\n\n(') [1964] 53 I.T.R. 250, 260\n\nc. I. T. v. COCANA.DA. BANK (SubbJ Rao, J.) 625\n\nIt will be seen that the reason for the conclusion was that capital gains were not income from the business. Though some observations divorced from content may appear to be wide, the said decision was ma 'nly based upon the character of the capital gains and not upon their non-inclusion under the heading \"business\". The limited scope of the earlier decis; on was explained by this Court iii Commissioner of Income-tax, Bombay City Iv. Chugandas & Co.(').\n\nTherein this Court held that interest from securities formed part of the assessee's business income for the purpose of exemption under s. 25(3). Shah, J., speaking for the Court, observed:\n\n\"The heads described in s. 6 and further elaborated for the purpose of computation of income in sections 7 to IO and 12, 12A, 12AA and 128 are intended merely to indicate the classes of income: the heads do not exhaustively delimit sources from which income arises. This is made clear in the judgment of this Court in the United Commer cia/ Bank Ltd.'s case('). that business income is broken up under different heads only for the purposes of computation of the total income: by that break up the income does not cease to be income of the business, the different heads of income be'ng only the classification prescribed by the Indian Income-tax Act for computation of inc.ome.\" The same principle applies to the present case.\n\nWe, therefore, hold that under s. 24(2) of the Act the income from the securities whkh formed part of the assessee's trading assets was part of its income in the business and, therefore, the loss incurred in the business in the earlier year could be set off against that income also in the succeeding years.\n\nTn the re, Jlt. we hold that the High Court was right in answer- ; ng the question referred to it in the affirmative. The appeals are dismissed with costs. One hearing fee.\n\nAppeals dismissed.\n\n(1) [196, j] 55 1.T.R, 17, 24. (I) [HlJS]S.C.R. 79 L!P(Xj4SCI-14", "total_entities": 70, "entities": [{"text": "COMMISSIONER OF INCOMETAX, ANDHRA PRADESH", "label": "PETITIONER", "start_char": 0, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOMETAX, ANDHRA PRADESH", "offset_not_found": false}}, {"text": "THE COCANADA BANK LTD. KAKINADA", "label": "RESPONDENT", "start_char": 43, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "THE COCANADA BANK LTD. KAKINADA", "offset_not_found": false}}, {"text": "April 2; 1965", "label": "DATE", "start_char": 75, "end_char": 88, "source": "ner", "metadata": {"in_sentence": "KAKINADA April 2; 1965 [K. SUBllA RAO, J.C. SHAH ANDS."}}, {"text": "K. SUBllA RAO, J", "label": "JUDGE", "start_char": 90, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH ANDS. M. SIKRI, JJ.", "label": "JUDGE", "start_char": 107, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 137, "end_char": 164, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 179, "end_char": 187, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-tax Act, 1922", "statute": "Indian Income-tax Act, 1922"}}, {"text": "s. 10", "label": "PROVISION", "start_char": 1756, "end_char": 1761, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 1766, "end_char": 1770, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 1978, "end_char": 1986, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 2087, "end_char": 2092, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 2178, "end_char": 2182, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 2441, "end_char": 2446, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 2552, "end_char": 2556, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 2796, "end_char": 2800, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 2887, "end_char": 2896, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 3435, "end_char": 3439, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 3704, "end_char": 3712, "source": "regex", "metadata": {"statute": null}}, {"text": "V. Gupte", "label": "PETITIONER", "start_char": 4622, "end_char": 4630, "source": "ner", "metadata": {"in_sentence": "V. Gupte."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4669, "end_char": 4683, "source": "ner", "metadata": {"in_sentence": "Solicitor-General, N.\n\nKarkhanis and R. N. Sachthey, for the appellant (in all the appeals)."}}, {"text": "G. S. Pathak", "label": "LAWYER", "start_char": 4726, "end_char": 4738, "source": "ner", "metadata": {"in_sentence": "G. S. Pathak."}}, {"text": "B. Datta", "label": "LAWYER", "start_char": 4740, "end_char": 4748, "source": "ner", "metadata": {"in_sentence": "B. Datta and T. Satyanarayan, for the respondent (in all the appeals)."}}, {"text": "T. Satyanarayan", "label": "OTHER_PERSON", "start_char": 4753, "end_char": 4768, "source": "ner", "metadata": {"in_sentence": "B. Datta and T. Satyanarayan, for the respondent (in all the appeals)."}}, {"text": "Sobba Rao", "label": "JUDGE", "start_char": 4855, "end_char": 4864, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sobba Rao, J. These appeals by special leave raise the ques tion of construct:on of s. 24(2) of the Indian Income-tax Act, 1922, hereinafter called the Act."}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 4939, "end_char": 4947, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 4955, "end_char": 4982, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Cocanada Bank Ltd. Kakinada", "label": "ORG", "start_char": 5059, "end_char": 5086, "source": "ner", "metadata": {"in_sentence": "The Cocanada Bank Ltd. Kakinada."}}, {"text": "Dayal Bagh", "label": "GPE", "start_char": 5228, "end_char": 5238, "source": "ner", "metadata": {"in_sentence": "is a private limited company carrying on banking business with its head office at Kakinada and a branch at Dayal Bagh."}}, {"text": "Income-tax Tribunal, Hyderabad Bench", "label": "COURT", "start_char": 6876, "end_char": 6912, "source": "ner", "metadata": {"in_sentence": "rem; tted the case to the Income-tax Tribunal, Hyderabad Bench."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 7787, "end_char": 7792, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 7797, "end_char": 7801, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22(4)", "label": "PROVISION", "start_char": 8008, "end_char": 8016, "source": "regex", "metadata": {"statute": null}}, {"text": "S 1", "label": "PROVISION", "start_char": 8838, "end_char": 8841, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act, 1955", "label": "STATUTE", "start_char": 8880, "end_char": 8897, "source": "regex", "metadata": {}}, {"text": "section 6", "label": "PROVISION", "start_char": 9015, "end_char": 9024, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1955", "statute": "the Finance Act, 1955"}}, {"text": "31st day of March, 1940", "label": "DATE", "start_char": 9336, "end_char": 9359, "source": "ner", "metadata": {"in_sentence": "31st day of March, 1940, in any bus; ness, profession or vocation, and the loss cannot be wholly set off under subsection (!),"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 9887, "end_char": 9892, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1955", "statute": "the Finance Act, 1955"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 9987, "end_char": 9991, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 10636, "end_char": 10640, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 10653, "end_char": 10662, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 10976, "end_char": 10985, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 11483, "end_char": 11487, "source": "regex", "metadata": {"statute": null}}, {"text": "COCillADA BANK", "label": "ORG", "start_char": 11779, "end_char": 11793, "source": "ner", "metadata": {"in_sentence": "COCillADA BANK (8-ubba RM, J.) 623\n\nwas, therefore, the income of the business."}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 11897, "end_char": 11905, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 12133, "end_char": 12138, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 24(2)", "label": "PROVISION", "start_char": 13219, "end_char": 13232, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 13412, "end_char": 13417, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 13525, "end_char": 13529, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 13735, "end_char": 13739, "source": "regex", "metadata": {"statute": null}}, {"text": "United Commercial Bank Ltd.", "label": "ORG", "start_char": 14816, "end_char": 14843, "source": "ner", "metadata": {"in_sentence": "The decision of this Court in United Commercial Bank Ltd.,\n\n(') [19'0] 8 LT.B. 636, 6'5."}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 15101, "end_char": 15121, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 6", "label": "PROVISION", "start_char": 15200, "end_char": 15204, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 15483, "end_char": 15487, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Calcutta", "label": "GPE", "start_char": 15951, "end_char": 15959, "source": "ner", "metadata": {"in_sentence": "There, a company, which was incorporated with the objects of buying and developing landed properties and promoting and developing markets, purchased I 0 bighas of land in the town of Calcutta and set up a market therein."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 16125, "end_char": 16130, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 16138, "end_char": 16152, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 9", "label": "PROVISION", "start_char": 16186, "end_char": 16190, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 16279, "end_char": 16283, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26(2)", "label": "PROVISION", "start_char": 16493, "end_char": 16501, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 16772, "end_char": 16778, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 17248, "end_char": 17262, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "SubbJ Rao", "label": "JUDGE", "start_char": 17943, "end_char": 17952, "source": "ner", "metadata": {"in_sentence": "BANK (SubbJ Rao, J.) 625\n\nIt will be seen that the reason for the conclusion was that capital gains were not income from the business."}}, {"text": "Bombay", "label": "GPE", "start_char": 18384, "end_char": 18390, "source": "ner", "metadata": {"in_sentence": "The limited scope of the earlier decis; on was explained by this Court iii Commissioner of Income-tax, Bombay City Iv."}}, {"text": "s. 25(3)", "label": "PROVISION", "start_char": 18556, "end_char": 18564, "source": "regex", "metadata": {"statute": null}}, {"text": "Shah", "label": "JUDGE", "start_char": 18566, "end_char": 18570, "source": "ner", "metadata": {"in_sentence": "Shah, J., speaking for the Court, observed:\n\n\"The heads described in s. 6 and further elaborated for the purpose of computation of income in sections 7 to IO and 12, 12A, 12AA and 128 are intended merely to indicate the classes of income: the heads do not exhaustively delimit sources from which income arises."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 18635, "end_char": 18639, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 7", "label": "PROVISION", "start_char": 18707, "end_char": 18717, "source": "regex", "metadata": {"statute": null}}, {"text": "United Commer cia/ Bank Ltd.", "label": "ORG", "start_char": 18933, "end_char": 18961, "source": "ner", "metadata": {"in_sentence": "This is made clear in the judgment of this Court in the United Commer cia/ Bank Ltd.'s case(')."}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 19245, "end_char": 19259, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 24(2)", "label": "PROVISION", "start_char": 19369, "end_char": 19377, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_626_631_EN", "year": 1965, "text": "KEDARNATH ; JUTE MANUFACTURING CO.\n\nA v.\n\nCOMMERCIAL TAX OFFICER, CALCUTTA AND ORS.\n\nA pri/ 2, 1965 [K. SUBBA RAO, J. c. SHAH AND s. M, SIKRI, JJ.J B Bengal Finance (Sales Tax) Act, 1941 (Bengal Act 6 of 1941}-S. 5(2)(a) (ii) proviso. Effect of-Production of declaration forms required under proviso whether mandatory or directory-Exemption under substantive clause whether can be claimed on the basis of other et, idence.\n\nThe appellant a public limited company sought exemption under C s. 5(2) (a) (ii) of the Bengal Finance (Sales Tax) Act, 1941 in respect of certain sales. However, it could not produce before the commercial tax officer the declaration forms from the purchasing dealers required to be produced under the proviso to that sub-clause because the said• forms were lost. The appellant tried to\n\nset duplicate forms from the purchasing dealers but without success.\n\nHis application under s. 21A to summon the dealers with the relevant documents was rejected by the Commercial Tax Officer and the D higher authorities also refused to issue directions for the issue. of duplicate declaration forms. The Commercial Tax Officer thereafter passed an assessment order without allowing the said exemption.\n\nAgainst that order the appellant filed a writ petition under Art. 226 and thereafter a Letters Patent appeal but failed to get redress. It then appealed to this Court with certificate.\n\nIt was contended on behalf of the appellant that the exemption E granted under the subst2ntive sub-clause (ii) could be claimed by the production of other relevant evidence if the declaration forms could not be produced; the proviso to that sub-clause requiring the production of the said forms was only directory as was also proved by the use of the words \"on demand\" in s. 27 A.\n\nHELD: The exemption could be claimed only by the production F of the declaration forms as laid down in the proviso.\n\n(i) The effect of an exceptlpg proviso is to except from the main clause something which but for the proviso would be within it.\n\nCroies on Statute Law quoted: If the intention of the Legislature wa• to give exemption if the terms of the subs1'ahtive part of sub-clause (ii) above are complied with, the proviso becomes redundant and otiose. I~ . the oroviso is treated as merely directory it will lead to the pos!tlon that i! the G declaration form is furnished well and good; but if not furnished other evidence can be produced. That is to re; vrite the clause an~ to omit the proviso. That will defeat the express mtenbon of the legislature. f622H-630A]\n\nThere is an understandable reason for the stringency of the provisions. The object of s. 5(2)(a)(ii) of the Act nd the mies made the; e- B under is self-evident. While they are obv10usly mtended to give exemption to a dealer in respect of sales to registered dealrs. of .,1Jecified classes of goods, it seeks also to prevent fraud and collusion in an attempt to evade tax, [630G]\n\n-026\n\nKEDARNATH JUTE MFG. CO. V. C. T. 0, CALCUT1\"- (8ub/Ja fU10, .J.) 627\n\nA State of Orissa v. M.A. Tulloch & Co. Ltd, (1964) 15 S.T.C. 641, distinguished.\n\n(ii) The words \"on demand\" in r. 27A only fix the time when the declaration forms are to be produced; they do not mean that their production is not obligatory. [630A-B]\n\n(iii) Section 21A only empowers the Co1nmissioner or any person appointed by him to take evidence on oath etc. It can be invoked only in a case where the authbrity concerned is empowered t() take evidence in respect of a particular matter, but that does not enable him to ignore a statutory condition to claim exemption. [630C-D]\n\n(iv} Sub-rules (3) and (4) of s. 27A do not enable the selling dealer to either directly apply or to compel the purchasing dealers to apply for duplicate forms; nor do they enjoin on the appropriate authority to give the selling dealer a duplicate form to replace the lost one.\n\nThis may cause hardship but the remedy lies with the Legislature only. [630E, F]\n\nCrv1L APPELLATE JURISDICTION: Civil Appeal No. 94 of 1964.\n\nAppeal from the judgment and order dated August 17, 1961 of the Calcutta High Court in Appeal from Original Order No. 81 of 1959.\n\nA. V. Viswanatha Sastri and P.K. Ghosh, for the appellant.\n\nP. K. Chatterjee and P. K. Bose, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nE Subba Rao, J. This appeal on a certificate granted by the High Court of Calcutta raises the question of the interpretation of s. 5(2)(a) (ii) of the Bengal Finance (Sales Tax) Act, 194 l (Bengal Act VI of 194!), hereinafter called the Act.\n\nThe material facts are as follows: The appellant is a public F l; mited company registered as a dealer under the Act, having its registered place of business at Calcutta. In respect of the accounting year ending with 31st December l 954, in the return for the year the assessee had shown its gross turnover at Rs. 70.99,928-10-0 and claimed exemption under two heads, namely, (i) under s. 5(2)(a)(i) of the Act Rs. 1,33,730-6-6; and (ii) under s. 5(2)(a)(ii) thereof G Rs. 69 ,65 ,979-9-6. After deducting the said amounts from the gross turnover the assessee showed its taxable turnover at Rs. 218-9-0 and deposited the tax of Rs. 9-12-6 on the said amount in the treasury.\n\nThe Commercial Tax Officer by notice dated April 22, 1955, fixed August 4, 1955, for hearing the assessee in respect of its return.\n\nUnder s. 5(2)(a)(ii), the appellant in order to claim exemption S: thereunder had to furnish declaration forms duly filled in and signed by registered dealers to whom the \"goods were sold by it.\n\nAfter taking some adjournments of the enquiry it appears that in the second week of January 1957 the assessee found that its file containing 147 declaration forms received from its de.alers in respect of the goods received from it was missing. The assessee, it is said, made various attempts to get duplicate forms of declaration from the dealers, but, on account of circun; stances over which it had no\n\nSUPRI<~ME COURT REPORTS [1965] 3 s.c.R\n\ncontrol and because of the unhelpful and hostile attitude of the Commerc; al Tax Officer within whose jurisdiction the said dealers functioned, it was not able to furnish the duplicate forms for all the declarations that were lost. On August 8, 1957, the assessee applied to the Commercial Tax Officer under s. 21 A of the Act for summoning the dealers to produce the necessary documents in order to prove that they had issued the declaration forms to it, but the said officer did not issue the requisite summons to the parties concerned. The assessee then filed an application to the Commissioner of Commercial Taxes, West Bengal, for directions to issue duplicate declaration forms, but that application was rejected. The revision filed to the Revenue Board was also dismissed. On November 21, 1957, the Commercial Tax Officer made an order of assessment disallowing the assessee's claim for exemption in respect of the said sales made to the purchasing registered dealers amountjng to Rs. 22,46,006-0-6 and levied on it additional tax of Rs. 1.49.778-4-6. The assessee thereafter filed a petition under Art. 226 of the Constitution in the High Court of Calcutta for issuing an order directing the respondents, i.e., the Commercial Tax Officer and the Commissioner of Commercial Taxes. West Bengal, not to implement the said assessment order. The said application came up, at the first instance, before Sinha, J .. who dismissed the same.\n\nOn appeal, a Division Bench of the said High Court confirmed the order of Sinha, J. Hence the present appeal.\n\nAt the outset we must make it clear that in the view we are tak; ng on the construction of s. 5 of the Act we do not propose to go into the question whether the department was responsible for preventing the assessee from furnishing duplicate forms of the declarations alleged to have been lost or on the question whether the department went wrong in not summoning the dealers to produce the relevant documents to establish that the declaration forms alleged to have been lost were in fact issued by them.\n\nThe bnly question, therefore, that arises is whether under s. 5(2)(a)(ii) of the Act the furnishing of the declaration forms issued by the purchasing dealers was a condition for claiming the exemption thereunder.\n\nIn substance s. 5(2)(a)(ii) exempts from taxable turnover all sales to a registered dealer of goods of the class or classes specified in the certificate of registration of the dealer as being intended for the purposes mentioned therein. But the said exemption is made subject to a proviso. Under that proviso, in the case of such sales a declaration form duly filled up and signed by the registered dealer to whom the goods are sold and containing the prescribed particulars on a prescribed form obtainable from the prescribed authority has to be furnished in the prescribed manner by the dealer who sells the goods. Under r. 27A of the Bengal Sales Tax Rules, 1941, hereinafter called the Rules, a dealer who wishes to claim the said exemption shall on demand produce such a declaration in writing\n\nREDARNATl! JUTE MFG. co. v. c. T. o. CAWUTTA(Subba Rao, J.) 629\n\nsigned by the purchasing dealer. Sub-r. (2) thereof enjoins on a dealer not to accept and on the purchasing dealer not to give a declaration except in the form prescribed. The other rules make stringent provisions to prevent the misuse of the said forms.\n\nThe argument of Mr. A. V. Viswanatha Sastri, learned counsel for the appellant, may be briefly stated thus: The substantive part of s. 5(2)(a)(ii) of the Act provides for the e/(emption in respect of certain sales to a dealer if the sales are made to a registered dealer for the purposes mentioned thereunder. The proviso to the said subclause prescribes in effect that the declaration form in the manner prescribed is the best evidence to prove that the sales were for the said purposes. The proviso cannot be construed as laying down a condition for giving the exemption, but only as a directory provision to subserve the substantive provision in a reasonable way. If so construed, a dealer is not precluded in a case where the proviso cannot be strictly complied with from producing other relevant evidence to prove that the sales to the registered dealers were for the purposes mentioned in the said sub-clause. This conclusion is sought to be supported on the basis of the expression \"on demand\" in r. 27 A which, according to the learned counsel, indicates that the production of the prescribed declaration is not obligatory but only to be made if a demand is made by the authority concerned.\n\nThe learned Solicitor General, on the other hand, contends on behalf of the respondents that a dealer can claim exemption under the said sub-clause,, but if he seeks exemption he must comply strictly with the conditions under which the exemption can be granted. He argues that the clear terms of the clause, read w; th the proviso, impose a condition on a dealer for claiming exemption.\n\nSection 5(2)(a)(ii) of the Act in effect exempts a specified turnover of a dealer from sales tax. The provision prescribing the exemption shall, therefore, be strictly construed. The substantive clause gives the exemption and the proviso qualifies the substantive clause. In effect the proviso says that part of the turnover of the selling dealer covered by the terms of sub-cl. (ii) will be exempted provided a declaration in the form prescribed is furnished. To put it in other words, a dealer cannot get the exemption unless he furnishes the declaration in the prescribed form. It is well settled that \"the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it\": see \"Craies on Statute Law\", 6th Edn,, p. 217. If the intention of the Legislature was to give exemption if the terms of the substantive part of sub-cl.\n\n(ii) alone are complied with, the proviso becomes redundant and otiose. To accept the argument of the learned couTisel for the appellant is to ignore_ the proviso altogether, for if his contention be correct it will lead to tht position that if the declaration form is furnished, well and good; but, if not furnished. other evidence can be\n\n630 SUPREME COUR'l' REPORTS\n\n(1965] 3 S.C.B.\n\nproduced. That is to rewrite the clause and to omit the proviso. That will defeat the express intention of the Legislature. Nor does r. 27 A support the contrary construction. The expression \"on demaud\" only fixes the point of t; me when the declaration forms are to be produced; otherwise the rule would be inconsistent with the sectibn.\n\nSection 5(2)(a)(ii) says that the declaration form is to be furnished by tl\\e dealer and r. 27 A says that it shall be furnished on demand, that is to say it fixes the time when the form is to be furn'shed. This reconciles the provisions of r. 27 A with those of s. 5 (2)(a)(ii) of the Act, whereas the construct'.on suggested by the learned counsel introduces an incongruity which shall be avoided. Section 21A on which reliance is placed has no bearing on the question to be dec; ded. It only empowers the Commissioner or any person appointed to assist him under sub-s (!) of s. 3 to take ev; dence on oath etc. It can be invoked only in a case where the authority concerned is empowered to take evidence in respect of any particular matter; but that does not enable him to ignore a statutory condifon to claim exemption.\n\nSub-rules (3) and (4) of r. 27 A are not helpful lo the appellant. They prov'ide only safeguards against abuse of the declaration forms by the purchasing dealers; they do not enable the selling dealer to either directly apply or to compel the purchasing dealers to apply for dupl'cate forms; nor do they enjoin on the ar'.'ropriate authority to give the selling dealer a duplicate form to replace ik lost one. We realise that the section and the rules as they stand may conceivably cause unmerited hardship to an honct dealer. He n'ay have lost the declaration forms by a pure acc; dent. such as tire, theft etc., and yet he will be penalised for something fo:· which he is not responsible. But it is for the Legislature or for the rule-making authority to intervene to soften the rigour of the provisions and it is not for this Court lo do so where the provision's are clear and unambiguous.\n\nThere 's an understandable reason for the stringency of the provisions. The object of s. 5(2)(a)(ii) of the Act and the rules made thereunder is self-evident. While they are obviomly iDtended to give exempt'on to a dealer in respect of sales to registered dealers of specified classes of goods, it seeks also to prevent fraud and collusion in an attempt to evade tax. In the nature of things, in view of innumerable transactions that may be entered into between dealers, it will wellnigh be impossible for the taxing authorities to ascerta'n in each case whether a dealer has sold the specified goods to another for the purposes mentioned in the section. Therefore, presumably to achieve the twofold object, namely, prevention of fraud and facilitating administrative efficiency, the exemption given is made subject to a condition that the person claiming the exempt; on shall furnish a declaration form in the manner prescribed under the section. The liberal construction suggested will facilitate the commission of fraud and introduce admin'strative inconveniences, both of which the provisions of the said clause sek to avoid.\n\nKEDARNATH JUTE MFG. CO. V. C. T. O. CALCUTTA• (Subba Rao, J.) 631\n\nThe decision of this Court in The Stat~ of Orissa v. M.A.\n\nTulloch and Co. Ltd.(') does not help the appellant. That decisioa was concerned with s. 5(2)(a)(ii) of the Orissa Sales Tax Act, 1947.\n\nThat section was similar in terms to s. 5(2)(a)(ii) of the Act in question, but there was no proviso to that section in the Orissa Act similar to the one found in the present section. That makes all the difference, for it is the proviso that imposes the condition. But under r. 27(2) made under the Orissa Act \"a dealer shall prodnce a true declaration in writing by the purchasing dealer or by such responsible person as may be authorized in writing in this behalf by such dealer that the goods in question are specified in the purchasing dealer's certificate of registration as being required for res:lle by him or in the execution of any contract.\" This Court held that the said mandatory provision was inconsistent with s. 5(2)(a)- (i i) of the Orissa Sales Tax Act; and to avoid that conflict it reconciled both the provisions by holding that the rule was only direct iry and, therefore, it would be enough and if it was substantially compiled with. The said provisions may afford a guide for amending the relevant provisions of the Act and the rules made thereunder, but do not furnish any help for construing them.\n\nBefore parting with the case we must make it clear that we are not expressing any opinion on the bona {ides of the appellant or the appropriate sales tax authorities, for we have not scrutinized the evidence in that regard.\n\nE In the result, the appeal fails and is dismissed with costs.\n\nAppeal dismissed.\n\n-------· (') [IS64] 7 S.O.R. w:.", "total_entities": 52, "entities": [{"text": "KEDARNATH ; JUTE MANUFACTURING CO", "label": "PETITIONER", "start_char": 0, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "KEDARNATH ;JUTE MANUFACTURING CO", "offset_not_found": false}}, {"text": "COMMERCIAL TAX OFFICER, CALCUTTA AND ORS", "label": "RESPONDENT", "start_char": 42, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "COMMERCIAL TAX OFFICER, CALCUTTA AND ORS", "offset_not_found": false}}, {"text": "K. 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Viswanatha Sastri"}}, {"text": "s. 5(2)(a)(ii)", "label": "PROVISION", "start_char": 9530, "end_char": 9544, "source": "regex", "metadata": {"linked_statute_text": "the Bengal Sales Tax Rules, 1941", "statute": "the Bengal Sales Tax Rules, 1941"}}, {"text": "Section 5(2)(a)(ii)", "label": "PROVISION", "start_char": 10986, "end_char": 11005, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5(2)(a)(ii)", "label": "PROVISION", "start_char": 12720, "end_char": 12739, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 12983, "end_char": 12987, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 21A", "label": "PROVISION", "start_char": 13120, "end_char": 13131, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 13298, "end_char": 13302, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(2)(a)(ii)", "label": "PROVISION", "start_char": 14525, "end_char": 14539, "source": "regex", "metadata": {"statute": null}}, {"text": "KEDARNATH JUTE MFG. 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{"document_id": "1965_3_632_640_EN", "year": 1965, "text": "COMMISSIONER OF INCOME-TAX,\n\nWEST BENGAL, CALCUTTA v.\n\nCALCUTTA HOSPITAL AND NURSING\n\nHOME BENEFITS ASSOCIATION\n\nApril 2, 1965\n\n[K. SUBBA RAO, J. C. SHAH AND S. M. S!KRI, JJ.] Indian Income Tax Act 1922, s. 2(6C); Rule 6 to. the Schedule- Profits of mutual insurance business whether can be included in income-Reserve for income tax whether taxable .\n\nThe respondent Association was a mutual insurance concern carrying on miscellaneous insurance business. The objects of the Association included provision of help anywhere in the world in respect of expenses of accommodation and treatment in nursing homes for members and their dependents. The members were reqmred to pay a monthly premium. In the assessments for the assessment years 1949-50 to 1953-54 the Income-tax Officer taxed the reserves for payment of income-tax which had been debited to the profit and loss account. The Appellate Assistant Commissioner as well as the Appellate Tribunal upheld the Income-tax Officer's order. The questions arising in the proceedings were; (1) whether the balance of profits of a mutual insurance concern were included in the deHnition of the word 'income' and if so (2) whether reserves for income-tax could be taxed. At the instance of the respondent a reference was made to the High Court. That Court held that the surplus, miscalled profit, arising to the company from the miscellaneous insurance transactions of mutual character was not asse~'Sable under the Indian Income-tax Act and that in any event, the assessee was entitled to deduct the reserves. The Revenue appealed to this Court with certificate.\n\nHELD: (i) In s. 2(6CJ, the Legislature has evinced a clear intention to include the balance of profits under r. 6 within the meaning of the word 'income' in s. 3 of the Indian Income Tax Act, and accordingly such balance of profits is taxable. [639B-C] Ayrshire Employers Mutual Insurance Association Ltd. v. Commissioner of Inland Revenue, 27 T.C. 331, distinguished.\n\n\"Profits\" in r. 6 cannot be said to mean \"taxable profits\". Rule 6 refers to 'balance of profits' as disclosed in the accounts submitted to the Superintendent of Insurance. The Superintendent of Insurance is not concerned with taxable profits. What he is concerned with is the balance of profits under the Insurance Act. [638E-Fl\n\nNor can the term 'profits' in r. 6 be interpreted in the narrow sense of including only profits from investments and other activities of a mutual insurance company, Rule 6 deals with \"balance of profits\". as a composite thing. It is impossible to dissect this composite thing.\n\n[639A-B] Bombay Mutual Life Assurance Society Ltd. v. Commissioner of Income-tax, Bombay City, 20 I.T.-R 189, affirmed.\n\n(ii) The Insurance Act makes detailed provisions to en, ure the true valuation of assets and the determmcl10n of the true balance of profits\" of an insurance business and r. 6 should be construed in ' the light of this background. [639G-H]\n\n> 632\n\nA Pandy an Insurance Company Ltd. Madurai v. The Commissioner cj Income-tax, Madras, _[1965] 1 S.C.R. 367, referred to.\n\nExamining r. 6 in the light of this background, the intention of the ru1e seems to be that the, balance of profits as disclosed by the accounts submitted to the Superintendent of Insurance and accepted by him would be binciing on the Income Tax Officer, exoept that lhe B Income Tax Officer would be entitled to exclude expenditure other than expenditure permissible under the provisions of s. 10 of the Act.\n\nIn the pres-=nt case it v...-as common ground bet\\\\een the parties that the reserves which were added to the balance of profits were not expenditure, The High Court rightly held that the reserve for income tax could not be taed. [639H-640B] c\n\nCIVIL APPELLATE JURISDICTION: Civl Appeals Nos. 206 to 210 of 1964.\n\nAppeals from the judgment and orders dated September 26, 1961 of the Calcutta High Court in Income-tax Reference No. 24 of 1957.\n\nD Niren De, Additional Solicitor-General, Ganapathy Iyer and\n\nR. N. Sachthey, for the appellants.\n\nSampat Iyengar, B.R.L. Iyengar and D. N. Gupta, for the respondents.\n\nThe Judgment of the Court was delivued by Sikri, J. These appeals by certificate granted by the High Court of Calcutta under s. 66(A)(2) of the Indian Income Tax Act, 1922, are directed against t:1e judgment of the said High Court answering two questions referred to it against the Revenue. The questions are :\n\nl J) Whether the profit arising to the assessee company from miscellaneous insurance transactions of mutual character was assessable under the Indian Income Tax Act, and\n\n12) If the answer to question No. (!) is in the affirmative, whether on the facts and in the circumstances of the case the balance of the profits as disclosed in the assessee company's pcofit and loss account after deducting the various reserves should be the taxable profits within the meaning of Section 2(6C) read with Rule 6 of the Schedule of the Indian Income Tax Act.\n\nThe relevant facts and circumstances are as follows: The respondent. the Calcutta Hospital and Nursing Home Benefits Association Lim'ted. hereinafter referred to as the assessee, is a mutual insurance concern carrying on miscellaneous insurance business.\n\nThe principal objects for which the Associat; on was established were:\n\n(!) By means of insurance on the mutual principle to provide, or help towards provid; ng, anywhere in the world for the expense of accommodation and treatment in hospitals\n\nand nursing homes and of private nursing for members A and their dependants;\n\n(2) To organise insurance on the mutual principle under Rules and Regulations to be framed for the purpose with the object of providing such hospital, med'cal, surgical, nursing and allied services as before mentioned, of supporting JI and assisting hospitals, in Calcutta or elsewhere; of relieving members or their dependants, in whole or in part fro; n the payment of hospital and other charges while in receipt of such hosp'tal, medical, surg'cal, nursing and allied services; and of reimbursing and repaying to members or their dependants in whole or in part, all payments for O such hospital and other charges wl:ich they may have incurred or made wh:le in receipt of such hospital, medical, surgical, nursing and allied services.\n\nThe members were required to pay a monthly premium, but there was a waiting period of four months for all benefits other than D maternity, for which the waiting period was one year. Benefits and privileges became available as from the first day of the fifth calenrlar month of registration (in respect of Maternity the 13th month) and contin_ued to be available thereafter so long as the subscriptions were not m arrear.\n\nThese appeals are concerned with the assessment years 1949-50 E to 1953-54 and the relevant accounting years ended on December 31, 1948, December 31, 1949, December 31, 1950, December 31, 1951 and December 31, 1952, respectively.\n\nIn the statement of the case, the Appellate Tribunal describes the accounts maintained by the assessee thus :\n\n\"The assessee's published revenue accounts contained three classifications, viz. (i) miscellaneous insurance business revenue account, (ii) profit and loss account and (iii) profit and loss appropriation account. In the miscellaneous insurance business revenue accounts were mcluded subscriptions from the members, gross premia from the members and from such amounts were deducted general reserve and or contingency reserve. Reserve so made were transferred to the balance sheet as credit accounts. The claims paid or payable and the expenses of management were deducted from this revenue account. The balance of the miscellaneous insurance business revenue account was transferred to the profit and loss account to the credit of which was further added interest on investments and the debits included provision for taxation. interest on loan. contribution to provident fund and depreeiation. The balance of this account being the balance of profit and loss account was transferred to the profit and lo&s appropriation account. Therefrom, in one year, ended\n\n31st December, 1949, further deduction was made against. contingency reserve and the balance either loss or profit was carried forward.\"\n\nWe may now set out the facts regarding 1949-50 assessment.\n\nIt ; s not n11cessary to state the facts regarding other assessment years. The Income Tax Officer for the assessment year 1949-50 added the reserve for taxation, Rs. 1000 /-, to the net profit as per profit and loss acount, which showed a profit of Rs. J,653 /-, and after deducting depreciation, he assessed the total income at Rs. 2,651/ -.\n\nOn appeal, the Appellate Assistant Commissioner upheld the order of the Income Tax Officer. Following the decis'on of the Bombay High Court in Bombay Mutual Life\n\nA\"surance Society Ltd., v. Commissioner of Income Tax, Bombay City,(') he held that the income was assessable to income tax and that under Rule 6 of the Schedule to the Income Tax Act it was permiss'ble for the Income Tax Officer to add the reserves to the income disclosed in the profit and loss account. On further appeal, the Appellate Tribunal found no difficulty in holding that s. 2(6C) of the Income Tax Act, according to its true :nterpretation, included income or the profits of any insurance company of mutual assurance and the said profits shall be taken to be balance of the profits disclosed by the annual accounts. Regarding the reserve, the Tribunal held that the provision for reserve was not an expense to be deducted from the profits disclosed by the assessee company in order to arrive at the prorits within the meaning of r. 6, and the Income Tax Officer was entitled to add back the reserve.\n\nThe High Court held that the surplus, miscalled profit, arising to the assessee company from the miscellaneous insurance transactions of mutual character was not assessable under the Indian Income Tax Act and that, in any event, the assessee was entitled to deduct the reserve. The High Court distinguished Bombay Mutual Life Assurance Society Ltd. v.\n\nCommissioner of Incume Tax, Bomhay City(') on the ground that the Bombay decision was a life insurance decision and although it was a mutual life insurance sosiety, nevertheless different and special rules applied to life :nsurance and tht:. rules with which the Bombay decision was concerned were rules 2 and 3 which d; d not apply to mutual insurance other than life. The second point of distinction, according to the High Court, was the very distinctive clauses in the memorandum 0f objects and articles of association of the assessee.\n\nSection 2(6CJ at the relevant time defined 'income' to include \" ...... profits of any bus'ness of insurance carried on by a mutual insurance association computed in accordance with Rule 9 in the Schedule.\" We may mention that another s. 2(6CJ was substituted by Act XV of 1955, and the wording substituted by th; s Act in\n\n(') 20 I.T.R.189.\n\nSUPREME COURT REPGRTS (J 965) S 8.p, R\n\nsub-clause (vii) is \"the profits and gains of any business of insurance A carried on by a mutual insurance assoc'ation or by a co-operative society computed in accordance with rule 9 in the Schedule.\" But nothing turns on the change of the language as far as a mutual insurance association carrying on business of insurance is concerned.\n\nRule 9 of the Schedule reads thus B\n\n\"9. These rules apply to the assessment of the profits of any business of insurance carried on by a mutual insurance association ....... \"\n\nRule 6 with which we are concerned reads thus:\n\n\"The profits and ga; ns of any business of insurance other than life insurance shall be taken to be the balance of the profits disclosed by the annual accounts, copies of which are required under the Insurance Act, 1938, to be furnished to the Superintendent of Insurance after adjusting such balance so as to exclude from it any expend; ture other than expenditure which may under the provisions of Section 10 of this Act be allowed for in computing the profits and ga'ns of a business. Profits and losses on the realisation of investments and depreciation and appreciation of the value of investments shall be dealt with as provided in Rule 3 for the business of life insurance.\"\n\nThe Additional Solicitor General, appearing on behalf of the appellant, contends that the Bombay High Court was right in hold- . ing that \"s. 2(6C) ; mports into the definition of 'income', which is to be found in the charging section 3, these profits whch may not be profits in the ordinary sense of the term but which are made profits by reason of Rule 2 of the Schedule because Rule 2 really gives an artificial extens; on to the meaning of the word 'profits' when it says that 'profits and gains shall be taken to be'. Therefore a new class of artificial income is created by this rule and that art;- ficial income is included into the meaning of Sectin 3 by reason of this rule.\"\n\nMr. Sampat Ayyangar, learned counsel for the assessee, relying on the decision of the House of Lords in Arvshire Employers Mutual Insurance Association Ltd. v. Commissioner of Inland Revenue,(') contends that the Legislature has not made its intention clear because it has used the word 'profits' in s. 2(6C) under a misapprehension that the surplus of a mutual insurance company\n\n(') 27 T.C. 331.\n\nC. I. T. t'. CAL, HOSP, & '1URSINO HOME BENEFIT ASSN. (Sikfi, J.) 637\n\nA carrying on insurance business is profits. He says that in Arvshire Employers Mutual Insurance Association case(') the Legislature had proceeded on a similar misapprehension and the House of Lords held that s. 31 (I) of the Finance Act, 1933 (23 & 24 Geo.\n\nV. c. 19) did not succeed in making the profits of a mutual insult ranee company taxable. He urges that we should follow this precedent. He relies on the following passage from the speech of Lord Macmillan at p. 347:\n\n' \"The structure of Section 31 (I) is quite simple. It assumes that a surplus arising from the transactions of an in- 0 corporated company with its members is not taxable as profits or gains. To render such a surplus taxable it enacts that the surplus, although in fact arising from transactions, of the company with its members, shall be deemed to be something which it !s not, namely, a surplus arising from D transactions of the company with non-members. The hypothes's is that a surplus arising on the transaction of a mutual insurance company with non-members is taxable as profits or gains of the company. But unfprtunately for the Inland Revenue the hypothesis is wrong. It is not E membership or non-membership which determines immunity from or liability to tax, it is the nature of the transactions. If the transactions are of the nature of mutual insurance the resultant surplus is not taxable whether the transactions are with members or with non-members.\" F He further relies on the observations of Lord Macmillan that \"the Legislature has plainly missed fire. Its failure is perhaps less regrettable than it might have been, for the Sub-se.ction has not the meritorious object of preventing evasion of taxation, but the Jes~ laud' G able design of subjecting to tax as profit what the law has consistently and emphatically declared not to be profit.\" He says that similarly in this case the Legislature has plainly missed fire. In order to appreciate the scope of that decision, it is necessary to set out the relevant part of s. 31 of the Finance Act, 1933. Section 31(1) enact- B ed:\n\n\"31.-(1) In the application to any company or society of any provision or rule relating to profits or gains chargeable under Case I of Schedule D (which relates to trades) ...... any reference tG profits or gains shall be deemed to include a reference to a profit or surplus arising from trans-\n\n(1) 27 TC. 331.\n\nactions of the compa, ny or society with its members which would be included in profits or gains for the purposes of that provision or rule if those transactions were transactions w'th non-members, and the profit or surplus aforesaid shall be determined for the purposes of that provision or rule on the same principles as those on which profits or gains aris'ng from transactions with non-members would be so determined.\"\n\nThe Section adopted the device of a deeming provision. The profits arising from the transact'ons of a company or society with its members were deemed to be prots arising from transactions with non-members. Parliament assumed that the latter were taxable. As this hypothesis was wrong, Parl'ament failed in its objective. But the Indian Legislalure did not adopt any deeming device.\n\nIt defined 'income' to include profits of any bus'ness of insurance carried on by a mutual insurance assoc!ation. What are those profits is then explainea by reference to the Schedule. The effect of this in substance 's to incorporate r. 6 into the definition. If the legisla-· ture had defined income to include profits of insurance carried on by a mutual insurance association computed according to r. 6, very little would have remained arguable.\n\nIt 's, however, urged that in r. 6 also the word 'profits' means taxable profits. But r. 6 speaks of balance of profits as disclosed in the accounts submitted to the Superintendent of Insurance. Tre Superintendent of Insurance is not concerned with taxable profits.\n\nWhat he is concernd with, inter alia, is the balance of profits for the purpme of the Insurance AG!.\n\nIt is then urged that in the definition the word 'surplus' should have been used instead of profits. But the word 'surplus' has a technical significance in the Insurance Act, and it seems to us that it would have been inexpedient to use the word 'surplus'. At any rate. r. 6 would then have been drafted differently.\n\nIt is finally urged that this is a taxing statute and we should give a str'ct construction to the definition. The definition could still operate if we interpret it in a narrow sense as to include profits from investments and other activities of a mutual insurance company. It\n\nis said that this definition was inserted to make it clear that such profits would be taxable. We cannot acc; ede to this contention. It B was well established that such profits would be taxablf; apartfrom the new definition. We cannot understand why it was necessary\n\nr, J, T. V, CAL, HOS!'. & NURSING HOME BENEFIT ASSN. (Si/cri, J.) 639\n\nA to make it doubly clear. Moreover, r. 6 deals with balance of profits, which would include profits arising from the business of insurance of a mutual character. It dea'.ls with balance of profits as a compcsite thing. It is impossible to d; ssect this composite thing. If we were to accede to the assessee's contention, the definition would serve\n\nno purpose whatsoever.\n\nIt seems to us that the Legislature has evinced a clear intention to include the balance of profits as computed under r. 6 within the word 'income' in s. 3 of the Income Tax Act, and accordingly such balance of profits is taxable.\n\nWe are unable to agree with the High Court that the Bombay case is distinguishable in principle. It is true that the Bombay High Court was concerned with r. 2, but when we go to the schedule and find out what is the balance of profits or surplus that has been made taxable, it does not make any difference to the construction of s. 2(6C) whether it is r. 2 that is applied or r. 6. Therefore, disagreeing with the High Court, we answer the first question in the affirmative.\n\nThis takes us to the second question. The answer to this question depends on the true interpretation of r. 6. It seems to us that on its language the Income Tax Officer is bound to accept the balance of profits d; sclosed by the annual accounts, copies of which have been submitted to the Superintendent of Insurance. He can only adjust this balance so as to exclude from it any expenditure other than expenditure which may under the provisions of s. 10 be allowed for in comput; ng the profits and gains of a business. We are not concerned here with the latter part of r. 6 dealing with profits and losses on the realisation of investments, and depreciation and appreciation of the value of investments. This Court examined the provisions of the Insurance Act in connection with the Schedule in Pandvan Insurance Company Ltd., Madurai v. The Commissioner\n\nof Income-Tax, Madras(') and arrived at the conclusion that the Insurance Act \"makes detailed provisions to ensure the true valuation of assets and the determination of the true balance of profits of an insurance business\" and that r. 6 should be construed in the light of this background.\n\nExamining r. 6 in the light of this background, it seems to us . that the intention of the rule is that the balance of profits as disclosed by the accounts submitted to the Superintendent of Insurance and accepted by him would be binding on the Income Tax Officer,\n\n(') [1965] I S.C.R. 3C7.\n\nexcept that the Inco:ne Tax Officer would be entitled to exclude expenditure other than expenditure perm'ssible under the provisions of s. JO of the Act. It is common ground in this case that the ; eserves which were added to the balance of profits were not expenditure.\n\nAccordingly, agreeing with the H; gh Court, we answer the. second question in the affirmative.\n\nIn the result, the appeals are accepted in part. Parties will bear their own costs in this Court.\n\nAppeals partly allowed.", "total_entities": 58, "entities": [{"text": "COMMISSIONER OF INCOME-TAX,\n\nWEST BENGAL, CALCUTTA", "label": "PETITIONER", "start_char": 0, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, WEST BENGAL, CALCUTTA", "offset_not_found": false}}, {"text": "CALCUTTA HOSPITAL AND NURSING\n\nHOME BENEFITS ASSOCIATION", "label": "RESPONDENT", "start_char": 55, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "Calcutta Hospital and Nursing Home Benefits Association Lim'ted", "offset_not_found": false}}, {"text": "April 2, 1965", "label": "DATE", "start_char": 113, "end_char": 126, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF INCOME-TAX,\n\nWEST BENGAL, CALCUTTA v.\n\nCALCUTTA HOSPITAL AND NURSING\n\nHOME BENEFITS ASSOCIATION\n\nApril 2, 1965\n\n[K. SUBBA RAO, J. C. SHAH AND S. M. S!KRI, JJ.]"}}, {"text": "K. 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These appeals by certificate granted by the High Court of Calcutta under s. 66(A)(2) of the Indian Income Tax Act, 1922, are directed against t:1e judgment of the said High Court answering two questions referred to it against the Revenue.", "canonical_name": "Sikri"}}, {"text": "s. 66(A)(2)", "label": "PROVISION", "start_char": 4224, "end_char": 4235, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 4243, "end_char": 4270, "source": "regex", "metadata": {}}, {"text": "Section 2(6C)", "label": "PROVISION", "start_char": 4880, "end_char": 4893, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income Tax Act, 1922", "statute": "the Indian Income Tax Act, 1922"}}, {"text": "Calcutta Hospital and Nursing Home Benefits Association Lim'ted", "label": "RESPONDENT", "start_char": 5031, "end_char": 5094, "source": "ner", "metadata": {"in_sentence": "the Calcutta Hospital and Nursing Home Benefits Association Lim'ted.", "canonical_name": "Calcutta Hospital and Nursing Home Benefits Association Lim'ted"}}, {"text": "Calcutta", "label": "GPE", "start_char": 5801, "end_char": 5809, "source": "ner", "metadata": {"in_sentence": "By means of insurance on the mutual principle to provide, or help towards provid; ng, anywhere in the world for the expense of accommodation and treatment in hospitals\n\nand nursing homes and of private nursing for members A and their dependants;\n\n(2) To organise insurance on the mutual principle under Rules and Regulations to be framed for the purpose with the object of providing such hospital, med'cal, surgical, nursing and allied services as before mentioned, of supporting JI and assisting hospitals, in Calcutta or elsewhere; of relieving members or their dependants, in whole or in part fro; n the payment of hospital and other charges while in receipt of such hosp'tal, medical, surg'cal, nursing and allied services; and of reimbursing and repaying to members or their dependants in whole or in part, all payments for O such hospital and other charges wl:ich they may have incurred or made wh:le in receipt of such hospital, medical, surgical, nursing and allied services."}}, {"text": "December 31, 1948", "label": "DATE", "start_char": 6815, "end_char": 6832, "source": "ner", "metadata": {"in_sentence": "These appeals are concerned with the assessment years 1949-50 E to 1953-54 and the relevant accounting years ended on December 31, 1948, December 31, 1949, December 31, 1950, December 31, 1951 and December 31, 1952, respectively."}}, {"text": "December 31, 1949", "label": "DATE", "start_char": 6834, "end_char": 6851, "source": "ner", "metadata": {"in_sentence": "These appeals are concerned with the assessment years 1949-50 E to 1953-54 and the relevant accounting years ended on December 31, 1948, December 31, 1949, December 31, 1950, December 31, 1951 and December 31, 1952, respectively."}}, {"text": "December 31, 1950", "label": "DATE", "start_char": 6853, "end_char": 6870, "source": "ner", "metadata": {"in_sentence": "These appeals are concerned with the assessment years 1949-50 E to 1953-54 and the relevant accounting years ended on December 31, 1948, December 31, 1949, December 31, 1950, December 31, 1951 and December 31, 1952, respectively."}}, {"text": "December 31, 1951", "label": "DATE", "start_char": 6872, "end_char": 6889, "source": "ner", "metadata": {"in_sentence": "These appeals are concerned with the assessment years 1949-50 E to 1953-54 and the relevant accounting years ended on December 31, 1948, December 31, 1949, December 31, 1950, December 31, 1951 and December 31, 1952, respectively."}}, {"text": "December 31, 1952", "label": "DATE", "start_char": 6894, "end_char": 6911, "source": "ner", "metadata": {"in_sentence": "These appeals are concerned with the assessment years 1949-50 E to 1953-54 and the relevant accounting years ended on December 31, 1948, December 31, 1949, December 31, 1950, December 31, 1951 and December 31, 1952, respectively."}}, {"text": "31st December, 1949", "label": "DATE", "start_char": 8098, "end_char": 8117, "source": "ner", "metadata": {"in_sentence": "Therefrom, in one year, ended\n\n31st December, 1949, further deduction was made against."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 8762, "end_char": 8779, "source": "ner", "metadata": {"in_sentence": "Following the decis'on of the Bombay High Court in Bombay Mutual Life\n\nA\"surance Society Ltd., v. Commissioner of Income Tax, Bombay City,(') he held that the income was assessable to income tax and that under Rule 6 of the Schedule to the Income Tax Act it was permiss'ble for the Income Tax Officer to add the reserves to the income disclosed in the profit and loss account."}}, {"text": "s. 2(6C)", "label": "PROVISION", "start_char": 9187, "end_char": 9195, "source": "regex", "metadata": {"statute": null}}, {"text": "S 8", "label": "PROVISION", "start_char": 10983, "end_char": 10986, "source": "regex", "metadata": {"statute": null}}, {"text": "Insurance Act, 1938", "label": "STATUTE", "start_char": 11757, "end_char": 11776, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 10", "label": "PROVISION", "start_char": 11957, "end_char": 11967, "source": "regex", "metadata": {"linked_statute_text": "the Insurance Act, 1938", "statute": "the Insurance Act, 1938"}}, {"text": "s. 2(6C)", "label": "PROVISION", "start_char": 12379, "end_char": 12387, "source": "regex", "metadata": {"linked_statute_text": "the Insurance Act, 1938", "statute": "the Insurance Act, 1938"}}, {"text": "section 3", "label": "PROVISION", "start_char": 12467, "end_char": 12476, "source": "regex", "metadata": {"linked_statute_text": "the Insurance Act, 1938", "statute": "the Insurance Act, 1938"}}, {"text": "Sampat Ayyangar", "label": "OTHER_PERSON", "start_char": 12930, "end_char": 12945, "source": "ner", "metadata": {"in_sentence": "Mr. Sampat Ayyangar, learned counsel for the assessee, relying on the decision of the House of Lords in Arvshire Employers Mutual Insurance Association Ltd. v. Commissioner of Inland Revenue,(') contends that the Legislature has not made its intention clear because it has used the word 'profits' in s. 2(6C) under a misapprehension that the surplus of a mutual insurance company\n\n(') 27 T.C. 331."}}, {"text": "s. 2(6C)", "label": "PROVISION", "start_char": 13226, "end_char": 13234, "source": "regex", "metadata": {"statute": null}}, {"text": "Sikfi", "label": "JUDGE", "start_char": 13380, "end_char": 13385, "source": "ner", "metadata": {"in_sentence": "Sikfi, J.) 637\n\nA carrying on insurance business is profits.", "canonical_name": "Sikri"}}, {"text": "Arvshire Employers Mutual Insurance Association", "label": "ORG", "start_char": 13457, "end_char": 13504, "source": "ner", "metadata": {"in_sentence": "He says that in Arvshire Employers Mutual Insurance Association case(') the Legislature had proceeded on a similar misapprehension and the House of Lords held that s. 31 (I) of the Finance Act, 1933 (23 & 24 Geo."}}, {"text": "s. 31", "label": "PROVISION", "start_char": 13605, "end_char": 13610, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act, 1933", "label": "STATUTE", "start_char": 13622, "end_char": 13639, "source": "regex", "metadata": {}}, {"text": "Macmillan", "label": "OTHER_PERSON", "start_char": 13851, "end_char": 13860, "source": "ner", "metadata": {"in_sentence": "He relies on the following passage from the speech of Lord Macmillan at p. 347:\n\n' \"The structure of Section 31 (I) is quite simple."}}, {"text": "Section 31", "label": "PROVISION", "start_char": 13893, "end_char": 13903, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1933", "statute": "the Finance Act, 1933"}}, {"text": "s. 31", "label": "PROVISION", "start_char": 15413, "end_char": 15418, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act, 1933", "label": "STATUTE", "start_char": 15426, "end_char": 15443, "source": "regex", "metadata": {}}, {"text": "Section 31(1)", "label": "PROVISION", "start_char": 15445, "end_char": 15458, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1933", "statute": "the Finance Act, 1933"}}, {"text": "Schedule D", "label": "PROVISION", "start_char": 15608, "end_char": 15618, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1933", "statute": "the Finance Act, 1933"}}, {"text": "Parliament", "label": "ORG", "start_char": 16416, "end_char": 16426, "source": "ner", "metadata": {"in_sentence": "Parliament assumed that the latter were taxable."}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 17572, "end_char": 17585, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 18872, "end_char": 18876, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay", "label": "GPE", "start_char": 19005, "end_char": 19011, "source": "ner", "metadata": {"in_sentence": "We are unable to agree with the High Court that the Bombay case is distinguishable in principle."}}, {"text": "s. 2(6C)", "label": "PROVISION", "start_char": 19282, "end_char": 19290, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 19877, "end_char": 19882, "source": "regex", "metadata": {"statute": null}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 20176, "end_char": 20189, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 20350, "end_char": 20363, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1965_3_63_70_EN", "year": 1965, "text": "GURBINDER SINGH AND ANOTHER v.\n\nLAL SINGH AND AN01BER February 12, 1965 (K. SOBBA R.Ao, R.AGHUBAR DAYAL, J. R. MUDHOLKAR,\n\nR. S. BACHAWAT AND V. RAMASWAMI, JJ.]\n\nIndian. Limitation Act (9 of 1908), s. 2(4) and Arts. 142 and 144- Scope of.\n\nOne Mst. Raj Kaur was holding certain lands on different tenures under the Raja of Faridkot. She had two daughters. She adopted the son of one of them and put him in possession of all C the lands: He transferred a part of the lands to the second respondent who was son of the other daughter of Raj Kaur. After Raj Kaur's deaJth the Raja filed suits for possession of the land, and in execution of the decree he obtained in those suits, took possession of the entire land, in October, 1938. He then transferred the land, but the transferee was dispossessed by the appellants in June\n\n1950, in execution of a decree they obtained, in a suit for pre- D emption filed by them against the transferee. The second respondent's mother had died in 1938 and her sons the first and seco11d respondents filed a suit for possession of the entire land in February 1950, as heirs of Raj Kaur, but it was decreed only to the extent of their ha!£ share, and the decree was affirmed by the High Court.\n\nIn the appeal to this Court it was contended that the suit was E governed either by Art. 142 or Art. 144 of the Indian Limitation Act,\n\n1908, and on either basis, was barred by time.\n\nHELD: (i) Article 142 would not be attracted to the suit.\n\nIn order thalt the article may be attracted the plaintiff must initially have been in possession of the property and should have been dispossessed by the defendantor some one through whom the defendant claims or alternatively, the plaintiff should have discontinued possession. It was no one's cae it.hat the first respondent was ever in possession of the property. As regards the second respondent's possession at 011e time of a part of the property, it was by reason of a transfer by the adopted son. The claim in the instant case, however, was by succession, under a different title altogether, and so it must be held that the plaintiffs-respondents, as heirs of Raj K;!ur, were never in possession of the land. [65H] G.\n\n(ii) Article 144 was applicable to the suit, but the suit was\n\nnot barred by time.\n\nAdverse possession against the respondents started in October. 1938, when the Raja took possession of the land. To that adverse possession could be added that of his transferee and that of the appeliants who had pre-empted the lands under the decree obtained by them against the transferee. Bult, the sum total of the adverse possession of all those persons at the date of the respondent's suit would be less than 12 years. The adverse possession of the adopted son could not be tacked on to the adverse possession of the Raja and those who claim through him, because, in a suit to which Art 144 is attracted,_ the burden is on the defendant to establish that he was in adverse possession for 12 years before the date of suit, and for computation of that period, he can avail himself of the adverse possession of any person or persons through whom he claims but not the adverse possession of independent trespassers. Th7 starting point of limitation in Art. 144 is the date when A the possession of the defendant becomes adverse to the plaintiff The\n\nist of te definition .of the word \"defendant\" in s. 2(4) of th~ Act\n\nis the ex1ste.nce of a JUra_l relationship between the different persons referred to m. the defimt10n, and there can be no jural relationship between two mdependent trespassers. [66 F-H; 68C; 70B].\n\nRamayya v. Kotamma, (1921) I.L.R. 45 Mad. 370, explained.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 431of1963.\n\nB Appeal from the judgment and decree dated May 21 1958 of the Punjab High Court in Civil Regular Second Appeal No. 263-P of 1952.\n\nTarachand Brijmohanlal, for the appellants.\n\nB. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for the resa pondents.\n\nThe Judgment of the Court was delivered by Mudholkar, 1. The only question for consideration in this appeal by certificate from the High Court of Punjab is whether the suit for possession instituted by the respondents Lal Singh and D Pratap Singh is within time. According to the appellants the suit is governed not by art. 1_41 of the Limitation Act, 1908 (9 of 1908) as held by the High Court but either by art. 142 or by art. 144 and is on that basis barred by time. While it is conceded on behalf of the respondents that the suit is not governed by art. 141 it is contended that it is governed by art. 144 and not by art. 142 and is l!l within time. In order to appreciate the contentions it is necessary to set out the relevant facts which are no longer in dispute.\n\nMst. Raj Kaur was in possession of 851 kanals 18 marlas of land situate in village Dhaipai in the former State of Faridkot. Out of this.land 481 kanals .7 marlas was in her possession as occupancy F tenant, the landlord being the Raja of Faridkot while the remaining land was held by Smt. Raj Kaur as Adna Malik, the Aala malik again being the said Raja of Faridkot. In Samvat 1953 (A.D.\n\n~896) Smt. Raj Kaur who had two daughters Prem Kaur and Mahan Kaur, adopted the farmer's son Bakshi Singh and put him in possession of the whole of the land. Bakshi Singh transferred G part of the land to Pratap Singh, second son of Mahan Kaur, who is respondent No. 2 in the appeal. Mahan Kaur had one more son Lal Singh and he is respondent No. 1 in this appeal.\n\nIn the year 1915 the Raja of Faridkot filed a suit against Bakshi Singh and Raj Kaur in the court of Sub-Judge, Faridkot for a declaration that the adoption of Bakshi Singh was invalid. B This suit was decreed on February 9, 1916. Raj Kaur died on .Aug, ust 14, 193'0. On February 19, 1934 the Raja filed two suits against Bakshi Singh and Pratap Singh for possession of the aforementioned lands, one pertaining to the land of which Raj Kaur was occupancy tenant and the other for that of the land of which she was Adna malik. These suits were decreed on March 12, 1938 and in execution of the decrees obtained in these suits the Raja\n\nGUBBINDER \"· LAL SINGH (Mudholkar, J.) 65\n\nA took possession of the entire land in October 1938. On April 7, 1948 he sold the entire land along with some other land to one Kehar Singh for Rs. 84,357-5-0. Thereupon Gurbinder Singh and l:lalbinder Singh, who are the appellants before us, filed a suit for pre-emption of the land against Kehar Singh and obtained a decree m their favour. In execution of that decree they got possession of B the land on June 22, 1950.\n\nOn October 20, 1948 Mst. Prem Kaur instituted a suit for possession of the entire land on the ground that she was the legal heir of Raj Kaur against Kehar Singh and the Raja of Faridkot.\n\nLater she impleaded the appellants as defendants to that suit and c discharged the Raja of Faridkot. On February 17, 1950, Lal Singh, respondent No. 1, filed a suit for possession of the entire land against the Raja of Faridkot and Kehar Singh. To that suit he joined Prem Kaur and Pratap Singh as defendants. Later, however, Pratap Singh was transposed as a plaintiff. Both the suits were consolidated and were tried together. The suit of Prem Kaur was dis- D m 'ssed by the trial court but that of the respondents was decreed to the extent of half share in the property. Prem Kaur and the appellants preferred appeals before the District Court but that court dismissed both the appeals. A second appeal was taken by the appellants as well as by Prem Kaur to the High Court and cross-objections were preferred by the respondents. The High E Court dismissed these appeals as well as the cross-objections.\n\nIn the absence of any appeal by Prem Kaur against the decision of the H'gh Court confirming the dismissal of her suit we have only to consider the claim of the respondents to half the property left by Raj Kaur. Their claim was resisted by the appellants on several grounds in the courts below. Before us, however, only F one grqund is pressed and that is, the suit is barred by limitation.\n\nAs already stated, according to the appellants, the suit is governed either by art. 142 or by art. 144 of the Limitation Act and not by art. 141. Mr. Iyengar for the.respondents, does not rely upon art. 141 at all. He also contends that art. 142 has no applicat'on and that the suit is governed by art. 144 only. Mr.\n\nTarachand G Brijmohanlal for the appellants also relied on art. 144 in the alter\n\nnative.\n\nIn order that art. 142 is attracted the plaintiff must initially have been in possession of the property and should have been dispossessed by the defendant or someone through whom the defen B dants claim or alternatively the plaintiff should have discontinued possession. It is no one's case that Lal Singh ever was in possession of the property. It is true that Pratap Singh was in possession of part of the property-which particular part we do not know-by reason of a transfer thereof in his favour .by Bakshi Singh. In the present suit both Lal Singh and Pratap Singh assert their claim to property by success'on in accordance wit11 the rules contained in the dastur ul amal whereas the possession of Pratap Singh for some\n\ntime was under a different title altogether. So far as the present A suit is concerned it must, therefore, be said that the plaintiffsrespondents were never in possession as he'rs of Raj Kaur and consequently art. 142 would not be attracted to their suit.\n\nIt is in these circumstances that we have to consider whether under art. 144 the suit is barred by time. The starting point of limitation set out in col. 3 of art. 144 is as follows: B \"When the possession of the defendant becomes adverse to the plaintiff\".\n\nTo recapitulate the events, Raj Kaur died on August 14, 1930 whereup;:m under dastur-u/-ama/ her daughters Prem Kaur and Mahan Kaur became entitled to the possession of the land. Accord- C ing to the appellants the daughters succeeding their mother took an absolute estate. Assuming th3t that is so, what would be the\n\nposit'on? As already stated. Bakshi Singh and Pratap Si11gh were in possession. of the entire land belonging to Raj Kaur.. Ignoring for the time being their relationship with Raj Kaur, what can be said is that they were adversely 'n possession to the true owners, D that is, Prem Kaur and Mahan Kaur, daughters of Raj Kaur as from August 14, 1930. Before, however, they could perfect their title against Prem Kaur and Mahan Kaur the Raja instituted a suit for possession, obtained a decree thereunder and actually entered into possession to the entire land in October, 1938. Though E the Raja obtained possession under a decree of the coµrt he was in the eye of law nothing but a trespasser in so far as the heirs of Raj Kaur, her daughters Prem Kaur and .Mahan Kaur were concerned. Mahan Kaur had in fact died.on July 13, 1938, i.e. before the Raja obtained possession. Therefore, it is more accurate to say ihat the possession of the Raja became adverse to Prem Kaur and to the respondents Lal Singh and Pratap Singh as from October, F\n\n1938. Kehar Singh who was a transferee from the Raja stood in the Raja's position and got the benefit of the Raja's adverse possession. Similarly the appellants who had pre-empted these lands tinder the decree obtained against Kehar Singh got advantage not only of the Raja's adverse possession but also of Kehar Singh's.\n\nThe sum total of the adverse possession of these three persons at 11 the date of the respondent's suit would, however, be less than 12 years and so the respondents' suit could not be said to be barred by art. 144 if the starting point of limitation is taken to be some day in October, 1938.\n\nMr. Tarachand Brijmohanlal, however, advanced an interest- B ing argument to the effect that if persons entitled to immediate possession of land are somehow kept . out of possession-may be by different trespa.ssers-for a period of 12 years or over, their suit will be barred by time. He points out that as from the death of Raj Kaur her daughters, through one of whom the respondents claim, were kept out of possession by trespassers and that from the date of Raj Kaur's death right up to the date of the respondentS'\n\nGURBINDER v. LAL SINGH (Mudholkai, J.) 67\n\nA suit, that is, for a peri?d o~ nearly 20 years trespassers were in possession of Mahan Kaur's, and after her death, the respondents' share in the land, their suit must therefore be regarded as barred by time. In other words the learned counsel wants to tack on the adverse possession of Bakshi Singh and Pratap Singh to the adverse possession of the Raja and those who claim through him. In sup- B port of the contention reliance is placed by learned counsel on the decision in Ramayya v. Kotamma('). In order to , appreciate what was decided in that case a brief resume of the facts of that case is necessary. Malla battudu, the last male holder of the properties to which the suit related, died in the year 1889 leaving two daughters Ramamma and Govindamma. The former died in 1914. The latter C surrendered her estate to her two sons. The plaintiff who was a transferee from the sons of Govindamma instituted a suit for rer covery . ., f possession of Mallabattudu's property against Punnayya, the son of Ramamma to whom Mallabattudu had made an oral gift of his properties two years before his death. Punnayya was minor at the date of gift and his elder brother Subbarayudu D was managing the property on his behalf. Punnayya, however, died in 1894 while still a minor and thereafter his brothers Subbarayudu and two others were in possession of the property. It would seem that the other brothers died and Subbarayudu was the last surviving member of Punnayya's family.\n\nUpon Subbarayudu's death the properties were sold by his l!l daughters to the third defendant. The plaintiffs-appellants' suit failed on the ground of limitation. It was argued on his behalf in the second appeal before the High Court that as the gift to Punnayya was oral it was invalid, that consequently F'unnayya was in possession as trespasser, .hat on Punnayya's death his heir would be his mother, that as Subbarayudu continued in possession Subbarayudu's I' possession was also that of a trespasser, .that as neither Subbarayudu nor Punnayya completed possession for 12 years they could not tack on one to the other and that the plaintiff claiming through the nearest reversioner is not barred. The contention for the respondents was that there was no break in possession so as to revest the properties in the original owners, that Punnayya and Subbarayudu cannot G be treated as successive trespassers and that in any event the real owner having been out of possession for over 12 years the suit was barred by limitation. The High Court following the decision of Mookerjee J. in Mohendra Nath v. Shamsunnessa(') held that time begins to run against the last full owner if he himself was dispossessed and the operation of the law of limitation would not B 1be arrested by the fact that on his death he was succeeded by his widow, daughter or mother, as the cause of action cannot be prolonged by the mere transfer of title. It may be mentioned that as Mallabattudu had given up possess; on to Punnayya under an inyalid gift art. 142 of the Limitation Act was clearly attracted. The\n\n(') (\\921) I.L.R. 45 Marl. 370.\n\n(') ('941) 21C.L.J.157, 164.\n\nsons of Govindamma from whom the appellant had purchased the A suit properties claimed through Mallabattudu and since time began to run against him from 1887 when he discontinued possession it did not cease to run by the mere fact of his death. In a suit to which that article applies the plaintiff has to prove his possession within 12 years of h; s suit. Therefore, so long as the total period of the plaintiff's exclusion from posses&ion is, at the date of the plaintiff's B suit, for a period of 12 years or over, the fact that this exclusion was by different trespassers will not help the plaintiff provided there was a continuity in the period of exclusion.· That decisi9n is not applicable to the facts of the case before us. This is a su; t to which art. 144 is attracted and the burden is on the defendant to establish that he was in adverse possession for 12 years before the date C of suit and for computation of this period he can avail of the adverse possession of any person or persons through whom he claims --b.ut not the adverse possession of independent trespassers.\n\nIn so far as the adverse possession of Bakshi Singh and Pratap Singh is concerned it began upon the death of Raj Kaur and not during her life time. That being so, art. 142 cannot possibly be D attracted whereas the Madras decision turns upon a case to which art. 142 applied. No doubt, there, on behalf of the plaintiff-appellant it was argued on the authority of Agency Co. v. Short(') that in cases of successive trespassers limitation ceases to run against the lawful owner of the land after an intruder has relinquished his possession; that on the death of Punnayya it must be taken that E there was an interruption in the possession and that there \\Vas an interval between PUnnayya's death and Subbarayudu's raking possession in his own r; ght however minute the interval may _be and that except in the case of succession or devolution all other cases would fall within the principle enunciated in Agency Co's F , case('). The learned Judges did not accept the contention but relying upon the decision in Willis v. Earl Howe(') and a passage in Dart on Vendors and Purchasers, Vol. I 7th ed. p. 474 held that the suit was barred by time. It may be pointed out that on Punnayya 's death h's mother would be the h.eir and that it was established in that case that she was living with his brother S'ubbarayudu and his G other brothers: Subbarayudu would,. therefore, be a presumptive reversioner on the death of hismother and there was evidence to show that she was a consenting party to Subbaryudu's enjoying the properties after Punnayya's death. It is under these circum• starices that the H; gh Court found it difficult to hold .that there was a fresh trespass by Subbarayudu after the death of Punnayya.\n\nH On the other hand, according to them, there was a continuity of p:JSsession because the person w, ho continued to hold possession\n\nW'.lS the presumptive heir of the deceased. From the facts of the case it will be clear that what was tacked on was not the possession of independent passers at all. In the case before us what\n\n(1) [1888] 13 A.C. 793.\n\n(1) [1893] 2 Ch. 546.\n\nGURBINDER v. LAL SINGH (Mwlhalkar, J.) 69\n\nis be'ng sought to be tacked on to the possession of the Raja and those who claim through him_ is the possession of Bakshi Singh and Pratap Singh. The Raja in his suit against Bakshi Singh challenged the right of Bakshi Singh and Pratap Singh to possession on the ground that they were trespassers. As it has turned out, the posession of the Raja, though obtained under the decree of a civil court, was in itself a trespass on the rights of the persons who were in law entitled to possession of property. Thus this is a case of one trespasser trespassing against another trespasser. There is no connection between the two and, therefore, in Jaw their possession cannot be tacked on to one another. As pointed out by Varadachariar J., in Rajagopala Naidu v. Ramasubramania Ayyar(').\n\n\"Further the doctrine of independent trespassers will come in only when the scond man trespasses upon the possession of the first or the first man abandons possession.\"\n\nWhere it applies the pr'nciple laid down in Agency Co's(') casewould apply and preclude the tacking of possession of successive trespassers. The following observations of Lord Macnaghten in that case are pertinent and run thus:\n\n\"They are of opinion that if a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession. the rightful owner, on the abandonment, is in the same position in all respects as he was before the in trusion took place. There is no one against whom he can bring an action. He cannot make any entry upon himself.\n\nThere is no positive enactment, nor is there any principle of law, which requires him to do any act, to issue any notice or to perform any ceremony in order to rehabilitate himself. No new departure is necessary. The possession of the intruder, ineffectual for the purpose or transferring t'tle, ceases upon its abandonment to be effectual for any purpose. It does not leave behind it any cloud on the title of the rightful owner, or any secret process at work for the possible benefit in time to come of some casual interloper or lucky vagrant. There is not, in their Lo.rd~ ships' opin'on, any analogy between the case supposed and the case of successive disabilities mentioned in the statute. There the statute 'continues to run' because there is a person in possession in whose favour it is running.\"\n\nThis view has not been departed from in any case. At any rate none was brought to our notice where it has not been followed. Apart from that what we are concerned with is the language used by the legislature in the third column of art. 144. The starting point of limitation there stated is the date when the possession of\n\n(') A.I.R. [1935] Mad. 449.\n\nthe defendant becomes adverse to the plaintiff. The word \"de- A fendant\" is defined in s. 2(4) of the Limitation Act thus:\n\n\" 'defendant' includes any person from or through whom a defendant derives his lial:dity to be used\".\n\nNo doubt. this is an inclusive definit'on but the gist of it is the existence of a jural relationship between different persons. There B can be no jural recationship between two independent trespassers.\n\nTherefore, where a defendant in possession of property is sued by a person who has title to it but is out of possession what he has to show in defence is that he or anyone through whom he claims has been in pssession for more than the statutory period. An independent trespasser not being such a person the defendant is not c entitled to tack on the previous possession of that person to his own possession. In our opinion. therefore, the respondents' suit is within time and has been rightly decreed by the courts below. We dismiss this appeal with costs.\n\nAppeal dismissed.", "total_entities": 104, "entities": [{"text": "GURBINDER SINGH AND ANOTHER v", "label": "RESPONDENT", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "GURBINDER SINGH AND ANOTHER v", "offset_not_found": false}}, {"text": "February 12, 1965", "label": "DATE", "start_char": 54, "end_char": 71, "source": "ner", "metadata": {"in_sentence": "GURBINDER SINGH AND ANOTHER v.\n\nLAL SINGH AND AN01BER February 12, 1965 (K. SOBBA R.Ao, R.AGHUBAR DAYAL, J. R. MUDHOLKAR,\n\nR. S. BACHAWAT AND V. RAMASWAMI, JJ.]"}}, {"text": "R.AGHUBAR DAYAL, J.", "label": "JUDGE", "start_char": 88, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 108, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "R. MUDHOLKAR", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 123, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 142, "end_char": 159, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 170, "end_char": 184, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2(4)", "label": "PROVISION", "start_char": 198, "end_char": 205, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 142 and 144", "label": "PROVISION", "start_char": 210, "end_char": 227, "source": "regex", "metadata": {"statute": null}}, {"text": "Raj Kaur", "label": "PETITIONER", "start_char": 249, "end_char": 257, "source": "ner", "metadata": {"in_sentence": "Raj Kaur was holding certain lands on different tenures under the Raja of Faridkot.", "canonical_name": "Raj K;!ur"}}, {"text": "Art. 142", "label": "PROVISION", "start_char": 1309, "end_char": 1317, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 144", "label": "PROVISION", "start_char": 1321, "end_char": 1329, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Limitation Act", "label": "STATUTE", "start_char": 1337, "end_char": 1358, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Article 142", "label": "PROVISION", "start_char": 1419, "end_char": 1430, "source": "regex", "metadata": {"linked_statute_text": "the Indian Limitation Act,\n\n1908", "statute": "the Indian Limitation Act,\n\n1908"}}, {"text": "Raj K;!ur", "label": "PETITIONER", "start_char": 2134, "end_char": 2143, "source": "ner", "metadata": {"in_sentence": "The claim in the instant case, however, was by succession, under a different title altogether, and so it must be held that the plaintiffs-respondents, as heirs of Raj K;!ur, were never in possession of the land. [", "canonical_name": "Raj K;!ur"}}, {"text": "Article 144", "label": "PROVISION", "start_char": 2198, "end_char": 2209, "source": "regex", "metadata": {"linked_statute_text": "the Indian Limitation Act,\n\n1908", "statute": "the Indian Limitation Act,\n\n1908"}}, {"text": "Raja", "label": "OTHER_PERSON", "start_char": 2799, "end_char": 2803, "source": "ner", "metadata": {"in_sentence": "The adverse possession of the adopted son could not be tacked on to the adverse possession of the Raja and those who claim through him, because, in a suit to which Art 144 is attracted,_ the burden is on the defendant to establish that he was in adverse possession for 12 years before the date of suit, and for computation of that period, he can avail himself of the adverse possession of any person or persons through whom he claims but not the adverse possession of independent trespassers."}}, {"text": "Art 144", "label": "PROVISION", "start_char": 2865, "end_char": 2872, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 144", "label": "PROVISION", "start_char": 3230, "end_char": 3238, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(4)", "label": "PROVISION", "start_char": 3377, "end_char": 3384, "source": "regex", "metadata": {"statute": null}}, {"text": "Tarachand Brijmohanlal", "label": "LAWYER", "start_char": 3846, "end_char": 3868, "source": "ner", "metadata": {"in_sentence": "Tarachand Brijmohanlal, for the appellants.", "canonical_name": "Tarachand G Brijmohanlal"}}, {"text": "B. R. L. Iyengar", "label": "LAWYER", "start_char": 3891, "end_char": 3907, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for the resa pondents."}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 3909, "end_char": 3920, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for the resa pondents."}}, {"text": "K. L. Mehta", "label": "LAWYER", "start_char": 3925, "end_char": 3936, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for the resa pondents."}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 4005, "end_char": 4014, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Mudholkar, 1.", "canonical_name": "R. MUDHOLKAR"}}, {"text": "High Court of Punjab", "label": "COURT", "start_char": 4094, "end_char": 4114, "source": "ner", "metadata": {"in_sentence": "The only question for consideration in this appeal by certificate from the High Court of Punjab is whether the suit for possession instituted by the respondents Lal Singh and D Pratap Singh is within time."}}, {"text": "Lal Singh", "label": "RESPONDENT", "start_char": 4180, "end_char": 4189, "source": "ner", "metadata": {"in_sentence": "The only question for consideration in this appeal by certificate from the High Court of Punjab is whether the suit for possession instituted by the respondents Lal Singh and D Pratap Singh is within time.", "canonical_name": "Lal Singh"}}, {"text": "D Pratap Singh", "label": "RESPONDENT", "start_char": 4194, "end_char": 4208, "source": "ner", "metadata": {"in_sentence": "The only question for consideration in this appeal by certificate from the High Court of Punjab is whether the suit for possession instituted by the respondents Lal Singh and D Pratap Singh is within time."}}, {"text": "art. 1", "label": "PROVISION", "start_char": 4281, "end_char": 4287, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act, 1908", "label": "STATUTE", "start_char": 4298, "end_char": 4318, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "art. 142", "label": "PROVISION", "start_char": 4371, "end_char": 4379, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1908", "statute": "the Limitation Act, 1908"}}, {"text": "art. 144", "label": "PROVISION", "start_char": 4386, "end_char": 4394, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1908", "statute": "the Limitation Act, 1908"}}, {"text": "art. 141", "label": "PROVISION", "start_char": 4515, "end_char": 4523, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1908", "statute": "the Limitation Act, 1908"}}, {"text": "art. 144", "label": "PROVISION", "start_char": 4563, "end_char": 4571, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1908", "statute": "the Limitation Act, 1908"}}, {"text": "art. 142", "label": "PROVISION", "start_char": 4583, "end_char": 4591, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1908", "statute": "the Limitation Act, 1908"}}, {"text": "Raj Kaur", "label": "PETITIONER", "start_char": 4739, "end_char": 4747, "source": "ner", "metadata": {"in_sentence": "Raj Kaur was in possession of 851 kanals 18 marlas of land situate in village Dhaipai in the former State of Faridkot.", "canonical_name": "Raj K;!ur"}}, {"text": "Dhaipai", "label": "GPE", "start_char": 4817, "end_char": 4824, "source": "ner", "metadata": {"in_sentence": "Raj Kaur was in possession of 851 kanals 18 marlas of land situate in village Dhaipai in the former State of Faridkot."}}, {"text": "Faridkot", "label": "GPE", "start_char": 4848, "end_char": 4856, "source": "ner", "metadata": {"in_sentence": "Raj Kaur was in possession of 851 kanals 18 marlas of land situate in village Dhaipai in the former State of Faridkot."}}, {"text": "Prem Kaur", "label": "PETITIONER", "start_char": 5165, "end_char": 5174, "source": "ner", "metadata": {"in_sentence": "Raj Kaur who had two daughters Prem Kaur and Mahan Kaur, adopted the farmer's son Bakshi Singh and put him in possession of the whole of the land.", "canonical_name": "Prem Kaur"}}, {"text": "Mahan Kaur", "label": "RESPONDENT", "start_char": 5179, "end_char": 5189, "source": "ner", "metadata": {"in_sentence": "Raj Kaur who had two daughters Prem Kaur and Mahan Kaur, adopted the farmer's son Bakshi Singh and put him in possession of the whole of the land.", "canonical_name": ".Mahan Kaur"}}, {"text": "Bakshi Singh", "label": "OTHER_PERSON", "start_char": 5216, "end_char": 5228, "source": "ner", "metadata": {"in_sentence": "Raj Kaur who had two daughters Prem Kaur and Mahan Kaur, adopted the farmer's son Bakshi Singh and put him in possession of the whole of the land."}}, {"text": "Pratap Singh", "label": "RESPONDENT", "start_char": 5328, "end_char": 5340, "source": "ner", "metadata": {"in_sentence": "Bakshi Singh transferred G part of the land to Pratap Singh, second son of Mahan Kaur, who is respondent No.", "canonical_name": "Pratap Si11gh"}}, {"text": "Mahan Kaur", "label": "RESPONDENT", "start_char": 5407, "end_char": 5417, "source": "ner", "metadata": {"in_sentence": "Mahan Kaur had one more son Lal Singh and he is respondent No.", "canonical_name": ".Mahan Kaur"}}, {"text": "Lal Singh", "label": "RESPONDENT", "start_char": 5435, "end_char": 5444, "source": "ner", "metadata": {"in_sentence": "Mahan Kaur had one more son Lal Singh and he is respondent No.", "canonical_name": "Lal Singh"}}, {"text": "Sub-Judge, Faridkot", "label": "COURT", "start_char": 5590, "end_char": 5609, "source": "ner", "metadata": {"in_sentence": "In the year 1915 the Raja of Faridkot filed a suit against Bakshi Singh and Raj Kaur in the court of Sub-Judge, Faridkot for a declaration that the adoption of Bakshi Singh was invalid."}}, {"text": "February 9, 1916", "label": "DATE", "start_char": 5702, "end_char": 5718, "source": "ner", "metadata": {"in_sentence": "B This suit was decreed on February 9, 1916."}}, {"text": "February 19, 1934", "label": "DATE", "start_char": 5761, "end_char": 5778, "source": "ner", "metadata": {"in_sentence": "On February 19, 1934 the Raja filed two suits against Bakshi Singh and Pratap Singh for possession of the aforementioned lands, one pertaining to the land of which Raj Kaur was occupancy tenant and the other for that of the land of which she was Adna malik."}}, {"text": "March 12, 1938", "label": "DATE", "start_char": 6044, "end_char": 6058, "source": "ner", "metadata": {"in_sentence": "These suits were decreed on March 12, 1938 and in execution of the decrees obtained in these suits the Raja\n\nGUBBINDER \"· LAL SINGH (Mudholkar, J.) 65\n\nA took possession of the entire land in October 1938."}}, {"text": "Raja\n\nGUBBINDER", "label": "JUDGE", "start_char": 6119, "end_char": 6134, "source": "ner", "metadata": {"in_sentence": "These suits were decreed on March 12, 1938 and in execution of the decrees obtained in these suits the Raja\n\nGUBBINDER \"· LAL SINGH (Mudholkar, J.) 65\n\nA took possession of the entire land in October 1938."}}, {"text": "LAL SINGH", "label": "JUDGE", "start_char": 6138, "end_char": 6147, "source": "ner", "metadata": {"in_sentence": "These suits were decreed on March 12, 1938 and in execution of the decrees obtained in these suits the Raja\n\nGUBBINDER \"· LAL SINGH (Mudholkar, J.) 65\n\nA took possession of the entire land in October 1938.", "canonical_name": "Lal Singh"}}, {"text": "April 7, 1948", "label": "DATE", "start_char": 6225, "end_char": 6238, "source": "ner", "metadata": {"in_sentence": "On April 7, 1948 he sold the entire land along with some other land to one Kehar Singh for Rs."}}, {"text": "Kehar Singh", "label": "RESPONDENT", "start_char": 6297, "end_char": 6308, "source": "ner", "metadata": {"in_sentence": "On April 7, 1948 he sold the entire land along with some other land to one Kehar Singh for Rs.", "canonical_name": "Kehar Singh"}}, {"text": "Gurbinder Singh", "label": "PETITIONER", "start_char": 6339, "end_char": 6354, "source": "ner", "metadata": {"in_sentence": "Thereupon Gurbinder Singh and l:lalbinder Singh, who are the appellants before us, filed a suit for pre-emption of the land against Kehar Singh and obtained a decree m their favour.", "canonical_name": "GURBINDER SINGH AND ANOTHER v"}}, {"text": "lalbinder Singh", "label": "PETITIONER", "start_char": 6361, "end_char": 6376, "source": "ner", "metadata": {"in_sentence": "Thereupon Gurbinder Singh and l:lalbinder Singh, who are the appellants before us, filed a suit for pre-emption of the land against Kehar Singh and obtained a decree m their favour."}}, {"text": "June 22, 1950", "label": "DATE", "start_char": 6576, "end_char": 6589, "source": "ner", "metadata": {"in_sentence": "In execution of that decree they got possession of B the land on June 22, 1950."}}, {"text": "October 20, 1948", "label": "DATE", "start_char": 6595, "end_char": 6611, "source": "ner", "metadata": {"in_sentence": "On October 20, 1948 Mst."}}, {"text": "Prem Kaur", "label": "PETITIONER", "start_char": 6617, "end_char": 6626, "source": "ner", "metadata": {"in_sentence": "Prem Kaur instituted a suit for possession of the entire land on the ground that she was the legal heir of Raj Kaur against Kehar Singh and the Raja of Faridkot.", "canonical_name": "Prem Kaur"}}, {"text": "February 17, 1950", "label": "DATE", "start_char": 6884, "end_char": 6901, "source": "ner", "metadata": {"in_sentence": "On February 17, 1950, Lal Singh, respondent No."}}, {"text": "Kehar Singh", "label": "RESPONDENT", "start_char": 7012, "end_char": 7023, "source": "ner", "metadata": {"in_sentence": "1, filed a suit for possession of the entire land against the Raja of Faridkot and Kehar Singh.", "canonical_name": "Kehar Singh"}}, {"text": "art. 142", "label": "PROVISION", "start_char": 8156, "end_char": 8164, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 144", "label": "PROVISION", "start_char": 8171, "end_char": 8179, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 8187, "end_char": 8201, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "art. 141", "label": "PROVISION", "start_char": 8213, "end_char": 8221, "source": "regex", "metadata": {"statute": null}}, {"text": "Iyengar", "label": "OTHER_PERSON", "start_char": 8227, "end_char": 8234, "source": "ner", "metadata": {"in_sentence": "Mr. Iyengar for the.respondents, does not rely upon art."}}, {"text": "art. 141", "label": "PROVISION", "start_char": 8275, "end_char": 8283, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 142", "label": "PROVISION", "start_char": 8314, "end_char": 8322, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 144", "label": "PROVISION", "start_char": 8375, "end_char": 8383, "source": "regex", "metadata": {"statute": null}}, {"text": "Tarachand G Brijmohanlal", "label": "LAWYER", "start_char": 8395, "end_char": 8419, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nTarachand G Brijmohanlal for the appellants also relied on art.", "canonical_name": "Tarachand G Brijmohanlal"}}, {"text": "art. 144", "label": "PROVISION", "start_char": 8454, "end_char": 8462, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 142", "label": "PROVISION", "start_char": 8500, "end_char": 8508, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 142", "label": "PROVISION", "start_char": 9422, "end_char": 9430, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 144", "label": "PROVISION", "start_char": 9538, "end_char": 9546, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 144", "label": "PROVISION", "start_char": 9629, "end_char": 9637, "source": "regex", "metadata": {"statute": null}}, {"text": "August 14, 1930", "label": "DATE", "start_char": 9774, "end_char": 9789, "source": "ner", "metadata": {"in_sentence": "To recapitulate the events, Raj Kaur died on August 14, 1930 whereup;:m under dastur-u/-ama/ her daughters Prem Kaur and Mahan Kaur became entitled to the possession of the land."}}, {"text": "Pratap Si11gh", "label": "RESPONDENT", "start_char": 10094, "end_char": 10107, "source": "ner", "metadata": {"in_sentence": "Bakshi Singh and Pratap Si11gh were in possession.", "canonical_name": "Pratap Si11gh"}}, {"text": ".Mahan Kaur", "label": "RESPONDENT", "start_char": 10803, "end_char": 10814, "source": "ner", "metadata": {"in_sentence": "Though E the Raja obtained possession under a decree of the coµrt he was in the eye of law nothing but a trespasser in so far as the heirs of Raj Kaur, her daughters Prem Kaur and .Mahan Kaur were concerned.", "canonical_name": ".Mahan Kaur"}}, {"text": "July 13, 1938", "label": "DATE", "start_char": 10862, "end_char": 10875, "source": "ner", "metadata": {"in_sentence": "Mahan Kaur had in fact died.on July 13, 1938, i.e. before the Raja obtained possession."}}, {"text": "Pratap Singh", "label": "RESPONDENT", "start_char": 11054, "end_char": 11066, "source": "ner", "metadata": {"in_sentence": "Therefore, it is more accurate to say ihat the possession of the Raja became adverse to Prem Kaur and to the respondents Lal Singh and Pratap Singh as from October, F\n\n1938.", "canonical_name": "Pratap Si11gh"}}, {"text": "art. 144", "label": "PROVISION", "start_char": 11614, "end_char": 11622, "source": "regex", "metadata": {"statute": null}}, {"text": "Tarachand Brijmohanlal", "label": "LAWYER", "start_char": 11706, "end_char": 11728, "source": "ner", "metadata": {"in_sentence": "Mr. Tarachand Brijmohanlal, however, advanced an interest- B ing argument to the effect that if persons entitled to immediate possession of land are somehow kept .", "canonical_name": "Tarachand G Brijmohanlal"}}, {"text": "Malla battudu", "label": "PETITIONER", "start_char": 12877, "end_char": 12890, "source": "ner", "metadata": {"in_sentence": "Malla battudu, the last male holder of the properties to which the suit related, died in the year 1889 leaving two daughters Ramamma and Govindamma.", "canonical_name": "Malla battudu"}}, {"text": "Ramamma", "label": "OTHER_PERSON", "start_char": 13002, "end_char": 13009, "source": "ner", "metadata": {"in_sentence": "Malla battudu, the last male holder of the properties to which the suit related, died in the year 1889 leaving two daughters Ramamma and Govindamma."}}, {"text": "Govindamma", "label": "OTHER_PERSON", "start_char": 13014, "end_char": 13024, "source": "ner", "metadata": {"in_sentence": "Malla battudu, the last male holder of the properties to which the suit related, died in the year 1889 leaving two daughters Ramamma and Govindamma."}}, {"text": "Mallabattudu", "label": "PETITIONER", "start_char": 13221, "end_char": 13233, "source": "ner", "metadata": {"in_sentence": "f possession of Mallabattudu's property against Punnayya, the son of Ramamma to whom Mallabattudu had made an oral gift of his properties two years before his death.", "canonical_name": "Malla battudu"}}, {"text": "Punnayya", "label": "OTHER_PERSON", "start_char": 13253, "end_char": 13261, "source": "ner", "metadata": {"in_sentence": "f possession of Mallabattudu's property against Punnayya, the son of Ramamma to whom Mallabattudu had made an oral gift of his properties two years before his death.", "canonical_name": "Punnayya"}}, {"text": "Subbarayudu D", "label": "OTHER_PERSON", "start_char": 13432, "end_char": 13445, "source": "ner", "metadata": {"in_sentence": "Punnayya was minor at the date of gift and his elder brother Subbarayudu D was managing the property on his behalf.", "canonical_name": "Subbarayudu D"}}, {"text": "Subbarayudu", "label": "OTHER_PERSON", "start_char": 13567, "end_char": 13578, "source": "ner", "metadata": {"in_sentence": "Punnayya, however, died in 1894 while still a minor and thereafter his brothers Subbarayudu and two others were in possession of the property.", "canonical_name": "Subbarayudu D"}}, {"text": "F'unnayya", "label": "OTHER_PERSON", "start_char": 14048, "end_char": 14057, "source": "ner", "metadata": {"in_sentence": "It was argued on his behalf in the second appeal before the High Court that as the gift to Punnayya was oral it was invalid, that consequently F'unnayya was in possession as trespasser, .hat on Punnayya's death his heir would be his mother, that as Subbarayudu continued in possession Subbarayudu's I' possession was also that of a trespasser, .that as neither Subbarayudu nor Punnayya completed possession for 12 years they could not tack on one to the other and that the plaintiff claiming through the nearest reversioner is not barred."}}, {"text": "Mookerjee", "label": "JUDGE", "start_char": 14813, "end_char": 14822, "source": "ner", "metadata": {"in_sentence": "The High Court following the decision of Mookerjee J. in Mohendra Nath v. Shamsunnessa(') held that time begins to run against the last full owner if he himself was dispossessed and the operation of the law of limitation would not B 1be arrested by the fact that on his death he was succeeded by his widow, daughter or mother, as the cause of action cannot be prolonged by the mere transfer of title."}}, {"text": "Punnayya", "label": "GPE", "start_char": 15242, "end_char": 15250, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that as Mallabattudu had given up possess; on to Punnayya under an inyalid gift art."}}, {"text": "art. 142", "label": "PROVISION", "start_char": 15273, "end_char": 15281, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 15289, "end_char": 15303, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "art. 144", "label": "PROVISION", "start_char": 16153, "end_char": 16161, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 142", "label": "PROVISION", "start_char": 16644, "end_char": 16652, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras", "label": "GPE", "start_char": 16696, "end_char": 16702, "source": "ner", "metadata": {"in_sentence": "142 cannot possibly be D attracted whereas the Madras decision turns upon a case to which art."}}, {"text": "art. 142", "label": "PROVISION", "start_char": 16739, "end_char": 16747, "source": "regex", "metadata": {"statute": null}}, {"text": "PUnnayya", "label": "OTHER_PERSON", "start_char": 17159, "end_char": 17167, "source": "ner", "metadata": {"in_sentence": "No doubt, there, on behalf of the plaintiff-appellant it was argued on the authority of Agency Co. v. Short(') that in cases of successive trespassers limitation ceases to run against the lawful owner of the land after an intruder has relinquished his possession; that on the death of Punnayya it must be taken that E there was an interruption in the possession and that there \\Vas an interval between PUnnayya's death and Subbarayudu's raking possession in his own r; ght however minute the interval may _be and that except in the case of succession or devolution all other cases would fall within the principle enunciated in Agency Co's F , case(').", "canonical_name": "Punnayya"}}, {"text": "S'ubbarayudu", "label": "OTHER_PERSON", "start_char": 17780, "end_char": 17792, "source": "ner", "metadata": {"in_sentence": "It may be pointed out that on Punnayya 's death h's mother would be the h.eir and that it was established in that case that she was living with his brother S'ubbarayudu and his G other brothers: Subbarayudu would,.", "canonical_name": "Subbarayudu D"}}, {"text": "Subbaryudu", "label": "OTHER_PERSON", "start_char": 17971, "end_char": 17981, "source": "ner", "metadata": {"in_sentence": "therefore, be a presumptive reversioner on the death of hismother and there was evidence to show that she was a consenting party to Subbaryudu's enjoying the properties after Punnayya's death.", "canonical_name": "Subbarayudu D"}}, {"text": "Varadachariar", "label": "JUDGE", "start_char": 19327, "end_char": 19340, "source": "ner", "metadata": {"in_sentence": "As pointed out by Varadachariar J., in Rajagopala Naidu v. Ramasubramania Ayyar(')."}}, {"text": "Macnaghten", "label": "OTHER_PERSON", "start_char": 19740, "end_char": 19750, "source": "ner", "metadata": {"in_sentence": "The following observations of Lord Macnaghten in that case are pertinent and run thus:\n\n\"They are of opinion that if a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession."}}, {"text": "art. 144", "label": "PROVISION", "start_char": 21230, "end_char": 21238, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(4)", "label": "PROVISION", "start_char": 21438, "end_char": 21445, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 21453, "end_char": 21467, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1965_3_641_654_EN", "year": 1965, "text": "KALOORAM GOVINDRAM\n\nCOMMISSIONER OF INCOMETAX, MADHYA PRADESH,\n\nNAGPUR\n\nAp; il 5, 1965\n\n[K. SUBBA RAo, J. c. SHAH AND s. M. SIKRI, JJ.]\n\nIndian Income-tax Act, 1922 (11 of 1922), s. 10(2! '.'i-P\"\"1titioo, of Hindu joint fami!y-Asset auctioned between dividing brances -Value on which depre(!iation to be allowed-Whether on auction price or on original cost to the erstwroile larger family.\n\nOn partition being effected through a suit, a Hindu joint family who has only an interest in the entire joint family property_ ae>- family. The preliminary decree passed by the Court determmed 10/16 as the share of the appellant family and 6/16 as that of the other branch. Those assets of the erstwhile larger joint family which could not be physka!ly divided were auctioned between the two branches and in this manner a sugar mill was purchased for 34 lacs by the appellant family. In Income-tax proceedings depreciation under s. 10(2) (vi) of the Indian Income-tax Act, 1922 was claimed on the above valuation Qf 34 lacs. The claim was rejected by the Income-tax Officer as well as the Appellate Assistant Commissioner. on the ground that the value for th, e purpose of depreciation was not the price determined at the family auction, but the original cost to erstwhile larger joint family. The Tribunal held that the 6/16 share of the other branch was purchased at the auction and its value had to be taken as the basis of the price determined at the auction, but the appellant family's own share of 10/16 was not purchased at the auction and therefore had to be valued at the original cost to the larger joint family. In reference, the High Court held that the distinction made by the Tribunal was wrong and that the shares cxf both branches had to be valued on the basis of the original cost to the\n\nl<trger family. Appeal was filed before this Court with certificate.\n\nHELD: Per Subba Rao and Sikri, JJ. It may be that in strict legal theory partition may not involve a transfer, but the substance of the transaction is that an erstwhile member of a joint Hindu family who has only an interest in the entire joint family property acquires an absolute title to a specific property. The cost of the property to the member at the date of partition would be the value given to it for the purpose of allotment, provided it was real, or the price at which he purchased it in auction, or the value of it ascertained otherwise. [64'7A-C]\n\nIn the case of assessees acquiring a property by purchase, gift, bequest, or succession, courts have held that the cost of the property to the assessee was not the original cost of it to his predecessor bu1 its actual cost to him at the time of the purchase, gift, bequest or succession. In substance there is no difference in the matter of ascertaining the cost of an asset to an asses.see whether he is a donee, pur ... chaser, legatee, successor, or a divided member of\" a joint Hindu family. [646D; 647A]\n\nGil\n\n6-12 SUPH.F.ME COUR'r\n\nREPORTS [1965] 3 s.c.n.\n\nCommissioner of Income-tax, Madras v. The Buckingham & Carnatic Company, Ltd., Madras (1935) 3 I.T.R. 384(P.C.), Jagata Coal Co. Ltd. v. Commissioner of Income-tax, West Bengal (1959) 36 I.T.R.\n\n521 (S.C.), Indian fron & Steel Co. Ltd. v. Commissioner of Incometa.~. Bengal, (1943) 11 I.T.R. 328 (P.C.), Francis Vallabaravar v. Commissioner of Income-tax, Madras (1960) 40 I.T.R. 426 and Commissioner of Income-tax, Bombay v. Solomon & Sons (1933) 1.I.T.R.\n\nB 324, referred to.\n\nCommissioner of Income-tax, U.P. & C.P. v.\n\nSeth Mathuradas Mohta, (1939)7 I.T.R. 160, disapproved.\n\nIn the present case the valuation given to the property was not notional but a real one; indeed the property was sold in the open auction between the members of the larger joint family and the value fetched thereunder entered into the scheme of partition.\n\n[647 C-DJ Therefore, even in respect of the appellant's own share of 10/16, the valuation for the purposes of s. 10(2) (vi) had to be on the basis of the price which the appellant bid at the auction.\n\nPer Shah, J. (dissenting). By the preliminary decree the appellant family became entitled to a 10/16th share in every item of the property of the larger joint family; the other branch tecame entitle to the remaining i.e. 6/16th share in each item. The appellant being already owner of 10/16th share could not purchase the same at the auction. In substance the appellant purchased, by beinii declared the highest bidder, the remaining 6/16th share belonging to the other branch. [650 C-E]\n\nThe asset in question, viz, the sugar factory, at all material times remained a business asset. Acquisition of 'the interest of the other branch by the appellant did not alter the character or use of the as.set; nor did it make any fundamental alteration in its value to the appellant so as wholly to displace its original value even in respect of its share which it continued to own. [654 B-D]\n\nThe '.l'ribunal therefore, had rightly held that in respect of the 6/16th share of the other branch, depreciation had to be allowed to the appellant on the basis Qf the auction price. The High Court wrongly interfered with this finding the Revenue not having appealed against it.\n\nOn the appellant's 10/16th share, which the appellant could not be said to have purchased, depreciation had to be calculated on the basis of original cost to the larger family. (654 E-G]\n\nCase law discussed.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 41 of 1964.\n\nAppeal from the judgment and order dated April 10, 1961 of the Madhya Pradesh High Court in Misc. Civil Case No. 154 of 1959.\n\nN. D. Karkhanis, Rameshwar Nath, S. N. Andley and P. L.\n\nVohra, for the appellant.\n\nC. K. Daphtary, Attorney-General, R. Ganapathy Iyer and R. N. Sachthey, for the respondent.\n\nMjs. KALOORAM v. C.I.T. (Subba .Rao, J.) 6~3\n\nThe Judgment of Subba Rao and Sikri, JJ. was delivered by Subba Rao, J. Shah, J. delivered a dissenting Opinion.\n\nSubba Rao, J. The appellant is a Hindu undivided family carrying on business at Jaora. It was a branch of a larger joint B Hindu family composed of two branches-one was Govindram and the members of his family and the other was Bachhulal and the members of his family. In the year 1942 there was a partition suit between the said two branches and under the decree made therein each item of the property was put up for sale by competitive\n\nc bidding. One of the items of the said property, the sugar factory at Jaora, was knocked down ii:! favour of\" Govindram for a sum of Rs. 34 lakhs. After all the items of the property were sold to one or other of the parties, final adjustments were made by cash payment. After the said partition Govindram and the members of his branch of the family continued to run the factory. For the assessment year 1950-51 the Income-tax Officer, Ratlam, as- D sessed the appellant in respect of the income from the said factory. The appellant contended that it was entitled to depreciation as provided under s. I 0(2) (vi) of the Income-tax Act, 1922, hereinafter called the Act, on the said amount of Rs. 34 lakhs, being the amount for which it purchased the factory in the auction that was held pursuant to the partition decree. The Income-tax Officer E and, on appeal, the Appellate Assistant Commissioner rejected that contention and held that the value to be adopted for the purpose of depreciation would be the original cost of the said factory to the larger joint family. On a further appeal, the Incometax Appellate Tribunal held that so far as the 10 /16th share in\n\n. H\n\nthe factory which belonged to the appellant was concerned the cost to the appellant was the original cost to the larger branch; and so far as the 6 / l 6th share of Bachhulal's branch in the said factory was concerned the original cost was the amount for which the appellant's branch purchased the 6/16th share of the other branch, i.e., Rs. 12,75,000/-. The following question was referred by the Tribunal to the High Court of Madhya Pradesh: ' \"Whether on the facts and in the circumstances of this case, the assessee Hindu Undivided Family is entitled to claim depreciation in respect of the assets of the old Hindu Undivided Family on the basis of the original cost to the family or on the basis of the valuation at which the assessee took over the assets\" . The High Court held that the depreciation allowance should be omputed on the basis of the original cost to the larger joint family and not on the basis of the valuation at which the assessee to?k over the assets. The assessee, by certificate granted by the High Court, has preferred the present appear to this Court against that order.\n\nTe .only question that arises in this appeal is whether the deprectal!on allowance should be computed in respect of the\n\n644 SUPREME COUB'l' BEPOR1'S [1965] 3 s.c.R.\n\n10 / 16th share in the factory on the basis of the original cost to the larger joint family or on the basis of the valuatio~ at wh_ich the assessee took over the factory. The answer to this question turns upon the relevant provisions of the Act and they read: Section 10(2): Such profits or gains shall be computed after making the following allowances, namely: -\n\n(vi) in respect of depreciation of such buildings, machinery, plant or furniture being the property of the assessee, a sum equivalent, where the assets are ships other than ships ordinarily plying on inland waters, to such percentage on the original cost thereof to the assessee as may in any case or class of cases be prescribed and in any other case, to such percentage on the written down value thereof as may in any case or class of cases be prescribed :\n\nSection 10(5) of the Act defines \"written down value\" thus:\n\n\"written down value\" means-\n\n(a) in the case of assets acquired in the previous year, the actual co; t to the assessee :\n\n(b) in the case of assets acquired before the previous year the actual cost to the assessee less all • depreciation actually allowed to him under this Act or any Act repealed thereby, or unde~ executive orders issued when the Indian Income-tax Act, 1886 (II of 1886) was in\n\nforce\".\n\nF It is not disputed that no previous depreciation was allowed under any Act repealed by the Indian Income-tax Act, 1922, or under any executive order issued under the Indian Income-tax Act, 1886. Therefore, the appellant would be entitled to depreciation allowance on the original cost to it of the factory. What is the G original cost of the 10/ 16th share in the factory to ilie appellant?\n\nTwo expressions in cl. (vi) of sub-s. (2) of s. 10 give the clue to the answer, and they are, (i) \"being the property of the assessee\", and\n\n(ii) \"the original cost thereof\". Therefore, depreciation is given in respect of property of an assessee on the original cost of the said property to him. The factory is the property of the assessee. What H was the original cost of the property to the assessee? Admittedly Govindram purchased it in the auction for Rs. 34 lakhs. Ordinarily that would be the cost of the factory to the assessee. It was conceded. that it would be so if a third party had purchased it. But as the auction was only a step in the partitioning of the property of the .larger family among the branches composing it, Govindram did not purchase it but only got it in the partition. lt was then\n\nM,:s. KALOORAM v. c.1:r. (Subba Rao, J.) 641>\n\nA contended that partition did not involve a1.'y c?nveyace or transfer. but it was only a procesdn and by which iomt enioyment was transformed into an enjoyment in severality and that, therefore, the appellant did not get any new title to the factory or at any rate to the 10/ 16th share therein, but its title was traceable to the ownership of the larger joint family. On the said reasoni1.'g. it was .argued JI that the original cost of the factory to te larger 1011.'t famil.Y. was the cost to the assessee within the meaning of the said prov1s10ns.\n\nThe entire argument is based on a misapprehension of the scope of partition under Hindu Law. Coparcenery is a creature of Hindu law. The concept involves \"community of interest, unity of C possession and common enjoyment\". Each coparcener's right ex-·\n\ntends to the whole joint family property; though each one of them has interest in the whole family property, he has no definite share therein. Partitioning is the ascertainment of individual shares and it can be brought about by an unambiguous declaration of their intention to divide, ie., by a conscious alteration of their status.\n\nD Such a declaration brings about a division in status. At that stage the members of aii. erstwhile joint family become tenants-in-common. The next step is the division by metes and bounds whereunder separate properties are allotted towards the said definite\n\nshares of the individuals. Whether the said process involves transfer or not within the meaning of the Tramfer of Property E Act, it certainly confers on a divided member an absolute title to a specified property, whereas before the partition he had only some interest in the entire joint family property. Though in one sense his interest in the property of the larger joint family has become crystallized into a specific property, in substance he acquires a title to a specific property. Even from a practical standpoint F the legal fiction of \"pre-existing title\" cannot be stretched too far.\n\nTake the following illustration: A and B were members of a joint Hindu family in 1930 and continued to be so till 1960 when a partition was effected between them. They had 4 houses in 4 villages; and the original cost of each of the houses was Rs. 100/-.\n\nIf a partition had taken place in 1930 or thereabout, each one of G the two brothers would have got 2 houses each, and the partition would have been equitable and fair. But during these 3'0 years one village developed into a town and the value of the house therein had increased to Rs. 500 /-. There was no appreciable rise in price in regard to the other 3 houses and they together would fetch only Rs. 500/- in the market. In the result at the partition that was effec- R ted in 1960 the house in the town was given lo one of the brothers and the other three houses together were given to the other brother.\n\nWhat would be the cost of the house in the town to the brother to\n\nwo!fi it was allotted? Clearly it would be Rs. 500 /-, though the ongmal cost of the house at the time it was built or purchased was only Rs. !00 /-. Because of 'the uneven rise in prices of the different\n\nouses, instead of to houses he got only one house at the partition. The cost to him, therefore, would be the cost at which the\n\nSlJPREJ4E COURT REPORTS\n\n(1965] 3 S.C.I\\.\n\nproperty was valued at the partition or at which it was auctioned for the purpose of partition. Take another illustration: Instead of A partitioning the properties by evaluation thereof, the houses were sold to a third party. So far as the third party was concerned the .cost price would be the price at which he purchased them. If instead, the properties were sold by auction between the brothers and .the difference in prices was adjusted by cash payment, it would be B incongruous to say that in the former the cost of the houses would be the cost actually paid by the third party purchaser and in the latter the cost of the houses would not be the price for which they were auctioned but the nominal price they bore in a remote past.\n\nOther illustrations may be visualized. Barring the cases of fraud, collusion and inflation and deflation of values for ulterior purposes, cost of an asset to a divided member must necessarily be its cost to him at the time of partition, wl)ether mentioned in the partition deed or ascertained aliunde.\n\nAnalogy drawn from comparable cases may also throw some light on the question. In the case of an assessee acquiring a property by purchase, gift, bequest or succession, courts have held D that the cost of the property to the assessee was not the original cost of it to his predecessor but its actual cost to him at the time of the purchase, gift, bequest or succession, as the case may be: see Commissioner of lncome-ta.t, Madras v. The Buckingham & Carnatic Company, Ltd .. Madrav ('), and Jagla Coal Co. Ltd. v Commissioner of Income-tax, West Benga/0-purchase; Indian E Iron & Steel Co. Ltd. v. Commissioner of Income-tax, Bengal('), and Francis Va/labarayar v. Commissioner of Income-tax, Madras(')-succession; and Commissioner of Income-tax, Burma v.\n\nSolomon & Sons(')-bequest. A Division Bench of the Nagpur High Court in Commissioner of Income-tax, U. P. & C. P. v. Seth Mathuradas Mohta(') dealt with a. case of partition. Therein, it F held that the cost to the assessee, who was a divided member, of a property was the cost of it to the original joint Hindu family at the time it was acquired. The learned Judges gave various illustrations in support of their conclusion. It is true that, if'the valuation of the properties was given notionally as a mode of chposing properties, there will be some plausibility in the contention that there is no change in the valuation between the date the property was purchased and the date when it was allotted to one of the members of the family. But, if the valuation of a property was\n\nnot notional but was real and that was the basis for allocating properties to different shares, we do not see how the cost of a pro- B perty allocated to a member would be that at which it was purchased in the remote past. We cannot agree with the view expressed by the Nagpur High Court.\n\n(') (1935) 3 I.T.R. 384 (P.C.)\n\n(') (1959) 36 J.T.R. 521 (S.C.).\n\n'.') 11943) 11 J.T.R. 328 (P.C.).\n\n(') (1960) 4-0 J.T.R. '26.\n\n(') (1933) 1 !.T.R. 324.\n\n(') (1939) 7 I.T.R. 160.\n\nMjS. KALOORAM V. C.I.T. (Shah, J.) 641\n\nA In substance we do not see any difference in the matter of ascertaining the cost of an asset to an assessee whether he is a donee, purchaser, legatee, successor or a divided member of a joint Hindu family. It may be that in strict legal theory partwn may not involve transfer, but the substance of the transact10n 1s B that an erstwhile member of a joint Hindu family, who has only an interest in the entire joint family property acquires an absolute title to a specific property. The cost of the property to the member at the date of partition would be the value given to it for the purpose of allotment. provided it was real, or the price at which he purchased it in auction or the value of it ascertained otherwise. c\n\nIt is nobody's case in the present appeal that the valuation given to the property was notional and not a real one: indeed. the property was sold in open auction between the members of the larger joint family and the value fetched thereunder entered into the scheme of the partition.\n\nWe, therefore. answer the question as follows:\n\nThat depreciation allowance should be computed on the basis of the valuation at which the assessee took over the assets.\n\nE In the result. the appeal is allowed with costs here and in the High Court.\n\nShah, J. A sugar factory in the forrncr lnd1:_u1 State of Jaora belonged to a Hindu undivided family of Govi,, dram and his nephew Bachhulal. In a suit filed by Bachhuial in 1942 in the Civil F Court at Jaora against Govindram for partition of the properties of the undivided family, Govindram was declared entitled to a 10 ! I 6th share in the property of the family and Bach hula! to the remaining 6/ 16th share. A Commissioner was appointed for dividing the properties. Certain properties of the family were incapable of division by metes and bounds. and by order of the Court in G which the suit was instituted those properties were put up for sale by \"competitive bidding between the parties\". A sugar factory at Jaora-cailed 'the Govindram Sugar Factory'-was put up for competitive bidding. and the bid of Govindram for Rs. 34 lakhs being accepted, the sugar factory was allotted to his share. Other assets H of the family were similarly allotted to Govindram or to Bachhulal according as he offered the higher bid. Account was then made between Govindram and Bachhulal of properties allotted on the basis of the bids accepted at the competitive bidding and Govindram was found liable to pay Rs. I 1,26,200/- after taking into account a debit item of Rs. 12,75.000/- being the value of the 6/16th share of Bachhulai in the sugar factory. Govindram died in 1943, and the appellant is the Hindu undivided family which represents the branch of Govindram.\n\nSUl'REllE COURT REPORTS [1965] 3 s.c.11.\n\nThe Indian Income-tax Act 9 of 1922 was applied to Part A 'B' States hy the Finance Act 25 of 1950. In the assessment year\n\n1950,51 which was the first year of assessment after the State of Jaora became part of the Indian Union, the appellant Hindu undivided family claimed depreciation allowance under s. 1-0(2) (vi) of the Indian Income-tax Act in respect of the sugar factory computed on a valuation of Rs. 34 lakhs. The Income-tax Officer re- B jected the claim of the appellant and allowed depreciation only on the actual cost to the Hindu family of Govindram and Bachhulal before it was divided. The order of the Income-tax Officer was <:onjirmed by the Appellate Assistant Commissioner in appeal.\n\nThe Income-tax Appellate Tribunal held that the value for purposes of depreciawon should be I0/16th share of the original cost C to the larger Hindu undivided family plus Rs. 12,75,000/- (paid by Govindram on behalf of the assessee to Bachhulal for the latter's 6 /16th share in the sugar factory). At the instance of the appellant, the Tribunal referred the following question to the High Court of Madhya Pradesh under s. 66(1) of the Income-tax D Act:\n\n\"Whether on the facts and in the circumstances of this case, the assessee Hindu Undivided Family is entitled to claim depreciation in respect of the assets of the old Hindu Undivide'd Family on the basis of the original cost to the family or on the basis of the valuation E at which the assessee took over the assets?\" The High Court of Madhya Pradesh recorded the following answer:\n\n\"that the depreciation allowance should be computed on the basis of the original cost to the joint family and not F on the basis of the valuation at which the assessee took over the assets\".\n\nIn so answering the question, the High Court committed a dear error of law. The Commissioner had acquiesced in the order of the Tribunal and had nnt claimed that the original value to the larger Hindu Undivided Family was the only amount on which G depreciation allowance was to be computed. The Income-tax authorities had held that for the purpose of computing the depreciation allowance, the original cost to the joint family had to be the basis, but the Tribunal did not accept that view and held that the depreciation allowance in respect of the sugar factory was to be computed on the basis of I0/16th of the original value plus H Rs. 12,75,000/-. The Commissioner having acquiesced in the order of the Tribunal, the only question on which the High Court was called upon to advise was whether in respect of the I0/16th share which fell to the share of Govindram, depreciation al!owance may be computed on the basis of the original cost to the la~ undivided family or on the basis of Rs. 34 lakhs being the value of the factory offered at the auction. ·\n\nMjs. KALOORAM v. C.I.T. (fJ/lali, J.) 649\n\nA In the computation of profits and gains of any business carried on by an assessee, under the head \"Profits and gains of business\" by s. 10 sub-s. (2) the assessee is entitled to an allowance for depreciation under cl. (vi). The material part of sub-s. (2) cl. \\vi) pro, vides:\n\nB \"(2) Such profits or gains shall be computed after making the following allowances, nmely: -\n\n(vi) in respect of depreciation of such buildings, machinery, plant or furniture being the property of the assessee, a sum equivalent, where the assets are ships other than ships ordinarily plying on inland waters, to such per- C centage on the original cost thereof to the assessee as may in any case or class of cases be prescribed and in any other case, to such percentage on the written down value thereof as may in any case or class of cases be prescribed:\n\nThe assets in respect of which the depreciation allowance is claimed being a factory, a percentage on the written down value as may be prescribed in respect of the buildings, machinery, plant and furniture therein is admissible as allowance. Sub-section \\5) of s.\n\nE 10 defines \"written down value''. It provided, insofar as it was material at the relevant time:\n\n\" 'written down value' meansfa) in the case of assets acquired in the previous year, the\n\n actual cost to the assessee: \\\n\nProvided\n\nProvided further\n\n(b) in the case of assets acquired before the previous year\n\nthe actual cost to the assessee less all depreciation G actually allowed to him under this _Act or any Act repealed thereby, or under executive orders issued when the Indian Income-tax Act, 1886 (II of 1886), was in\n\nforce:\"\n\nThe depreciation allowance under s. 10(2)(vi) in respect of 11 B factory has to be allowed in the manner prescribed on the actual value to the assessee limited to the buildings, machinery, plant and furniture. No previous depreciation has been allowed.under any Act repealed by the Indian Income-tax Act, 1922 or under any executive order issued under the Indian Income-tax Act, 1886 and therefore the appellant is entitled to depreciation allowance under s. 10\n\n(2) (vi) on the actual cost to the assessee of assets for which depreciation is admissible.\n\nSUPREME COURT REPORTS\n\n[1965) 3 S, C.R.\n\nThe factory originally belonged to a larger .Hindu undivided family. In the scheme of partition devised under the preliminary A decree the factory was allotted to Gbvindram, his bid of Rs. 34 lakhs having been accepted by the Court. The true effect of the scheme under which the properties were put up for competitive bidding under the order of the Court was that the interest of the other member was to be conveyed at a value based on the offer made by the higher bidder. In other words, each party was given B an option to purchase the share of the other, but the option was exercisable only by the person who offered the higher bid for the asset. By the preliminary decree, the share of Govindram was defined at 10/ 16th and he became 'entitled to that share in every item of property and Bachhulal became entitled tb the remaining 0 6 /16th share iri each such item. But some of the properties were found incapable of physical division and a scheme was devised under which one of the sharers was entitled to purchase the share of the other on a valuation based on the bid offered by him, provided it was the higher of the twe> bids. Value of the bid was however taken into account only for making up accqunts. In substance D the appellant purchased by being declared the higher bidder the 6/16th share belonging to Bachhu1al in the sugar factory for Rs. 12, 7 5,000 I-. He was, and remained the owner of the 10 /16th share, and that share was neither sold nor conveyed to him: he merely purchased the share of Bachhulal for Rs. 12,75,000/-. The Tribunal was therefore right in hblding that in respect of the 6 I E 16th share, Rs. 12,75,000/- paid by Govindram was the actual cost to him. On this part of the case apparently no dispute was or could be raised before the High Court. But the appellant contends that even for the purpose of th.e 10/ 16th share, the depreciation allowance sl\\ould be computed bn the basis of a va1uation of Rs. 34 lakhs bid by Govin<lram for the factory.\n\nOur attention was invited to a large number of authorities in support of the contention raised by the appellant that the price of the sugar factory on the basis of which the share bf Bachhulal was valued shquld be regarded as decisive of the value of the asset on which depreciation allowance is admissible. The argument in substance is that the actu.al cost of the sugar factory is Rs. 34 lakhs, that being the price at which the factory was acquired by Govindram.\n\nAn asset which is admissible to c'.epreciation allowance may\n\nbe bbtained by gift, inheritance or succession. In such a case the person who acquires an interest in the asset pays no price for it, H but on that account it cannot be said that he is not entitled to depreciation allowance. In respect of such an asset, in the absence of any statutory provision, depreciation would be Cbmputed on the market value on the date of acquisition of interest. An asset may be acquired by purchase, in which case in the absence of evidence to show that the valuation was unduly inflated, the value\n\nM./B. KALOORAM. v. c.r.T. (Shah, J.) 651\n\nA paid by the assessee is th~ actual cost to him, and not th~ valll:e\n\npaid by his vendor for acquiring it. Again proper!~ .. which 1s owned jointly by more persons than one, by the acqms1tton o~ the interest of the other joint owners becomes the property of a smgle owner. , B In Francis Vallabarayar v. Commissioner of Income-tax, Madras(') a Division Bench of the Madras High Court held that an assessee is entitled in assessment of tax under s. 10 of the Incometax Act, to depreciation allowance in respect of machinery or plant, which he acquires by inheritance, on the market value of such property at the elate of inheritance. The same principle would I)' apply to cases of gift and succession. The Legislature has by adding cl. (c) in sub-s. (5) of s. 10 by s. 8 of the Indian Income-tax (Amendment) Act 25 of 1953, defined 'written-down value' in the case of assets acquired by the assessee by way of gift or inheritance as being the written-down value as in the case of previous owner . or the market value thereof whichever is less. In the case of pur- D chase, as we have already observed, in the absence of fraudulent over-valuation with a view to obtain an unfair advantage, the price paid by the purchaser would be regarded for the purpose of depreciation allowance as the actual cost to him, and not the original cost to the vendor: Commissioner of Income-tax v. The Buckingham Carnatic Company Ltd,('): Jogta Coal Company Ltd. v. Comf!i missioner of Income-tax, West Bengal (').. Cases in which full title to an asset, in respect of which depreciation is claimed, is obtained in consequence of partition of a Hindu undivided family introduce a complication, which is a peculiar product of the rules of Hindu law. Under the Mitakshara system the essence of a coparcenary is unity of ownership, and so long as the family remains F joint no individual member can claim that he !las a definite share in the joint property. Until partition takes place, there is community of interest and unity of possession between all the members: it is only on partitipn that the interest of each member becomes definite. \"Partition .................. is really a process in and by which\n\nG a joint. enjoyment is transferred into an enjoyment in severalty.\n\nEach one of the sharers had an antecedent title and therefore no conveyance is involved in the process . . . . .. \" Gutta Radhal:ristnayya v. Gutta Sarasamma(').\n\nBy the preliminary decree Govindram and Bachhulal acquired definite interest in the sugar factory proportionate to the shares H declared by the decree in the entirety of the estate, and the scheme by which Govindram became owner of the sugar factory was in truth one by which he purchased 6 /16th share of Bachhulal. He was by the decree, which recognised his pre-existing title, entitled to IQ/16th share and he purchased the remainder. The\n\n(') 40 I.T.R. 426,\n\n(') 3 I.T.R. 385.\n\n(') 36 I.T.R. 521. (') I.L.R. [1951] Mad. 607.\n\nLP(Dl5SCI-3\n\n652 SUPllllllE COURT REPORTS [1965] 3 s.o.a.\n\nscheme of \"competitive bidding\" was adopted only for the pur- A pose of valuing the interest of the other sharer at which the first sharer was to purchase it. The highest bidder took the entire asset and paid a share of the value bid by him equal to the share of the other sharer in the family estate. Govindram was the owner of IO /16th share: by offering the bid for Rs. 3.4 lakhs he did not purchase the I0/ 16th share. He merely purchased the 6/ 16th share B of Bach):mlal at a price based on total valuation of the sugar factory at Rs. 34 Iakhs.\n\nThe dicta to the contrary in Commissioner of Income-tax U.P. & C.P. v. Seth Mathuradas Mohta (') on which the High Court relied do not, in my judgment, lay down the correct rule. In that case C coparceners of a Hindu family consisting of two members owning a Ginning Factory which was originally purchased for Rs. 23 lakhs decided to separate, and as the Ginning Factory could not be divided it was put to auction and purchased by 'A' for Rs. 28 lakhs. 'A' was debited in taking account with half the amount-offered by him. Subsequently 'A' claimed depreciation allowance on the basis D of Rs. 28 lakhs which he had paid. alleging that that was the original cost to him. The Income-tax authorities rejected the claim, and adopted the original value to the joint family as the actual value to 'A' for computing depreciation allowance under s. 10(2)(vi). In dealing with a reference made by the Tribunal on the question whether the Income-tax Officer had the power to ignore the valua- E tion made by the parties in ascertaining the original cost of the roachinery and building to the aiisessee, the High Court observed : .. . . . the original cost is the cost of acquiring title. The cost of acquiring title is to be ascertained at the time when the property is acquired by the coparp cenary. Thereafter one is not concerned with cost strictly so called but one is concerned with a mode of partition. As a result of the partition each (fraud, overreaching and the like being put on one side) is to be regarded as having got half by the mode of division adopted whether that mode be through Court, arbitra- G tion, private auction or drawing lot~ or any other mode agreed upon. The original cost of the property is not increased though one side might in the result get what a third person would regard as less than half though what the person concerned (at least in the case of private auction) thought at the time was at least equal B to half; otherwise he would not have bid so much\".\n\nThese observations were not necessary for the purpose of answering the question posed before the Court. The question posed before the High Court related not to what the true value for computing the allowance for depreciation was, but to the power of the -------·\n\n(1) 7 I.T.R.!60. '\n\n11/s. KALOORAM V. C, J.'I'. (Shah, J.) 653\n\nA Income-tax Officer to ignore the valuation placed by the parties in the deed of partition in ascertaining the true value for the purpose of such computation.\n\nDeath or .birth of coparceners does not alter the identity. of the Hindu undivided family which utilizes an asset for earrung B income or profit. Death of a coparcener merely extinguishes an existing interest, but there is no devolution of tat interest. But where the joint family status is severed and the nghts of the parties are crystalised and a member acquires the interest of the other in any item of property though arbitration, agreement, decree of the Court or a private auction, there is a transfer of interest from C one to the other in that property and the value paid br taken into\n\naccount for acquisition of that interest would normally be regarded qua that share as the actual cost to the acquirer for the purpose of s. 10(2)(vi), but the value of his own share is determined by the actual cost to the family.\n\nCounsel for the appellant piaced strong reliance upon Com- D missioner of Income-tax v. Bai Shirinbai K. Kooka (') which belongs to a different branch of the law of Income-tax. Where an assessee brings his investments into his business, the question arises whether in assessing income-tax payable on income earned by sale or disposition of such investment the original value at E which they were acquired or the market value as at the date on which they were brought into the business has to be taken into account. In Shirinbai's case(') the assessee who held by way of investment several shares in different companies commenced a business in shares by converting the shares into stock-in; trade of the business. The assessee subsequently sold those shares in the F course of the business at a profit. A majority of this Court held that the assessee's assessable profits on the sale of the shares was the difference between the sale price of the shares and the market price of the shares prevailing on the date when the shares were converted into stock-in-trade of the business, and not the difference between the sale price and the price at which the shares were origi- G nally purchased by the assessee. The Court in that case distinguished the earlier case decided by this Court Sir Kikabhai Premchand\n\nv. Commissioner of Income-tax(') in which it was held that the assessee was entitled to value at cost price, certain business assets which were after withdrawal from the business settled upon trust.\n\nBut neither of these cases has a bearing on the computation bf de- H predation allowance which is qua building, machinery, plant (not being ships) or furniture to be a percentage of the written-down value. A person who transfers his investments which are not part of his business into the stream of his business may value the investments at the prevailing market rate on the date on which they are brought into the business. In Shirinbai's case(') the Court was\n\n(') 46 I.T.R. 86.\n\n(') 24 I.T.R. 506,\n\n65-i SUPREME COURT RllPORTS [1965] 3 s.c.a.\n\n\\ called upon to ascertain commercial profits earned by sale of stock- A in-trade and in so doing regarded the ow11er as investor and as businessman as two different entities. S. K. Das. J., speaking for the majority observed that normally the commercial profits out of a transaction of sale of an article must be the difference between what the article cost the business and what it fetched on sale. But it is difficult to appreciate how that principle would apply in the B computation of depreciation allowance. The asset viz. the sugar factory at all material times remained a business asset. It was at one time owned by Govin<lram and Bachhulal, and if the. Incometax Act, 1922 had then applied, depreciation allowance would have been computed on the basis of the value to the family. Acquisition of the interest of Bachhulal by Govindram did not alter C the character or use of the asset: nor did it make any fundamental alteation in its value to the appellant so as wholly to displace its original value even in respect of the share which Govindram continued to own. Superficial analogies are often misleading and more so in taxation laws. In computing profits assets brought into the. business and subsequently sold may be regarded as inducted D at the prevailing market rates, for the taxing authority is concerned to deal with the business profits, arising out of a transaction of sale to the business. When depreciation allowance is to be computed, the taxing authorities have to consider what the original cost to the assessee was and valuation of a business asset adopted for the purpose of valuing the share of one of the owners from E whom his share was purchased cannot be regarded by any principle of commercial accounting as notionally altering the original cost of his own share in the asset to the acquirer. The assessee does not p1m:hase his own share at the valuation put by him at the private auction: he merely purchases the share of the other sharer at.a valuation mad.e on the bid offered by him. I am unable there- F fore to agree with counsel for the appellant that for the purpose of valuing I 0 / 16th share of Govindram the basis should be the valuation of Rs. 34 lakhs which was adopted for valuing Bachhu- Ia!'s share.\n\nI therefore answer the question as follows: G That depreciation allowance should be computed on the basis of JO /16th share of the original cost to the joint family of the assets which are admissible to depreciation allowance plus an appropriate amount attributable to the assets admissible to depreciation allowance on the footing that the value of 6/16th share of Bachhulal B in the factory was Rs. 12,75,000/-.\n\nThe order passed by the High Court will accordingly be modified. There will be no order as to costs.\n\nORDER In accordance with the majority judgment. the appeal is allowed with costs here and in the High Court.", "total_entities": 72, "entities": [{"text": "KALOORAM GOVINDRAM", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "KALOORAM GOVINDRAM", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOMETAX, MADHYA PRADESH,\n\nNAGPUR", "label": "RESPONDENT", "start_char": 20, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOMETAX, MADHYA PRADESH, NAGPUR", "offset_not_found": false}}, {"text": "K. SUBBA RAo, J.", "label": "JUDGE", "start_char": 89, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "c. SHAH", "label": "JUDGE", "start_char": 106, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "c. SHAH", "offset_not_found": false}}, {"text": "s. M. SIKRI, JJ.", "label": "JUDGE", "start_char": 118, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 137, "end_char": 164, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 941, "end_char": 968, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 1877, "end_char": 1886, "source": "ner", "metadata": {"in_sentence": "HELD: Per Subba Rao and Sikri, JJ."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 1891, "end_char": 1896, "source": "ner", "metadata": {"in_sentence": "HELD: Per Subba Rao and Sikri, JJ."}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 3939, "end_char": 3947, "source": "regex", "metadata": {"statute": null}}, {"text": "Per Shah", "label": "JUDGE", "start_char": 4030, "end_char": 4038, "source": "ner", "metadata": {"in_sentence": "Per Shah, J. (dissenting)."}}, {"text": "s 10", "label": "PROVISION", "start_char": 5213, "end_char": 5217, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 5405, "end_char": 5433, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION: Civil Appeal No."}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 5528, "end_char": 5553, "source": "ner", "metadata": {"in_sentence": "Appeal from the judgment and order dated April 10, 1961 of the Madhya Pradesh High Court in Misc."}}, {"text": "N. D. Karkhanis", "label": "OTHER_PERSON", "start_char": 5592, "end_char": 5607, "source": "ner", "metadata": {"in_sentence": "N. D. Karkhanis, Rameshwar Nath, S. N. Andley and P. L.\n\nVohra, for the appellant."}}, {"text": "Rameshwar Nath", "label": "OTHER_PERSON", "start_char": 5609, "end_char": 5623, "source": "ner", "metadata": {"in_sentence": "N. D. Karkhanis, Rameshwar Nath, S. N. Andley and P. L.\n\nVohra, for the appellant."}}, {"text": "S. N. Andley", "label": "OTHER_PERSON", "start_char": 5625, "end_char": 5637, "source": "ner", "metadata": {"in_sentence": "N. D. Karkhanis, Rameshwar Nath, S. N. Andley and P. L.\n\nVohra, for the appellant."}}, {"text": "P. L.\n\nVohra", "label": "LAWYER", "start_char": 5642, "end_char": 5654, "source": "ner", "metadata": {"in_sentence": "N. D. Karkhanis, Rameshwar Nath, S. N. Andley and P. L.\n\nVohra, for the appellant."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 5676, "end_char": 5690, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, R. Ganapathy Iyer and R. N. Sachthey, for the respondent."}}, {"text": "R. Ganapathy Iyer", "label": "LAWYER", "start_char": 5710, "end_char": 5727, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, R. Ganapathy Iyer and R. N. Sachthey, for the respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 5732, "end_char": 5746, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, R. Ganapathy Iyer and R. N. Sachthey, for the respondent."}}, {"text": "J. Shah", "label": "JUDGE", "start_char": 5884, "end_char": 5891, "source": "ner", "metadata": {"in_sentence": "was delivered by Subba Rao, J. Shah, J. delivered a dissenting Opinion.", "canonical_name": "c. SHAH"}}, {"text": "Govindram", "label": "OTHER_PERSON", "start_char": 6098, "end_char": 6107, "source": "ner", "metadata": {"in_sentence": "It was a branch of a larger joint B Hindu family composed of two branches-one was Govindram and the members of his family and the other was Bachhulal and the members of his family.", "canonical_name": "Govin<lram"}}, {"text": "Bachhulal", "label": "OTHER_PERSON", "start_char": 6156, "end_char": 6165, "source": "ner", "metadata": {"in_sentence": "It was a branch of a larger joint B Hindu family composed of two branches-one was Govindram and the members of his family and the other was Bachhulal and the members of his family.", "canonical_name": "Bachhulal B"}}, {"text": "Jaora", "label": "GPE", "start_char": 6438, "end_char": 6443, "source": "ner", "metadata": {"in_sentence": "One of the items of the said property, the sugar factory at Jaora, was knocked down ii:!"}}, {"text": "Ratlam", "label": "GPE", "start_char": 6803, "end_char": 6809, "source": "ner", "metadata": {"in_sentence": "For the assessment year 1950-51 the Income-tax Officer, Ratlam, as- D sessed the appellant in respect of the income from the said factory."}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 6987, "end_char": 7007, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 7952, "end_char": 7980, "source": "ner", "metadata": {"in_sentence": "The following question was referred by the Tribunal to the High Court of Madhya Pradesh: ' \"Whether on the facts and in the circumstances of this case, the assessee Hindu Undivided Family is entitled to claim depreciation in respect of the assets of the old Hindu Undivided Family on the basis of the original cost to the family or on the basis of the valuation at which the assessee took over the assets\" ."}}, {"text": "Section 10(2)", "label": "PROVISION", "start_char": 9065, "end_char": 9078, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10(5)", "label": "PROVISION", "start_char": 9630, "end_char": 9643, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1886", "label": "STATUTE", "start_char": 10039, "end_char": 10066, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 10197, "end_char": 10211, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Indian Income-tax Act, 1886", "label": "STATUTE", "start_char": 10265, "end_char": 10292, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10", "label": "PROVISION", "start_char": 10536, "end_char": 10541, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1886", "statute": "the Indian Income-tax Act, 1886"}}, {"text": "Nagpur High Court", "label": "COURT", "start_char": 16508, "end_char": 16525, "source": "ner", "metadata": {"in_sentence": "A Division Bench of the Nagpur High Court in Commissioner of Income-tax, U. P. & C. P. v. Seth Mathuradas Mohta(') dealt with a. case of partition."}}, {"text": "KALOORAM", "label": "JUDGE", "start_char": 17713, "end_char": 17721, "source": "ner", "metadata": {"in_sentence": "MjS. KALOORAM V. C.I.T. (Shah, J.) 641\n\nA In substance we do not see any difference in the matter of ascertaining the cost of an asset to an assessee whether he is a donee, purchaser, legatee, successor or a divided member of a joint Hindu family."}}, {"text": "Shah", "label": "JUDGE", "start_char": 17733, "end_char": 17737, "source": "ner", "metadata": {"in_sentence": "MjS. KALOORAM V. C.I.T. (Shah, J.) 641\n\nA In substance we do not see any difference in the matter of ascertaining the cost of an asset to an assessee whether he is a donee, purchaser, legatee, successor or a divided member of a joint Hindu family."}}, {"text": "State of Jaora", "label": "ORG", "start_char": 19055, "end_char": 19069, "source": "ner", "metadata": {"in_sentence": "Shah, J. A sugar factory in the forrncr lnd1:_u1 State of Jaora belonged to a Hindu undivided family of Govi,, dram and his nephew Bachhulal."}}, {"text": "Bachhuial", "label": "OTHER_PERSON", "start_char": 19167, "end_char": 19176, "source": "ner", "metadata": {"in_sentence": "In a suit filed by Bachhuial in 1942 in the Civil F Court at Jaora against Govindram for partition of the properties of the undivided family, Govindram was declared entitled to a 10 !", "canonical_name": "Bachhulal B"}}, {"text": "Civil F Court at Jaora", "label": "COURT", "start_char": 19192, "end_char": 19214, "source": "ner", "metadata": {"in_sentence": "In a suit filed by Bachhuial in 1942 in the Civil F Court at Jaora against Govindram for partition of the properties of the undivided family, Govindram was declared entitled to a 10 !"}}, {"text": "Govindram Sugar Factory'-was", "label": "ORG", "start_char": 19742, "end_char": 19770, "source": "ner", "metadata": {"in_sentence": "A sugar factory at Jaora-cailed 'the Govindram Sugar Factory'-was put up for competitive bidding."}}, {"text": "Bachhulai", "label": "OTHER_PERSON", "start_char": 20318, "end_char": 20327, "source": "ner", "metadata": {"in_sentence": "12,75.000/- being the value of the 6/16th share of Bachhulai in the sugar factory.", "canonical_name": "Bachhulal B"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 20518, "end_char": 20532, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "States hy the Finance Act", "label": "STATUTE", "start_char": 20569, "end_char": 20594, "source": "regex", "metadata": {}}, {"text": "State of Jaora", "label": "GPE", "start_char": 20688, "end_char": 20702, "source": "ner", "metadata": {"in_sentence": "In the assessment year\n\n1950,51 which was the first year of assessment after the State of Jaora became part of the Indian Union, the appellant Hindu undivided family claimed depreciation allowance under s. 1-0(2) (vi) of the Indian Income-tax Act in respect of the sugar factory computed on a valuation of Rs."}}, {"text": "s. 1", "label": "PROVISION", "start_char": 20810, "end_char": 20814, "source": "regex", "metadata": {"linked_statute_text": "States hy the Finance Act", "statute": "States hy the Finance Act"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 20839, "end_char": 20853, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s 6", "label": "PROVISION", "start_char": 21472, "end_char": 21475, "source": "regex", "metadata": {"linked_statute_text": "States hy the Finance Act", "statute": "States hy the Finance Act"}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 21632, "end_char": 21640, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 23480, "end_char": 23485, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1886", "label": "STATUTE", "start_char": 24927, "end_char": 24954, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10(2)(vi)", "label": "PROVISION", "start_char": 25019, "end_char": 25031, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1886", "statute": "the Indian Income-tax Act, 1886"}}, {"text": "Act repealed by the Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 25248, "end_char": 25295, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Income-tax Act, 1886", "label": "STATUTE", "start_char": 25342, "end_char": 25369, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10", "label": "PROVISION", "start_char": 25442, "end_char": 25447, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1886", "statute": "the Indian Income-tax Act, 1886"}}, {"text": "Gbvindram", "label": "OTHER_PERSON", "start_char": 25746, "end_char": 25755, "source": "ner", "metadata": {"in_sentence": "In the scheme of partition devised under the preliminary A decree the factory was allotted to Gbvindram, his bid of Rs.", "canonical_name": "Govin<lram"}}, {"text": "Bachhu1al", "label": "OTHER_PERSON", "start_char": 26902, "end_char": 26911, "source": "ner", "metadata": {"in_sentence": "In substance D the appellant purchased by being declared the higher bidder the 6/16th share belonging to Bachhu1al in the sugar factory for Rs.", "canonical_name": "Bachhulal B"}}, {"text": "Govin", "label": "OTHER_PERSON", "start_char": 27543, "end_char": 27548, "source": "ner", "metadata": {"in_sentence": "34 lakhs bid by Govin<lram for the factory.", "canonical_name": "Govin<lram"}}, {"text": "lram", "label": "OTHER_PERSON", "start_char": 27549, "end_char": 27553, "source": "ner", "metadata": {"in_sentence": "34 lakhs bid by Govin<lram for the factory."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 29036, "end_char": 29053, "source": "ner", "metadata": {"in_sentence": "B In Francis Vallabarayar v. Commissioner of Income-tax, Madras(') a Division Bench of the Madras High Court held that an assessee is entitled in assessment of tax under s. 10 of the Incometax Act, to depreciation allowance in respect of machinery or plant, which he acquires by inheritance, on the market value of such property at the elate of inheritance."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 29115, "end_char": 29120, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 29426, "end_char": 29431, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 29435, "end_char": 29439, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)(vi)", "label": "PROVISION", "start_char": 33068, "end_char": 33080, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)(vi)", "label": "PROVISION", "start_char": 35437, "end_char": 35449, "source": "regex", "metadata": {"statute": null}}, {"text": "Shirinbai", "label": "OTHER_PERSON", "start_char": 36049, "end_char": 36058, "source": "ner", "metadata": {"in_sentence": "In Shirinbai's case(') the assessee who held by way of investment several shares in different companies commenced a business in shares by converting the shares into stock-in; trade of the business."}}, {"text": "SUPREME COURT RllPORTS [1965]", "label": "COURT", "start_char": 37544, "end_char": 37573, "source": "ner", "metadata": {"in_sentence": "(') 24 I.T.R. 506,\n\n65-i SUPREME COURT RllPORTS [1965] 3 s.c.a."}}, {"text": "S. K. Das", "label": "JUDGE", "start_char": 37760, "end_char": 37769, "source": "ner", "metadata": {"in_sentence": "S. K. Das."}}, {"text": "Govin<lram", "label": "OTHER_PERSON", "start_char": 38208, "end_char": 38218, "source": "ner", "metadata": {"in_sentence": "It was at one time owned by Govin<lram and Bachhulal, and if the.", "canonical_name": "Govin<lram"}}, {"text": "Incometax Act, 1922", "label": "STATUTE", "start_char": 38246, "end_char": 38265, "source": "regex", "metadata": {}}, {"text": "Bachhu- Ia", "label": "OTHER_PERSON", "start_char": 39814, "end_char": 39824, "source": "ner", "metadata": {"in_sentence": "34 lakhs which was adopted for valuing Bachhu- Ia!", "canonical_name": "Bachhulal B"}}, {"text": "Bachhulal B", "label": "OTHER_PERSON", "start_char": 40202, "end_char": 40213, "source": "ner", "metadata": {"in_sentence": "I therefore answer the question as follows: G That depreciation allowance should be computed on the basis of JO /16th share of the original cost to the joint family of the assets which are admissible to depreciation allowance plus an appropriate amount attributable to the assets admissible to depreciation allowance on the footing that the value of 6/16th share of Bachhulal B in the factory was Rs.", "canonical_name": "Bachhulal B"}}]}
{"document_id": "1965_3_655_658_EN", "year": 1965, "text": "DEOKUER & ANR.\n\nSHEOPRASAD SINGH AND ORS.\n\nApril 8, 1965\n\n[A. K. SARKAR, M. H!DAYATULLAH AND RAGHUBAR DAYAL, JJ.)\n\nSpecific Relief Act (Act 1 of 1887), s. 42-Declaratory suit-Property in .dis]iiute' attached under s. 146 Criminal Procedre Code- Omission to sue for relief of possession whether bars suit.\n\nThere was dispute about the property in suit between the appellants and the respondents. The property was attached by the Magistrate under s. 145 of the Criminal Procedure Code. Subsequently the appellants filed a suit for declaration of their title to the property but made no prayer for the consequential relief of possession. The suit \"\"S decreed by the trial court but the High Court set aside the decree o!i the ground that the suit was bad under s. 42 of the Specific Relief Act for failure to sue for possession. Appeal to this Court was filed with certificate of fitness.\n\nHELD: In a suit for declaration of title to property, !\\led when it stands attached under s. 145 of the Criminal Procedure Code, it is not necessary to ask for the further relief of delivery of possession. The fact, if it be so, that in the case of such an attachment the Magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession, is irrelevant. [656H-657B]\n\nMoreover the further relief contemplated by the proviso to s 42 of the Specific Relief Act is relief against the defendant only.\n\nIn the present case the Magistrate was in possession and he was not a party to the suit. [657C-DJ\n\nFurther it is not necessary to ask for possession when the property is in cv, stodia legis. There is no doubt that property under attachment undev s. 145 of the Code is in cv, stodia legis. [657E]\n\nSunder Singh Ma!!ah Singh Sanatan Dharam High School, Trust G v. Managing Committee, Sunder Singh-MaUah Singh Rajput High\n\nSchool, (1937) L.R. 65 I.A. 106 and Nawab Humayim Begum v. NlbWab Shah Mohammad Khan, A.LR. 1943 P.C. 94, relied on.\n\nK. Sundarama Iyer v. Sarvajana Sowkiabi! Virdhi Nidhi Ltd.\n\nI.L.R. [1939) Mad. 986, approved.\n\nDukhan Ram v. Ram Nanda Singh, A.LR. 1961 Pat. 425, disapproyed.\n\nOvIL APP ELLA TE JurusmcrmN: Civil Appeal No. 329 of 1962.\n\nAppeal from the judgment and decree dated September 26, 1957 of the High Court in Appeal from Original Decree No. 253 of 1949.\n\nSarjoo Prasad and R.C. Prasad, for the appellants.\n\nA. V. Viswanatha Sastri and D. Goburdhun, for respondents nos. 1 to 4 and 6.\n\nThe Judgment of the Court was delivered by Sarkar, J. This appeal arises out of a suit brought by the appellants in 1947 for a declaration that the defendants first party B\n\nhad acquired no right or title to a property under rtain deeds and that the deeds were inoperative and void. The suit was decreed by the trial Court but on appeal by the defendants first party to the High Court at Patna that decree was set aside. The High Court having granted a certificate of fitness, the appellants have 0. brought the present appeal. The defendants first party have alone contested the appeal and will be referred to as the respondents.\n\nThe High Court held that as the appellants were not in possession of the property at the date of the suit as found by the learned trial Judge and the respondents were, their suit must fail under the proviso to s.42 of the Specific Relief Act as the appell> lants had failed to ask for the further relief of recovery of possession from the respondents. In this view of the matter the High Court did not consider the merits of the case. The fact however v1as that at the date of the suit the property was under attachment by a magistrate under powers conferred by s. 145 of the Code of g Criminal Procedure and was not in the possession of any party.\n\nThis fact was not noticed by the High Court but the reason why it escaped the High Court's attention does not appear on the record.\n\nThe only point argued in this appeal was whether in view of the attachment, the appellants could have in their suit asked for P the relief for delivery of possession to them. If they could not, the suit would not be hit by the proviso to s. 42. The parties seem not to dispute that in the case of an attachment under s. 146 of the Code as it stood before its amendment in 1955, a suit for a simple declaration of title without a prayer for delivery of possession is competent. The respondents contend that the position in G the case of an attachment under s. 145 of the Code is different, and in such a case the magistrate holds possession for the party who is ultimately found by him to have been in possession when the first order under the section was made. It was said that a suit for declaration of title pending such an attachment is incompetent under the proviso to s. 42 unless recovery of possession is al!; o ll asked for. It appears that the attachmn! under s. 145 in t!te p~ sent case is still continuing and no dec1s1on has yet been given m the proceeding's resulting in the attachment.\n\nIn our view, in a suit for declaration of title to property filed when it stands attached under s. 145 of the Code, it is nC1t necessary to ask for the further relief of delivery of possession. The fact\n\nDEOKUER v. SHEOPRASAD (Sarkar, J.)\n\n65T\n\nif it be so. that in the case of such an attachment, the magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession is, in our opinion, irrelevant. On the question however whether the magistrate actualiy does so or not, it is unnecessary to express any opinion in the present case.\n\nThe authoritie's clearly show that where the defendant is not in possession and not in a positior1 to deliver possession to the plaintiff it is not necessary for the plaintiff in a suit for a declarat; on of title to property to claim possession: see Sunder Singh Mal/ah Singh Sanatan Dharm High School, Trust\n\nv. Managing Committee, Sunder Singh-Mal!ah Singh Rajput High School.(')\n\nNow it is obvious that in the present case, the responde1 . .ts were not in possession after the attachment 2nd were net in a position to deliver possession to the appellants. The magistrate was in possession, for whomsoever. it does not matter, and he was not of co11rse a party to the suit. It is pertinent to observe that in Nawab Humayun Begam v. Nawab Shah Mohammad Khan(') it has been held that the further refaf contemplated by the proviso to s. 42 of the Specific Relief Act is relief against the defendant only. We may add that in K. Sundaresa Iyer v. Sarvajana Sc, wkiabil Virdhi Nidhi Ltd.('), it was held that it was not necessary to ask for possession when property was in custodia legis. There is no doubt that property under attachment under s. 145 of the Code is in custodia legis. These cases clearly establish that it was not necessary for the appellants to have asked for possession.\n\nIn Dukkan Ram v. Ram Nanda Singh(') a contrary view appears to have been taken. The reason given for this view is that the declaratory decree in favour of the plaintiff would not be binding on the magistrate and he was free inspite of it to find that possession at the relevant time was with the defendant and deliver possession to him. With great respect to the learned Judge deciding that case, the question is not whether a declaratory decree would be binding on the magistrate or not. The fact that\"it mav not be binding would not affect the competence of the suit. The G su; t for a declaration without a claim for the relief for possession would still be competent in the view taken in the cases earlier referred to, which is. that it is not necessary to ask for the relief of delivery of possession where the defendant is not in possession and is not able to deliver possession, which, it is not disputed, is ti e\n\nH case when the property is under attachment uncler s. 145 of the Coc!e. We think that Dukkan Ram's(') case had not been correctly decided. We may add that no other case taking that view was brought to Ol!r notice. ·\n\n( 1 ) (1937) LR. 66 I.A. 106.\n\n(') A.l.R. 1943 P.C. 94 (') I.LR. (1939) Mad. 986. (') A.I.R. 1961 Pot. 4,26.\n\nFor these reasons, we hold that the suit out of which this A\n\nppeal has arisen was competent. We, therefore, allow the appeal but as the merits of the case had not been gone into by the High Court, the matter must go back to that Court for decision on the merits. The appellant will get the costs here and below.\n\nAppeal allowed and case remanded.\n\n.4---.", "total_entities": 38, "entities": [{"text": "DEOKUER & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "DEOKUER & ANR", "offset_not_found": false}}, {"text": "SHEOPRASAD SINGH AND ORS", "label": "RESPONDENT", "start_char": 16, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "SHEOPRASAD SINGH AND ORS", "offset_not_found": false}}, {"text": "April 8, 1965", "label": "DATE", "start_char": 43, "end_char": 56, "source": "ner", "metadata": {"in_sentence": "April 8, 1965\n\n[A. K. SARKAR, M. H!DAYATULLAH AND RAGHUBAR DAYAL, JJ.)"}}, {"text": "A. K. SARKAR", "label": "JUDGE", "start_char": 59, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL, JJ.", "label": "JUDGE", "start_char": 93, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "Specific Relief Act", "label": "STATUTE", "start_char": 115, "end_char": 134, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 42", "label": "PROVISION", "start_char": 152, "end_char": 157, "source": "regex", "metadata": {"linked_statute_text": "Specific Relief Act", "statute": "Specific Relief Act"}}, {"text": "s. 146", "label": "PROVISION", "start_char": 214, "end_char": 220, "source": "regex", "metadata": {"linked_statute_text": "Specific Relief Act", "statute": "Specific Relief Act"}}, {"text": "Criminal Procedre Code", "label": "STATUTE", "start_char": 221, "end_char": 243, "source": "regex", "metadata": {}}, {"text": "s. 145", "label": "PROVISION", "start_char": 445, "end_char": 451, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedre Code", "statute": "Criminal Procedre Code"}}, {"text": "s. 42", "label": "PROVISION", "start_char": 758, "end_char": 763, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedre Code", "statute": "Criminal Procedre Code"}}, {"text": "Specific Relief Act", "label": "STATUTE", "start_char": 771, "end_char": 790, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 145", "label": "PROVISION", "start_char": 977, "end_char": 983, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedre Code", "statute": "Criminal Procedre Code"}}, {"text": "s 42", "label": "PROVISION", "start_char": 1350, "end_char": 1354, "source": "regex", "metadata": {"statute": null}}, {"text": "Specific Relief Act", "label": "STATUTE", "start_char": 1362, "end_char": 1381, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 145", "label": "PROVISION", "start_char": 1667, "end_char": 1673, "source": "regex", "metadata": {"statute": null}}, {"text": "(1937) L.R. 65 I.A. 106", "label": "CASE_CITATION", "start_char": 1849, "end_char": 1872, "source": "regex", "metadata": {}}, {"text": "OvIL APP ELLA TE JurusmcrmN", "label": "PETITIONER", "start_char": 2120, "end_char": 2147, "source": "ner", "metadata": {"in_sentence": "OvIL APP ELLA TE JurusmcrmN: Civil Appeal No."}}, {"text": "Sarjoo Prasad", "label": "LAWYER", "start_char": 2308, "end_char": 2321, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad and R.C. Prasad, for the appellants."}}, {"text": "R.C. Prasad", "label": "LAWYER", "start_char": 2326, "end_char": 2337, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad and R.C. Prasad, for the appellants."}}, {"text": "A. V. Viswanatha Sastri", "label": "LAWYER", "start_char": 2360, "end_char": 2383, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri and D. Goburdhun, for respondents nos."}}, {"text": "D. Goburdhun", "label": "LAWYER", "start_char": 2388, "end_char": 2400, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri and D. Goburdhun, for respondents nos."}}, {"text": "Sarkar", "label": "JUDGE", "start_char": 2481, "end_char": 2487, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sarkar, J. This appeal arises out of a suit brought by the appellants in 1947 for a declaration that the defendants first party B\n\nhad acquired no right or title to a property under rtain deeds and that the deeds were inoperative and void."}}, {"text": "s.42", "label": "PROVISION", "start_char": 3280, "end_char": 3284, "source": "regex", "metadata": {"statute": null}}, {"text": "Specific Relief Act", "label": "STATUTE", "start_char": 3292, "end_char": 3311, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 145", "label": "PROVISION", "start_char": 3632, "end_char": 3638, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 4091, "end_char": 4096, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 146", "label": "PROVISION", "start_char": 4170, "end_char": 4176, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 145", "label": "PROVISION", "start_char": 4409, "end_char": 4415, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 4726, "end_char": 4731, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 145", "label": "PROVISION", "start_char": 4822, "end_char": 4828, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 145", "label": "PROVISION", "start_char": 5050, "end_char": 5056, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 6360, "end_char": 6365, "source": "regex", "metadata": {"statute": null}}, {"text": "Specific Relief Act", "label": "STATUTE", "start_char": 6373, "end_char": 6392, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 145", "label": "PROVISION", "start_char": 6667, "end_char": 6673, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 145", "label": "PROVISION", "start_char": 7788, "end_char": 7794, "source": "regex", "metadata": {"statute": null}}, {"text": "Dukkan Ram", "label": "OTHER_PERSON", "start_char": 7823, "end_char": 7833, "source": "ner", "metadata": {"in_sentence": "We think that Dukkan Ram's(') case had not been correctly decided."}}, {"text": "(1937) LR. 66 I.A. 106", "label": "CASE_CITATION", "start_char": 7960, "end_char": 7982, "source": "regex", "metadata": {}}]}
{"document_id": "1965_3_659_664_EN", "year": 1965, "text": "COMMISSIONER OF INCOME-TAX, MADRAS\n\nv.\n\nMANAGING TRUSTEES, NAGORE DURGHA, NAGORE\n\nApril 8, 1965\n\n[K. SuBBA RAo. J.C. SHAH AND S.M. SIKRI, JJ.J\n\nWakf-Scheme for management of Muslim Wakf-Trustees called Nattamaiga-rs to manage wakf property-Surplus income to be dist-ributed _among beneficiaries of trust called kasupangudars aci'cling to definite shares-Income how to be assessed,...., Aw!icabi !itu of Indiian Income Tax Act, 1922(11 ()f 1922). s. 41.\n\nA scheme was settled in 1005 by the Madras High Court for the management of the income and properties of the Durgah consecrated to a saint in Tanjore District. Under the scheme the management of the properties of the Durgah was to be in the hands of eight trustees called Nattamaigars one of whom was to be elected by them as Managing Trustee. The net income of the trust was to be distributed among descendants of the foster son of the saint, called Kasupangudars, wh.ose definite shares were to be determined each year by a list prepared bv the Managing Trustee. For the assessment years 195~54 and 1954-55, the Income-tax Officer assessed the\n\ngu; rplus income of the wakf in the hands of the Managing Trustee as an association of persons. The trustees unsuccessfully app€'aied to the Appellate Assistant Commissioner and the Appellate Tribunal.\n\nThe controversy centred round the question whether s.41 of the Indian Income-true Act, 1922 awliecl to the case. In a reference made by the Tribunal at the instance of the assessee \"the High Court held that that s. 41 pplied to the case and that the income was received by the trustees on behalf of the beneficiaries. Aggrieved, the Commissioner of Income Tax appealed, by certificate, to this Court.\n\nrt was contended on behalf of the appellant that as the properties vested in the managing trustee and he received the income in his own right and not on behalf of the beneficiaries, though for their benefit, the said income in the hands of the managing trustee fell outside the scope of s.41 of the Act.\n\nHELD: The High Court had rightly answered the question in favour of tbe assessee.\n\n(i) The techn'ral doctrine of vesting is not imported into s. 41.\n\nThis is apparent from the fact that a trustee appointed under a trust deed is brought under the section though legally the property vests in him. In the case of a Muslim Wakf the property vests in the Almighty; even so the mutawallis are brought under the seetion Thus in some of the persons enumer:_ated in the section property vests and in others it does not. A reasonable interpr-etation of the section is that all categories of persons mentioned therein are deemed to receive them on behalf of another person or persons or manage the same for his or their benefit. None of them has any benefbal interest in the income; he collects the income for the benefit of others.\n\nIn this view even if the N attamaigars were trustees in whom the\n\n660 [lllUJj :l ~.C.J\\.\n\n:Properties of the Durgah vested, they should be deemed to have\n\nA.. received the income only on behalf of the Kasupanaudars in definite shares. [662G-663B]\n\n(ii) The mutawalli of a Muslim Wald is merely a manager and not a \"trustee\" as understood in the English system. (663E] Vidya Varuthi Thirtha v. Balusami Ayyar. (1921) 48 I.A. 32 and Al!ah Rakhi v. Mohammad Abdur Rahim, (1933) 61 I.A. 50, relied on.\n\nTherefore in terms of s.41 of the Act the Nattamaigars were the manager of the properties on behalf of other and WeTe entitled to receive the income therefrom on behalf of them. [663G-H]\n\n(iii) Under cl.3 of the scheme it was the \"management and administration\" of the Durgah and its properties which was vested in the Nattamaiga1& and not the properties themselves. In the absence .of clear words it could not be held that the High Court in framing C a scheme for the endowments of the Durgah had introduced a foreign concept of \"trust\" in derogation of Mohammadan Law. The scheme therefore did not vest the properties of the Durgah in the Nattamalgars and the contention on behalf of the &venue could not succeed. [664D, El\n\nav1L AP PELLA TE JURISDICTION: Civil Appeals Nos. 213 and D 214 of 64.\n\nAppeals from the judgment and order dated April 4, 1961. of the Madras High Court in Case Referred No. 130 of 1956.\n\nNiren De, Additional Solicitor-General R. Ganapathy Iyer E and R. N. Sachthey, for the appellants (in both the appeals.)\n\nA. V. Vishwanatha Stistri, M. M. Ismail and R. Gopalakrishnan, for the respondent in both the appeals.\n\nThe Judgment of the Court was delivered. by\n\nSobba Rao, J. In the town of Nagore in Tanjore District, Madras State, there is a Durgha consecrated to Hazerath Sayed Shahul Hameed Quadir Ali Ganja Savoy Andavar, who Jived some\n\n400 years ago. The said Durgha receives large income from immovable properties endowed to it and the offerings in cash and kind made by the devotees. The Durgha and its properties are now G being administered under a scheme settled by the Madras High Court on March 16, 1955. Under the scheme the management of the administration of the affairs of the said Durgha vests hereditarily in 8 trustees called Nattamaigars, who constitute a board of trustees. The said board of trustees shall from among themselves elect one as a managing trustee and he shall hold office for a term H. of 3 years. The managing trustee shall at the end of each fasli prepare a balance-sheet verified by the manager and ascertain the net amount available for paymen, t to kasupangudars, who are the descendants of Saiyed Muhammed Eusoof, the foster son of the saint. The Managing Trustee shall declare the amount due to each of the kasupangu (share) and shall allocate the amount to each kasupangudar (sharer) in the list to be prepared for that purpose\n\nc.I.T. v. DURGHA TRUSTEES (Subba Rao, J.) 661\n\nin each year. He shall pay the amount to each kampangudar in accordance with the fat. It is said that at present there are 640 kasupangudars. Briefly stated. under the scheme the management of the properties of the Durgha, both movable and immovable, vests in Nattamaigars, and the kasupangudars are entitled to the surplus in accordance with their shares.\n\nFor the assessment years 1953-54 and 1954-55 the Income-tax Officer assessed the surplus income in the hands of the Managing Trustee as an association of persons. The Appellate Assistant Com: missioner, on appeal, confirmed the same. On further appeal, the Income-tax Appellate Tribunal took the same view. At the instance of the assessee, the Tribunal submitted the following question for the opinion of the High Court of Madras under s.66(1) of the Income-tax Act, 1922, hereinafter called the Act:\n\n\"Whether the prov; sions of Section 41 can be said to apply to the assessees in this case.\"\n\nA Division Bench of the High Court, which heard the reference. held that the Managing Trustee qua the surplus income managed the property and derived the income on behalf of the kasupangudars and that the assessment should be made on the said Managing Trustee to the extent of the interest of each of the kasupangudars in the income received oy him. In the result it answered the question in the affirmative and in favour of the assessee. The Commissioner of Income-tex, Madras, on a certificate of fitness granted by the High Court, has preferred the present appeals against the said Order.\n\nThe learned Additional Solicitor General, appearing for the Revenue, contended that the Natmaigars being trustees, the properties of the Durgha vested in them and, therefore, they or the Managing Trustee administered the trust properties in their own right and not on behalf of the kasupangudars and hence s.41 of the Act did not apply, with the result the Income-tax Officer had G rightly assessed the surplus income in the hands of the trustees as an association of persons.\n\n:a:\n\nMr. A. V. Viswanatha Sastri. learned counsel for the assesseerespondent. argued, on the other hand, that the Na[tamaigars of the Durgha were not trustees as understood in the law of trust but were only managers managing the properties on behalf of the Durgha and kasupangudars. On that assumption, his argument proceeded. as the Nattamaigars, as managers, held the surplus on behalf of the kasupangudars for distribution in definite shares. s.4 l of the\n\nA.ct was attracted.\n\nAt the outset we may make it clear that in this appeal we are concerned only with the surplus remaining on hand with the Nattamaigars after meeting the expenses of the Durgha.\n\nThe problem presented in these appeals falls to be decided on A a true construction of s.41 of the Act. The material part of •.41 reads:\n\n(!) In the case of income, profits or gain chargeable under this Act, which the Courts of Wards, the Administrators-General, the Official Trustees or any receiver or manager (including any person whatever his designation who in fact manages property on behalf of another) appointed by or under any order of a Court, or any trustee or trustees appointed under a trust declared by a duly executed instrument in writing whether testamentary or 'otherwise (including the trustee or trustees under any Wakf deed which is valid under the Mussalman Wakf Validating Act, 1913), are entitled to receive on benalf of any person, the tax shall be levied upon and recoverable from such Court of Wards, Administrators- General, Official Trustee, receiver or manager or trustee or trustees. in the like manner and to the. same amount as it would be. leviable upon and recoverable from the person on whose behalf such income, profits or gains are receivable, and all the provisions of this Act shall apply accordingly.\n\nUnder this section the income of p; roperties receivable by\n\nthe enumerated persons for the benefit of others is liable to be E assessed to tax in their hands in the like manner and to the same amount as it would be leviable upon and recoverable from the person or persons on whose behalf such income .is receivable. This section centres on the basic fact that the person in whose hands the income is assessable shall be entitled to receive the same on behalf of any person; if he is not so entitled, the provisions of the F section cannot be invoked. So. it is contended that, as the properties vested in the managing trustee and he received the income in his own right and not on behalf of the beneficiaries, though for their benefit,. the said income in the hands of the managing trustee fell outside the scope of s.41 of the Act.\n\nThere are two answers to this contention. The doctrine of G vesting is not germane to this contention. In some of the enumerated persons in the section the property vests and in others it does not vest, .but they only manage the property. In geneql law the property does not vest in a receiver or manager but it vests in a trustee, but both trustees and receivers are included in s.41 of the iAct. The common thread that passes through all of them is that B they function legally or factually for others: they manage the property for the benefit of others. That the technical doctrine of vesting is not imported in the section is apparent from the fact that a trustee appo'nted under a trust deed is brought under the section though legally the property vests in him. In the case of a Muslim Wakf the property vests in the Almighty; even so the mutawallis are brought under the section. A reasonable interpretation of the\n\nC.I.T. v. DURGllA TRUSTEES (Subba Rao, J.) 663\n\nA section is that all the categories of persons mentioned therein are\n\ndeemed to receive the mcome on behalf of another person orpersons or manage the same for his or their benefit. None of them has any beneficial interest in the income; he collects the income for the benefit of others. In this view, even if the Nattamaigars were trustees in whom the properties of the Durgha vested, they should B be deemed to have received the income only on behalf of the kasu\n\npangudars in definite shares.\n\nThe same conclusion will be reached even if the problem was approached from a different angle. In the well-known decision of C the Privy Council in Vidya Varuthi Thirtha v. Balusami Ayyar(')\n\nthe inappropriateness of the use of the expression \"trustee\" to the maLager of a Hindu or Mahommedan religious endowments was brought out Therein their Lordships observed :\n\n\"Neither under the Hindu Law nor in the Mahommedan system is any proprty \"conveyed\" to a shebait or a mutawalli, in the case of a dedication. Nor is any property vested in him; whatever property he holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage. Under the Mahommedan Law, the moment a wakf is created all rights of property pass out of the wakf, and vest in God Almighty. The curator, whether called mutawalli or saijadanishin, or by any other name, is merely a manager.\n\nHe is certainly not a \"trustee\" as understood in the English system.\"\n\nF The Privy Council, in the coptext of a wakf property, reaffirmed the said observations, in Allah Rakhi v. Mohammad Abdur Rahim('). The effect of the s:i.id decisions is that Nattamaigars are only the managers of the properties in which the Durgha and the kasupangudars have beneficial interests. The properties do not vest in them. They receive the income therefrom on beh'alf of both G of them. After meeting the expenses of the Durgha they hold the balance on behalf of the kasupangudars and distribute the same in accordance with their shares. In this view, in 'terms of s. 41 of the Act the N attamaigats are the managers of the properties on behalf of others and are entitled to receive the income therefrom orr behaif of them. With the result, the income which they hold on H behalf of the kasupangudars can be assessed only in. their hand&\n\nin the manner prescribed thereunder. But it is said that whatever may the doctrine of Hindu or Mohammadan law, under the terms of the aforesaid scheme the properties vested in the Nattam.aigars and, therefore, they receive the income in their own right and not on behalf of the kasupangudars. A careful reading of the relevant\n\n(')(1921) L.R. 48 I.A. 302, 315.\n\n(') (1933) L.R. 61. I. A. 50.\n\npart of the schame does not countenance this argument. Clause 3 A of the scheme. which is the material clause, reads:\n\n\"The management and administration of the affairs of the Nagore Durgha at Nagore, Tanjore District, and other thakias :and shrines connected therewith (mentioned in Schedule A hereunder) and all properties-movables and 'immovables-which belong to or have been or may hereafter be given. dedicated, endowed thereto, shall subject to the provisions thereof vest hereditarily in the eighr\n\ntrustees or nattamaigars of the Durgha who shall constitute the Bmrd of Trustees. Each trustee or nattamaigar is entitled to hold office for life, and after him the trusteeship shall devolve on his next male heir in accordance with the custcm prevailing in respect of such office in the Durgha.\"\n\nUnder this clause the management and adminhtration of the Nagore Durgha and its properties vest in the N attamaigars. What vests in the Nattamaigars is not the properties of the Durgha but D the management and administration thereof. Unless the words are clear we are not prepared to hold that the High Court in framing a scheme for the endowments of the Durgha had introduced a foreign concept of \"trust\" in derogation of Mohammadan law.\n\nWe, therefore, hold that the scheme did not vest the properties of the Durgha in the Nattamaigars.\n\n, Lastly, a faint argument was raised to the effect that under the scheme the managing trustee was not appointed under any order of a Court but was appointed by an agreement among the trustees. But in cl. 4 of the scheme the High Court gave a specific direction that the managing trustee shall be elected from among F the Board of Trustees. The Managing Trustee elected was certainly appointed under an order of a Court, for the election was held pursuant to the order of the Court. That apart, in the view we have taken, namely, that the Nattamaigars are not trustees in the English sense of the term, this question does not arise for consideration.\n\nIn the result. we hold that the High Court has rightly answered the question referred to it in the affirmative and in favour of the assessee. The appeals fail and are dismissed with costs. One hearing fee.\n\nAppeals dismissed.", "total_entities": 46, "entities": [{"text": "COMMISSIONER OF INCOME-TAX, MADRAS", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, MADRAS", "offset_not_found": false}}, {"text": "MANAGING TRUSTEES, NAGORE DURGHA, NAGORE", "label": "RESPONDENT", "start_char": 40, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "MANAGING TRUSTEES, NAGORE DURGHA, NAGORE", "offset_not_found": false}}, {"text": "April 8, 1965", "label": "DATE", "start_char": 82, "end_char": 95, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF INCOME-TAX, MADRAS\n\nv.\n\nMANAGING TRUSTEES, NAGORE DURGHA, NAGORE\n\nApril 8, 1965\n\n[K. SuBBA RAo."}}, {"text": "K. SuBBA RAo", "label": "JUDGE", "start_char": 98, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 114, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S.M. SIKRI, JJ", "label": "JUDGE", "start_char": 126, "end_char": 140, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Indiian Income Tax Act, 1922", "label": "STATUTE", "start_char": 403, "end_char": 431, "source": "regex", "metadata": {}}, {"text": "s. 41", "label": "PROVISION", "start_char": 446, "end_char": 451, "source": "regex", "metadata": {"linked_statute_text": "Indiian Income Tax Act, 1922", "statute": "Indiian Income Tax Act, 1922"}}, {"text": "Tanjore District", "label": "GPE", "start_char": 596, "end_char": 612, "source": "ner", "metadata": {"in_sentence": "A scheme was settled in 1005 by the Madras High Court for the management of the income and properties of the Durgah consecrated to a saint in Tanjore District."}}, {"text": "Durgah", "label": "OTHER_PERSON", "start_char": 671, "end_char": 677, "source": "ner", "metadata": {"in_sentence": "Under the scheme the management of the properties of the Durgah was to be in the hands of eight trustees called Nattamaigars one of whom was to be elected by them as Managing Trustee.", "canonical_name": "Durgah"}}, {"text": "s.41", "label": "PROVISION", "start_char": 1355, "end_char": 1359, "source": "regex", "metadata": {"linked_statute_text": "Indiian Income Tax Act, 1922", "statute": "Indiian Income Tax Act, 1922"}}, {"text": "Indian Income-true Act, 1922", "label": "STATUTE", "start_char": 1367, "end_char": 1395, "source": "regex", "metadata": {}}, {"text": "s. 41", "label": "PROVISION", "start_char": 1516, "end_char": 1521, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-true Act, 1922", "statute": "the Indian Income-true Act, 1922"}}, {"text": "s.41", "label": "PROVISION", "start_char": 1993, "end_char": 1997, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-true Act, 1922", "statute": "the Indian Income-true Act, 1922"}}, {"text": "s. 41", "label": "PROVISION", "start_char": 2153, "end_char": 2158, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-true Act, 1922", "statute": "the Indian Income-true Act, 1922"}}, {"text": "s.41", "label": "PROVISION", "start_char": 3356, "end_char": 3360, "source": "regex", "metadata": {"statute": null}}, {"text": "cl.3", "label": "PROVISION", "start_char": 3534, "end_char": 3538, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 4197, "end_char": 4214, "source": "ner", "metadata": {"in_sentence": "of the Madras High Court in Case Referred No."}}, {"text": "Niren De", "label": "OTHER_PERSON", "start_char": 4250, "end_char": 4258, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General R. Ganapathy Iyer E and R. N. Sachthey, for the appellants (in both the appeals.)"}}, {"text": "R. Ganapathy Iyer", "label": "OTHER_PERSON", "start_char": 4289, "end_char": 4306, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General R. Ganapathy Iyer E and R. N. Sachthey, for the appellants (in both the appeals.)"}}, {"text": "R. N. Sachthey", "label": "OTHER_PERSON", "start_char": 4313, "end_char": 4327, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General R. Ganapathy Iyer E and R. N. Sachthey, for the appellants (in both the appeals.)"}}, {"text": "A. V. Vishwanatha Stistri", "label": "OTHER_PERSON", "start_char": 4372, "end_char": 4397, "source": "ner", "metadata": {"in_sentence": "A. V. Vishwanatha Stistri, M. M. Ismail and R. Gopalakrishnan, for the respondent in both the appeals.", "canonical_name": "A. V. Vishwanatha Stistri"}}, {"text": "M. M. Ismail", "label": "OTHER_PERSON", "start_char": 4399, "end_char": 4411, "source": "ner", "metadata": {"in_sentence": "A. V. Vishwanatha Stistri, M. M. Ismail and R. Gopalakrishnan, for the respondent in both the appeals."}}, {"text": "R. Gopalakrishnan", "label": "OTHER_PERSON", "start_char": 4416, "end_char": 4433, "source": "ner", "metadata": {"in_sentence": "A. V. Vishwanatha Stistri, M. M. Ismail and R. Gopalakrishnan, for the respondent in both the appeals."}}, {"text": "Sobba Rao", "label": "JUDGE", "start_char": 4521, "end_char": 4530, "source": "ner", "metadata": {"in_sentence": "by\n\nSobba Rao, J. In the town of Nagore in Tanjore District, Madras State, there is a Durgha consecrated to Hazerath Sayed Shahul Hameed Quadir Ali Ganja Savoy Andavar, who Jived some\n\n400 years ago.", "canonical_name": "Sobba Rao"}}, {"text": "Madras State", "label": "GPE", "start_char": 4578, "end_char": 4590, "source": "ner", "metadata": {"in_sentence": "by\n\nSobba Rao, J. In the town of Nagore in Tanjore District, Madras State, there is a Durgha consecrated to Hazerath Sayed Shahul Hameed Quadir Ali Ganja Savoy Andavar, who Jived some\n\n400 years ago."}}, {"text": "March 16, 1955", "label": "DATE", "start_char": 4962, "end_char": 4976, "source": "ner", "metadata": {"in_sentence": "The Durgha and its properties are now G being administered under a scheme settled by the Madras High Court on March 16, 1955."}}, {"text": "Saiyed Muhammed Eusoof", "label": "OTHER_PERSON", "start_char": 5492, "end_char": 5514, "source": "ner", "metadata": {"in_sentence": "The managing trustee shall at the end of each fasli prepare a balance-sheet verified by the manager and ascertain the net amount available for paymen, t to kasupangudars, who are the descendants of Saiyed Muhammed Eusoof, the foster son of the saint."}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 6547, "end_char": 6567, "source": "ner", "metadata": {"in_sentence": "At the instance of the assessee, the Tribunal submitted the following question for the opinion of the High Court of Madras under s.66(1) of the Income-tax Act, 1922, hereinafter called the Act:\n\n\"Whether the prov; sions of Section 41 can be said to apply to the assessees in this case.\""}}, {"text": "s.66(1)", "label": "PROVISION", "start_char": 6574, "end_char": 6581, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 6589, "end_char": 6609, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 41", "label": "PROVISION", "start_char": 6668, "end_char": 6678, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Madras", "label": "GPE", "start_char": 7204, "end_char": 7210, "source": "ner", "metadata": {"in_sentence": "The Commissioner of Income-tex, Madras, on a certificate of fitness granted by the High Court, has preferred the present appeals against the said Order."}}, {"text": "s.41", "label": "PROVISION", "start_char": 7632, "end_char": 7636, "source": "regex", "metadata": {"statute": null}}, {"text": "A. V. Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 7813, "end_char": 7836, "source": "ner", "metadata": {"in_sentence": ":a:\n\nMr. A. V. Viswanatha Sastri.", "canonical_name": "A. V. Vishwanatha Stistri"}}, {"text": "s.4", "label": "PROVISION", "start_char": 8250, "end_char": 8253, "source": "regex", "metadata": {"statute": null}}, {"text": "s.41", "label": "PROVISION", "start_char": 8549, "end_char": 8553, "source": "regex", "metadata": {"statute": null}}, {"text": "Wakf deed which is valid under the Mussalman Wakf Validating Act, 1913", "label": "STATUTE", "start_char": 9097, "end_char": 9167, "source": "regex", "metadata": {}}, {"text": "s.41", "label": "PROVISION", "start_char": 10422, "end_char": 10426, "source": "regex", "metadata": {"statute": null}}, {"text": "s.41", "label": "PROVISION", "start_char": 10820, "end_char": 10824, "source": "regex", "metadata": {"statute": null}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 11391, "end_char": 11400, "source": "ner", "metadata": {"in_sentence": "A reasonable interpretation of the\n\nC.I.T. v. DURGllA TRUSTEES (Subba Rao, J.) 663\n\nA section is that all the categories of persons mentioned therein are\n\ndeemed to receive the mcome on behalf of another person orpersons or manage the same for his or their benefit.", "canonical_name": "Sobba Rao"}}, {"text": "s. 41", "label": "PROVISION", "start_char": 13468, "end_char": 13473, "source": "regex", "metadata": {"statute": null}}, {"text": "(1921) L.R. 48 I.A. 302", "label": "CASE_CITATION", "start_char": 14073, "end_char": 14096, "source": "regex", "metadata": {}}, {"text": "Clause 3", "label": "PROVISION", "start_char": 14190, "end_char": 14198, "source": "regex", "metadata": {"statute": null}}, {"text": "Durgha", "label": "OTHER_PERSON", "start_char": 15449, "end_char": 15455, "source": "ner", "metadata": {"in_sentence": "We, therefore, hold that the scheme did not vest the properties of the Durgha in the Nattamaigars.", "canonical_name": "Durgah"}}, {"text": "cl. 4", "label": "PROVISION", "start_char": 15679, "end_char": 15684, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_665_678_EN", "year": 1965, "text": "DAMJI V ALJI SHAH AND ANOTHER\n\nLIFE INSURANCE CORPORATION OF INDIA & ORS.\n\nB April 8, 1965.\n\n[P. B. GAJENDRAGADKAR, C. J., M. HIDAYATULLAH,\n\nRAGHUBAR DAYAL AND V.\" RAMASWAMI. JJ.J\n\nLife Insurance Corporation Act, 1956, ss. 15 .and 44(a)-Indian Companies Act, 1956, ss. 446(1 )-Application by Life Insurance Corporation under s. 15 of L.I.C. Act-Defendant company ordered to be wound.up by court--..:Permission of High Court under s. 446(1). of Companies Act whether necessary for proceeding with application under s. 15.\n\nIndian Insurance Act, 1938 s. )(}-Transfer of Funds from Life Insurance Fund to General Department of composiite 1nsurer-Per- 1nissibility.\n\nThe appellants were directors of an insurance company which was a composite insurer i.e. Qne carrying on other classes of ~1fe insurance business besides life insurance. Under s. 10(1) of the Indian Life Insurance Act, 1938, a composite insurer had to keep sepaate\n\naccounts in respect of the different classes of business, and its receipts in respect of life insurance business had to &:o into a fund called the Life Insurance Fund which could be appl!ed only for the purposes of the Life Insurance business and had always. to be sufficient to meet the net .liabilities of the Life Insurance busmess. By resolution dated December 18, 1948, a sum of Rs. 1,10,000 was transferred from the General Department of the company to the Life Department to be added to the Life Fund; if this had not been done the said fund would have shown a deficit in the actuarial valuation report dated July' 18, 1949. In the profit appropriation account of the company for the latter year a sum of Rs. 60,000 out of the above sum was written off so that the sum advanced was reduced to Rs. 50,000. A further sum of Rs. 32,000 was again similarly transferred from the General to the Life Department by resolution passed in August 1953 with retrospective effect from December 31, 1952, in order to strengthen the position of the Life Fund which again would have shown a deficit if this had not been done. The advances thus made on both occasions were according to the relevant resolutions repayable only out of the 'valuation surplus', if any, in the life department. On January 8, 1956, the Board of Directors of the company transferred a sum of Rs. 82,000 from the Life Department to the General Department. by way of repayment of the above loans.\n\nOn January 19, 1956, by Ordinance No. 1 of 1956 the management of the life insurance business of all insurers in the country passed to the Central Government. On September 1, 1956, the Life Insurance Corporation of India came into being under the Life Insurance Corporation Act, 1956, and the assets and liabilities of the life insurance business carried on by all insurers became ·., rested in it. The corporation filed an application under s. 15 of the said Act before the Tribunal constitµted under the Act allegin!i' that transfer of Rs. 82,000 from the Life Department to the General Department of the aforesaid company was without consideration and not for any 665\n\nSUPREME COURT REPORT8 [!96fi] 3 s.c.R.\n\nnecessity of the life insurance business and prayed for a decree A against appellants and the company jointly and severally for the said amount. The Tribunal overruled the defendants' objections as to its jurisdiction and granted a decree to the Corporation as prayed. The company did not appeal but the appellants came to this Court by special leave.\n\nThe following COI\\tentions were raised on behalf of the appel- B !ants; (1) The tribunal had no jurisdiction to proceed with the proceedings on the petition presented by the Corporation without the leave of the High Court in .view of s. 446 of the Companies Act, 1956, the Company having been ordered to be wound up the High Court\n\non November 9, 1959; (2) In view of s. 44(a) of the L.I.C. Act noi..; of the provisions of the Act applied to the company and therefore the Tribunal could not proceed on the application of the CorPora- C tion subsequent to the company being: wound-up; (3) The transfer of Rs. 82,000 from the Life Fund to the General Department of the company was for corisic\\eration and was necessary for the life insurance business.\n\nHELD: (i) The provisions of s. 446 of the Companie.> Act did not affect the proceedings before the Tribunal.\n\nIt is in view of the exclusive jurisdiction conferred upon the company court in sub-s. (2) of s. 446 of the Companies Act to entertain and dispose of any suit or proceeding by or against a company which is being wound•up that provision has been made in sub-\n\ns. (1) of that section that no suit or proceeding shall be filed, or if pending, proceeded with against such a company without permission having been taken from the Court. In view of the provision in s. 41 E of the L.LC. Act the company court has no jurisdiction to try matters which a Tribunal under the Companies Act is empowered to entertain and decide. It could not be disputed that the Tribunal was empowered to try the Corporation's application under s. 15 and the Company Court tiherefore had no jurisdiction to entertain or decide it. It must follow that the consequential provision of sub-s. (1) of s. 446 would not operate on the proceedings before the Tribunal.\n\n[673E-GJ F\n\nFurther, the provisions of the Special Act i.e. the L.I.C. Act will over-ride the provisions of the general Act viz. the Companies Act which is an Act relating( to companies in general. [673H]\n\n(ii) The company could not take advantage of the provisions of s. 44(a) of the L.I.C. Act. [674D-EJ\n\nSection 44(a) provides that the provisions of the Act will not apply to an insurer whose business is being wound-up under orders of court. But the question of the applicability of the Act to a particular insurer is to be considered in relation to facts existing at the time when the Ac~ came into force i.e. July l, 1956 or on the appointed day, i.e. September I. 1956, when the assets and liabilities of the contr.olled insurer of the company stood transferred and vested in H the Corporation. The company was not being wound-up under orders of Court on the above dates. The L.I.C. Act and therefore s. 41 thereof did apply to the company. It could not cease to apply merely because subsequently the company was ordered to be wound-up. [673H-674B]\n\nSection >M(a) was not applicable to the company for the further reason that when it was ordered to be wound-up in 1959 it was not an 'insurer' within the meaning of that word in. s. 2(6) since it was not carryine on life insurance business on that date. the said busi-\n\n- '\n\n6G7\n\n'appoin~d ness having be~D. ', taken over day. [674C-D] .\n\n-----~---~-~ -----\n\n(iii) The Tribunal rightly passed a decree in favour of the Corporation. 1\n\nNo question of lending money by. one department of the com pan;· to the other can ordinarily be contemplated. The assets of the . cmnpany really constitute one entity evn though the company maintains separate accounts with respect to its various insurance businesses. From. the facts it was clear that the amounts of Rs. 1,10.000 and Rs. 32,000 had been transferred from the General Department to the Life Fund to meet the deficit in the Life Fund which was likely to occur on both occasions. The circumstances showed that the sum of Rs. 82,000 was transferred back to the General Department in a hurry in anticipation of some law depriving the \\.'.'ompany of -its life insurance business. It was moreover a condition of the alleged 'loans' that they would be repaid only when there was a 'valuation surplus' in the Life Fund. There was no such surplus in the-\n\nLi1~ Fund at the time when the sum .was transferred from it to-· the General Department. [674G]\n\nSUPREME COURT REPORTS [1965] 3 s.c.:a.\n\nThe facts of the case briefly are these. 'Fhe company was a A composite irtsurer, i.e., an insurer who carried on, in. addition to lite insurance business, other classes of insurarlce business. The LIC Act came into force on July. I. 1956 and the Corporation was established on September 1, 19§6 which was the \"appointed day'\n\ncording to s. 2([) of that Act. On that day. in view of s. 7, all tne' assets and liabilities appertaining tG the life insurance business Ir (called the controlled business, vide s. 2(3)) of the Company stood transferred to and vested in the Corporation. It was found that certain amounts which had been transferred from the' Life Insurance Fund in the books of the company to the General Department had not been transferred in accordance with the provisions C of the Insurance Act 1938 (Act 4 of 1938) \\\\lhich governed the company and shoµld have continued to be included in the assets appertaining to the controlled business of th!' company. It was , therefore tl)at an application under s. 15 of the.LTC Act was made by the Corporation to the Tribunal. •\n\nWe may now state how this amount of Rs. 82.000/- happened D to be transferred from the Life Insurance Fund (or fhe Life Fundl cf the company to its General Department. The .company had .to 'keep separate accounts pf all receipts\" 'and payments in respect of each class of insurance business, in v!ew of s. \"10(1) of the Insurance Act. It had to maintain a Life Fund in connection with its life insurance business in view of s:'-10.QJ. Sub-s. (2) provided thal E where an insurer carried on business of life insurance, all receipts due in respect, of such business be carried to and would form a separate fund called the Life Insurance Fund and its assets be/ kepl distinct and separate from all other assets of the insurer and deposits made by the insurer in respect of life insurance business.\n\nSub-s.- (3) of s. 10 pi:ovided that the life insurance fund would be as absolutely t, he security of the life policy holders as though it belonged to an insurer carrying on no other.business than life insurance business and\" that it should not be applied directly or in- . directly for any purpose other than those of the life insurance business of the insurer. The amount in this fund had to be sufficient to meet the net liabiiitie's in regard to the life insurance policies issued by the company. If it was not so maintained. the company stood the chance of being barred from carrying on life insurance business.\n\nBy resolution dated December 18. 1948, Rs. Ll0.000/- were H transferred from the General Department to the Life Department as advance to the- Life -Department Revenue Account for being added to the Lify Fund. subject to the condition that the Life Dcrartment would not be liable kl pay any interest thereon and\n\ntht no repayment of the Jc.an would be made except out of the valuation surplus of the Life Department. The first actuarial valuation report of the company for the year 1944--.-48, dated July 18,\n\n....,~...,...--\n\nDAMJI VALJI 'V, L.I.C. (Dayal, J,) 669\n\n1949, showed that the net liability of the company was Rs, 6,55,718 and that the amount in the Life Fund was Rs. 6,57,4501and therefore the fund showed a surplus of Rs. 1,732/- over the net liabilities. If the sum of Rs. 1,10,000/- had not been transferred to the Life Department Revenue Account prior to Dece~\n\nber 31, 1948, this valuation report would have shown the net hab1lity exceeding the amount in the life fund by about a . lakh of rupees, It is clear that the amount as, so transferrd m ord.er to avoid the consequences of the net hab1httes exceedmg the Life Fund.\n\nThe Profit & Loss Appropriation Account for the year 1949 shows that Rs. 60,000 /- out of this amount of Rs. l, 10,000 /- was written off as the company had made profits. Rs, 32,000 Iwere again similarly transferred to the Life Fund from the General Department with retrospective effect from December 31, 1952 in order to strengthen the position of the Life Fund,\n\nThe second actuarial valuation report for the period 1949-- 52, dated September 9, 1953, showed that the policy liability amounted to Rs, 15,36,068, that the Life Fund stood at Rs, 15,35,890/- and that thus the Life Fund exceded the net liabi• lity by Rs. 2,822 /-. There was thus a surplus as Rs, 32,000 /- had been transferred to strengthen the Life Fund, with retrospective effect in view of the resolution dated August 20, 1953 whicb\n\nrads:\n\n\"Resolved that a lean of Rs, 32,000 /- (thirty two thousand only) bearing no interest be hereby given to Life Department by General Department with retrospective effect as on 3 lst December 1952, the repayment of which shall be made only out of the future Valuation Surplus or surpluses of the Life Department or it may be written off from the future profits of the General Department This will have effect in the accounts of the Company for the year ended 31st December 1952,\"\n\nIt is to be noted that this resolution itself said that the amount would be repaid only out of the future Valuation Surplus or surpluses of the Life Departtnent or might be written off from the future profits of the General Department\n\nIt was this amount of Rs. 82,000/- (Rs. 50,000/- plus Rs. 32,000/-) which, by a resolution dated January 6, 1956 was transferred to the General Department from the Life Fund, The resolution reads: -\n\n\"Resolved that a loan of Rs. 82,000 /- (eighty two thousand only) advanced to Life Depaxtment Revei; me Ac-' count by General Department be and is hereby repaid to General Department and the balance of Rs, 60,000 /-\n\n670 BUl'REMK COURT REPOll'fS [1965] 3 s.c.11.\n\ndue to Gen-era! Department by Life Department Revenue A Account be and is hereby kept in reserve for future and hence no adjustment in regard to Rs. 60,000/- will be made for the present.\"\n\nThis resolution was confirmed by the Board of Directors at its meeting dated February 6, 1956.\n\nWe may now refer to the changes in law with respect to life insurance business in 1956 and an anticipation of which probahly led to the resolution of January 6, 1956. On January 19, 1956, the Life Insurance (Emergency Provisions) Ordinance, 1?56 (Ord. No.- I of 1956) was promulgated by the President. It came into force C from that day which was called the 'appointed day'. Section 3(1) provided that the management of the 'controlled business' of all insurers would vest in the Central Government on and from the appointed day. 'Controlled business', according to cl. (2) of s. 2, meant all the business appertaining to the life insurance business, if the insurer carried on any other class of insurance business also. D Clause (b) of sub-s. (3) prohibited the incurring of any expenditure by the insurer without the previous approval of the person specified by the Central Government in that behalf, from the assets appertaining to the controlled business otherwise than for the purpJse of making routine payments etc., specified in that clause. E : hosepurposes do not include the repayment of an advance made from the General Department to . the Life Fund or to the Life Department Revenue Account. Clause (c) of sub-s. (3) further prohibited the insurer, without the previous approval of the authorised person, to transfer or otherwise dispose of any such assets appertaining. to the controlled business oi create any charge or hypothe- F cation, lien or other encumbrance thereon. It would therefore appear that possibly the Board of Dir.ectors were not right in confirming the resolution of January 6, 1959 after the Ordinance had come into force. However, that is not the point raised in these proceedings.\n\nWe have already referred to the coming into force of the LIC G\n\nAct on July l. 1956 and of the transfer and vesting in the Corporation of al! the assets and the liabilities pertaining to the life insurance business in view of s. 7 of that Act. Section 15 provides that ihe Corporation may appcy for relief to the Tribunal in respect of a transaction which is made by the insurer whose controlled B business had been transferred to and vested in the Corporation under the Act at any time within 5 years before January 19, 1956 and by which the composite insurer has transferred any property from his life department to his general department without consideration or for an inadequate consideration and the transfer was not reasonably necessary for the purpose of the conttalled 1'usiness of the insurer or was made with an unreasonable lack of prudence\n\nDAMJI VAI, JI v. L.I.C. (Dayal, J.) 671\n\non the part of the. insurer regar<l being had in either case to. the circumstances at the time. The Corporation, in such proceedmgs, had to make all parties to the transaction parties to the application.\n\nSub-s. (2) of s. 15 empowered the Tribunalto make such order against any of the parties to the application as t thought just having regard to the extent to which those parties we'.e respectively responsible for the transactio~ or benefite? from 1t and all the circumstances of the case. Section 16 provided for the payment of compensation to the insurer whose controlled business had been transferred to and vested in the Corporation under the Act. Section 17 provided for the constitution of Tribunals which were empowered by sub-s. (4) to regulate their own procedure and decide all matters within their competence. Section 41 provided that no civil Court would have jurisdiction to entertain or adjudicate upon any matter which a Tribunal was empowered to decide or determine under the Act. Section 44 inter a/ia provided that nothing contained in the Act would apply in relation to any insurer whose business was being voluntarily wound-up or was being wound-up under orders of the Court.\n\nThe Cc>rporation, by its application under s. 15. contended that the transfer ofRs. 82,000/- from theLife Fund to the General E Department under the resolution of January 6, 195,, was iilegal, being contrary to and in contravention of the insurance Act and as such was inoperative, bad in law and not binding on the petitioner.\n\nIt was further contended that the said transfer was without consideration and was not reasonably necessary for the purpose of the controlled business of the company and I or was made witb F unreasonable lack of prudence on the part of the company, regard\n\nbeing had to the circumstances at the time. It was therefore toot it prayed inter alia for a decree against the respondents for a sum of Rs. 82,000 /- with interest. It impleaded the company as respondent No. 9, the appellants in C.A. 676 of 1962 as respondents Nos. 1 and 4 and the appellant in C.A. 677 of 1962 as respondent G No. 2. Ghanshyamdas and Damji Valji were also parties to the resolution dated February 7. 1956. Other directors who were parties to the resolution of January 6 were also impleaded.\n\nThe aforesaid three d:rectors, the appellants before us, contested the claim. of the Corporation and justified the transfer of H Rs. 82,000 /- to the General Department from the Life Fund on the ground that the amount had been lent by the General Department to the Life Department and had been paid back to the General Department by transfer from the Life Fund v.:hen the Lifo Fund showed surplus, according to the report of the Actuary dated July 25, 1955. It was also contended before the Tribunal that the petition coald not be proceeded with without the leave of the Bombay High Court in view of s. 446 of the Indian Companie'\n\n672 SUPREME COUR'f !\\~PORTS\n\n11965) 3 S.C.R.\n\nAct and that the petition was also not maintainable by reason of A s. 44 of the LIC Act. Several other grounds were also taken before the Tribunal. We are not now concerned with them.\n\nThe Tribunal held that the amounts of Rs. 1,10,000/- and Rs. 30,000 /- were not advanced to the Life Department as Joans and that the transfer of Rs. 82,000/- was not out of the valuation B surplus and that therefore the transfer of this amount could not be said to be for consideration a.nd necessa.ry or reasonabl, y necessary for the purpose of the controlled business of the company or even a prudent transaction having regard to the interest of the life policy holders. It held that no leave of the Bombay High Court was necessary for proceeding with the petition and that the peti- C tion was maintainable and that s. 44 of the LIC Act did not bDr the applicability of the provisions of the Act to the respondent company. It therefore decreed the suit and ordered the company and the directors, respondents I to 4, to pay to the Corporation jointly and severally a sum of Rs. 82,000 /- together with interest D thereon at 6 per cent per annum from September I, 1956 till full paymeni. It is against this decree that C.A. 676 of 1962 has been filed, by special leave, by Damji Valji Shah and Jayantilal Hirjibhai Chawda and C.A. 677 of 1962 by Ghanshyamdas. This judgment will govern both these appeals.\n\nThe points raisd by learned counsel for the appellants are:\n\n(i) The Tribunal had no jurisdiction to proceed with the proceedings on the petition presented by the Corporation without the leave\n\nof the High Court in view of s. 446 of the Companies Act, 1956, the company having been ordered to be wound-up by the High Court on November 9, 1959, (ii) In view of s. 44(a) of the LIC Act none of the provisions of the Act applied to the company and F therefore the Tribunal could not proceed on the application of the Corporation subsequent to the company being wcund-up. (iii) The transfer of Rs. 82,000 /- from the Life Fund to the General Department of the company was for consideration and was necessary for the life insurance business.\n\nThe fourth point sought to be urged was that the provisions of s. J5(J)(f) of the LIC Act were ultra vires as they contravened the provisions of Arts. 14 and 19 of the Constitution. This contention was .not raised before the Tribunal during the arguments and was therefore considered by it to have been abandoned. We did\n\nnot therefore allow it to be raised before us.\n\nSub-s. (I) of s. 446 of the Companies Act provides that when a winding-up order has been made or the Official Liquid1tor has been appointed as Provisional Liquidator. no suit or other legal proceeding shall be commenced or, if pending at the date of the winding-up order, shall be proceeded with against the ccmpany except by leave of the Court and subject to such terms as the\n\nl>AMJ! VAT.JI t'. 1 .. 1.c. (Day.d, J.) 6i3\n\nCourt may impose. Subs. (2) provides. inter alia, that the Court which is winding-up the company shall, notwithstanding anything contained in any law for the time being in force, have jurisdiction to entertain or dispose of any suit or proceeding and any claim made by or against the company. Sub-s. (3) provides that any suit or prcceeding by or against the company which is pending in any Court other than that in which the winding-up is proceeding may, notwithstanding anything contained in any other law for the time being in force. be transferred to and disposed of by that Court. The question is whether these provisions would affect the proceedings of I he Tribunal.\n\nIn this connection, reference may be made to s. 41 of the LIC Act which provides that no civil Court shall have jurisdiction to entertain or adjudicate upon any matter which a Tribunal is empowered to decide or determine under that Act. It is not dis puted that the Tribunal had jurisdiction to entertain the application of the Corporation and.adjudicate on the matters raised thereby. The Tribunal is given the exclusive jurisdiction over this matter.\n\nIt is in view of the exclusive jurisdiction hich sub-s. (2) of s. 446 of the Companies Act confers on the company Court to entertain or dispose of any suit or proceeding by or against a company or any claim made by or against it that the restriction referred to in sub-s. (]) has been imposed on the commencement of the procee:lings or proceeding with such' proceedings against a company after a winding-up order has been made. In view of s. 41 of the UC Act the company Court has no jurisdiction to entertain and adjudicate upon any matter which the Tribunal is empowered to decide or determine under that Act. It is not disputed that the Tribunal has jurisJiction under the Act to entertain and decide matters raised in the petition filed by the Corporation under s. 15 of the uc Act. It must follow that the consequential provision of sub-s. (]) of s. 446 of the Companies Act will not operate on the .proceedings which be pending before the Tribunal G or which .may be sought to be commenced before it.\n\nFurther, the provisions of the special Act i e _ the LIC Act, will over-ride the provisions of the general Act viz., the Companies Act which is an Act relating to companies in general.\n\n11 It is however conten:led for the appellants that in view of s. 44(a) of the LIC Act, s. 41 will not apply to the company whose business was being woun1:up under orders of Court and that therefore the provisions of s. 446 of the Companies Act will affect the procedings before the Tribunal. The contention is not sound. The question of the applicability of the Act to a particular insurer is to be considered in relation to facts existing when the Act came jnto force. In view of s. 44 of the LIC Act it will not apply to\n\n674 SUPREME COC:RT ll>'PORTS\n\n(1965] 3 S.C.R,\n\nan insurer whose business is being wound-up under orders of C<1un A. at the time when .. that Act came into force in 1956 or on the 'appointed day' i.e., September I, 1956. when the assets and li<•bilities pertaining to the controlled business cf the company stood transferred and vested in the CorpDration. The company was l'Ol being wound-up under orders of the Court on July I, 1956 when the Act came into force or on the appointed day mentioned earlier.\n\nThe Act did apply to the c0mpany.\n\nIt cannot cease lo apply merely because subsequently the company was ordered to be wound-up.\n\nThe word 'insurer' is defined in cl. 161 of s. 2 of the UC Act and means an insurer as defined in the Insurance Act who carries a on life insurance business in India and includes the Government and a provident society as defined in s. 65 of the Insurance Act.\n\nOn November 9, 1959, when the company was ordered to be woundup it was not an 'insurer' within the meaning of the definition as the company did not carry on life insurance business in India en & that date. Its life insurance busine., s had been taken over by the Corporation on the appointed day and it ceased to carry on that business thereafter. It follows therefore that the company was not an insurer on November 9, 1959 und cannot lil\"ke advantage of the provisions of cl. (a) of s. 44 oi the UC Act.\n\nWe are therefore of opinion that the Tribunal had jurisdiction to continue the proceedings after November 9, 1959 when the company was ordered to be wound-up and that the provisions of s. 446, Companies Act, or s. 44(al. LIC Act, do not in any \"'ay affect its jurisdiction to continue the proceedings.\n\nWe now come to the third point raised for the appellants. We agree with the Tribunal that the amounts of Rs. 1.10.000/- .tnd\n\nRs. 32,000 /- w, ere not lent to the Life Department as such by the General Department. No question of lending money by one depmment of the company to the other can be ordinarily contemplated.\n\nThe assets of the company really constitute one entity, even though G the company maintains separate accounts with respect to its various insurance business. It carried on other types of insuran_ce business also. We have already shown how the provisions of the Insurance Act require the company to keep a separate account for the life insurance business and to have a separate fund known as the Life Insurance Fund and to which were to be credited all H receipts due in respect of the life business and the amount deposited by the insurer in respect of life insurance business. Such a deposit is to be made in view of s. 7(1) of the Insurance Act. This requires the insurer to deposit and keep deposited with the Reserve Bank of India for and on behalf of the Central Government either in cash or in approved securities or partly in cash and partly in approved securities the sums specified in the various clauses iq\n\nVAi.Ji !'.\n\nL.l, C. (Day l, ,/.) 67fi.\n\nA regard to the different types of life insurance businosses. Oause\n\n(a) requ~\"s a ,\\erosit of Rs. 2,00,000/- where the business done <>r to b~ done is life insurance onl:y. Clause (e) requires a deposit of Rs. 3,00,000/- where the business done or to be done is life insurance and any one of the three classes mentioned in clauses (bl to (d).\n\nll<rnse (e) further provides that out of the deposit of Rs. 3,00,000 /-, Rs. 2.00,000 /- shall be the deposit for life insurance business.\n\nSection 7 lays down a statutory amount which the insurer has to deposit. It does not however restrict the insurer to deposit a larger amount in respect of life insurance business. Section 8\\1) places certain restrictions about the use to be made of the depo>its under s. 7. Section 8(2) hew.ever deals with any deposit andprovides that where a deposit is made in respect of life inurancc business, the deposit made in respect thereof shall mt be available for the discharge of any liability of the insurer other than liabilities arising out of policies of life insurance issued by the ins11rcr.\n\nD This means that when an insurer puts certain money in the funds pertaining to the life insurance business and especially to a life insurance fund. such an amount can; be used only fer the discharge\n\nof liabilities of the insurer arising out of life insurance policies issued by him.\n\nThe amounts of Rs. 1,10,000/- and Rs. 32.000/- would thug amount to deposits made by tre company in. respect of life insur- <rnce business in order to augment the life funj. This can be done either to bring the funds tc an amount exceeding the expected net lia bi\\itics on the poiicies or merelv to augment that fund. It makes no difference to the company how it distributed its funds so long as its statutory liabilities. were atisfied. ·\n\nThe very con'..luct of the company with respect to lhc~.e amounts belies the alleged nature of the transfers of these amcunts to (he Life Department. The sum of Rs._ 60,000 /- out ,, f Rs. 1.10,000/- was written off in 1949. A loan of such an amount is not usually writlen off, No special reason is assiQneci for writing oil the loan. The resolution about the transfer of Rs. 32,000,'- ; c, elf speaks of the possibility o{ the amount being written off. A le11der does not think in this wav at the time he advances a loan.\n\nIt is clear that.the amount was re31\\y being transferred to the Life Fund through the Life Department Revenue Acc; Junt as otherwise the Life Fund on the actuarial valuation would have stood at a H figure much below the amourit of the net liabilities on the policies as calculated in Form H, Schedule Four to the lnsurnnce Act, which is a Form giving summary and valuation of the policies. cf the company as at the date of the valuation. Form I is for the valuation balance-sheet of the company at the corresponding date and requires in one column the net liability under business as shown in the summary and valuation of policies and in the other column the balance of life insurance fund as shown\n\n~76\n\nSUPRRMF. COURT REPORT-, [l 965] ~. s.c.n.\n\nin the balance sheet, and also provides for noting the eventual posi A tion about the Life Fund being in surplus or fo deficiency 'as compared to the net liability. Wheri the amount was not lent as a loan, no question of its repayment as such could have arisen in 1956. ofcourse whenever the Life Fund showed an actuarial valuati0n surplus' tht surplus or part of it could be transferred to t]]e General Department according to the desire of the management.\n\nThe amount of Rs. 82,000 /. was not transferred as a result of the actuarial valuation as contemplated by _the various resolu tions which authorised the transfer of the amount from the General Department to the Life Department Revenue Account. It was definitely provided in those resolutions that no repayment of the C amount would be inade except out. of valuation surpluses of the Life Department.\n\nThe expression 'valuation surplus\" has a .technical meaning under the Act.\n\nD . Section 13(]) of the Insurance'. Act provides that e<very insurer carrying on life insurance business shall, ii) respect cf the life insur ance business transacted in lndia.-cause once at least in every three ylf.irs an investigation to be macie-b¥ an ectuary into the financial condition of the life insurance business c•rried on by him, includ E ing the valuation of pis liabilities in respect thereto. An abstract of the report of the actuary is to be made in accordance with 'the regulations contained in Part r cf the Fourth SchMule and in con- Jormity with the requirements of Part II of that Schedule. Section. - ~- 13(2) provides that the provisions of sub-s. (]) regirding the m, aking of an ab; tract shall <i; pply whenever at any other time an investiga F lion into the financial conditicn of the insurer. is made with a 'view to the distribution of profits or an iqvestigation is made of which the resi:t, are m<1de public. The abstract is to be certified on behalf of the insurer to the effect 1hat fulJ anj effective particulars of every' policy under which there is a liability either actual or contingent have been furnishej to the actuary for the purpose of inves- G ligation.\n\nSection 15 requires the submission of the aforesaid abstract to the Controller within the specified period. Part II of the Fourth Schedule requires that° every extract prepared in eccordance with the requirements of that part of the Schedule win have the state- H ment of a consolidated revenue. a.ccount in' Ferm G, a sumrnarv an:! valuation in Form H. a valuation balance sheet in Form I and a statement in Farm DDD rs set forth in Part IT of the Third Sche dule annexed to it. The valuation balance sheet in Form I requires the, noting of a surplus: if any, of the balence of the life insurance fund as compared tc thenet •liability in tire business as shown in the sum111ary and valu\"ation of policies. It is the surplus noted in this\n\n- __ ___..__\n\nDAM.JI VAi.Ji v. L.I.C. (Duy;!, J.) 677\n\nForm I which is really the valuation surplus. It was out of such surplus that the company resolved that the advances of Rs. l, I0,000/- and Rs. 32,000 /- could be paid to the General Department by the Life Department. No such actuarial valuation was made by the actuary prior to the transfer of Rs. 82,000/- to the General Fund by the resolution dated January 6, 1956.\n\nReliance in this connection is placed on behalf of the appellants on the letter of the actuary dated July 25, 1955. The actuarY'\n\nstates:\n\n\"On the above basis, the valuation shows a policy liability of Rs. 20,20,421.\n\nThe Life Insurance Fund is Rs. 21,32,455. Thus there is a surplus of Rs. 1.12.033.\n\nThe surplus includes Rs. 53,300 being the amount of appreciation on investments taken into account by you in the past two years.\n\nThus the net working surplus is Rs. 58,733/-.\n\nThe cost of Bonus at the rate of Rs. JO/- per thousand is approximately Rs. 48,000 /-.\n\nThus the surplus is sufficient to enable a bonus declaration at the above rate even after excluding the appreciation amount or setting it a part as an additional reserve for future use.\n\nConclusion: The result is satisfactory. Cont\" nuing the same method of working as you have followed. the statutory valuation as on 31-12-55 will surely enable you to declare a higher bonus.\"\n\nfirstly, it does not appear th3t the actuary had really conducted an investigation and submitted the valuation report as required by s. 13, of the Insurance Act. There is nothing on the record to show that any ubstract in Form I, Fourth Schedule, was prepared\n\nand submitted to the Controller. Further. the letter shows that the G net working surplus was only Rs. 58,733/- as the ostensible surplus of Rs. 1,12,033 /- included Rs. 53,300 /- by which certain invest ments of the company had appreciated in that period. 'When the net working surplus was much less than Rs. 82,000/- which were transferred from the Life Department to the General Department, the transfer of Rs. 82,000/- cannot be said to have been in accord- :H ance with the terms on which the alleged Joan was made to the Life Department from the General Department. When the Life Department had not Rs. 82,000 /- with itself, there could not have been any necessity to pay that amount to the General Department.\n\nIn fact, the alleged loan could be paid only when there would have been a valuation surplus in the accounts of the Life Department but this does not mean that the Life Department was bound to pay back the amount. the moment it had any valuation surplus.\n\n678 SUPRE~IE COURT REPOJtTS [196rtj 3 s.c.R.\n\nIts liability to pay the alleged loan could arise only when there was a valuation surplus. Its paying the amount actually would: depend upon the circumstances prevailing at the time.\n\nJn the circumstances, we cannot resist the conclusion thar the Directors passed a resolution for the transfer of this amount on January 6, 1956 in anticipation of some law depriving the ccm- B pany of its life insurance business. It may be that it was a close secret that an Ordinance would te issued on January 19. But all the same, possibly, persons in the insurance world could have had an inkling of the trend of events.\n\nThe content of the resolution passed en January 6, indicates g that the directors had no clear idea at the time as to how much t-he Life Department. according to them, owed to the General Department.\n\nThe resolution speaks not only of the transfer of Rs. 82,000 /- to the General Depa.rtment but also refers to t.hei bafance of Rs. 60,000 /- due to the General Department by the Lifo Department Revenue Account. The amount had been written off D in 1950 and could not have tl1ereafter been considered to be a loan advanced to the Life Department Revenue Account from the General Department. It seems that the resolution was passed in some hurry and the Directors could not definitely decide as to how any further amount upto Rs. 60.000 /- could be taken back te the General Department from the Life Department Revenue Account. E Any way, such a resolution of the Directors indicates that any entries with respect to the alleged loans were made for the purpose of accounting and the necessities of the business. Money in the Life Fund had to be augmented in 1948 and 1952 in order to make the Life Fund xceed the net liabilities of !he company on account of the life insurance policies. ' F\n\nWe are therefore of opinion that the Tribunal took a correct view about the nature of the transfer of Rs. 1,10,000/- in 1948 and Rs. 32,000 /- in 1952 to the Life Insurance Fund and rightly held that the transfer of Rs. 82,000 /- to the General Department by'\n\nresolution dated Januarv 6, 1956, was not in acordance with the G i; rovisions of the rn, urance Act and that con, equently that amount continued to form part of the assets of the life insurance business of the comoany upto September !, 1956 and that as such vested in the Corporation which could recover it from the company and the directors responsible for the transfer of the amount to the General Department.\n\nThe appeals therefore fail and are dismissed with costs, one hearing fee.\n\nAppeals dismissetl-", "total_entities": 129, "entities": [{"text": "DAMJI V ALJI SHAH AND ANOTHER", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "DAMJI V ALJI SHAH AND ANOTHER", "offset_not_found": false}}, {"text": "LIFE INSURANCE CORPORATION OF INDIA & ORS", "label": "RESPONDENT", "start_char": 31, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "LIFE INSURANCE CORPORATION OF INDIA & ORS", "offset_not_found": false}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 94, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 123, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL", "label": "JUDGE", "start_char": 141, "end_char": 155, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "V.\" RAMASWAMI", "label": "JUDGE", "start_char": 160, "end_char": 173, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Life Insurance Corporation Act, 1956", "label": "STATUTE", "start_char": 181, "end_char": 217, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 15", "label": "PROVISION", "start_char": 219, "end_char": 225, "source": "regex", "metadata": {"linked_statute_text": "Life Insurance Corporation Act, 1956", "statute": "Life Insurance Corporation Act, 1956"}}, {"text": "Indian Companies Act, 1956", "label": "STATUTE", "start_char": 237, "end_char": 263, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 446(1 )", "label": "PROVISION", "start_char": 265, "end_char": 276, "source": "regex", "metadata": {"linked_statute_text": "Indian Companies Act, 1956", "statute": "Indian Companies Act, 1956"}}, {"text": "s. 15", "label": "PROVISION", "start_char": 325, "end_char": 330, "source": "regex", "metadata": {"linked_statute_text": "Indian Companies Act, 1956", "statute": "Indian Companies Act, 1956"}}, {"text": "s. 446(1)", "label": "PROVISION", "start_char": 430, "end_char": 439, "source": "regex", "metadata": {"linked_statute_text": "Indian Companies Act, 1956", "statute": "Indian Companies Act, 1956"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 444, "end_char": 457, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 15", "label": "PROVISION", "start_char": 514, "end_char": 519, "source": "regex", "metadata": {"linked_statute_text": "Indian Companies Act, 1956", "statute": "Indian Companies Act, 1956"}}, {"text": "Indian Insurance Act, 1938", "label": "STATUTE", "start_char": 522, "end_char": 548, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 839, "end_char": 847, "source": "regex", "metadata": {"linked_statute_text": "Indian Insurance Act, 1938", "statute": "Indian Insurance Act, 1938"}}, {"text": "Indian Life Insurance Act, 1938", "label": "STATUTE", "start_char": 855, "end_char": 886, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "December 18, 1948", "label": "DATE", "start_char": 1285, "end_char": 1302, "source": "ner", "metadata": {"in_sentence": "By resolution dated December 18, 1948, a sum of Rs."}}, {"text": "July' 18, 1949", "label": "DATE", "start_char": 1545, "end_char": 1559, "source": "ner", "metadata": {"in_sentence": "1,10,000 was transferred from the General Department of the company to the Life Department to be added to the Life Fund; if this had not been done the said fund would have shown a deficit in the actuarial valuation report dated July' 18, 1949."}}, {"text": "December 31, 1952", "label": "DATE", "start_char": 1908, "end_char": 1925, "source": "ner", "metadata": {"in_sentence": "32,000 was again similarly transferred from the General to the Life Department by resolution passed in August 1953 with retrospective effect from December 31, 1952, in order to strengthen the position of the Life Fund which again would have shown a deficit if this had not been done."}}, {"text": "January 8, 1956", "label": "DATE", "start_char": 2212, "end_char": 2227, "source": "ner", "metadata": {"in_sentence": "On January 8, 1956, the Board of Directors of the company transferred a sum of Rs."}}, {"text": "January 19, 1956", "label": "DATE", "start_char": 2395, "end_char": 2411, "source": "ner", "metadata": {"in_sentence": "On January 19, 1956, by Ordinance No."}}, {"text": "Central Government", "label": "ORG", "start_char": 2531, "end_char": 2549, "source": "ner", "metadata": {"in_sentence": "1 of 1956 the management of the life insurance business of all insurers in the country passed to the Central Government."}}, {"text": "September 1, 1956", "label": "DATE", "start_char": 2554, "end_char": 2571, "source": "ner", "metadata": {"in_sentence": "On September 1, 1956, the Life Insurance Corporation of India came into being under the Life Insurance Corporation Act, 1956, and the assets and liabilities of the life insurance business carried on by all insurers became ·.,"}}, {"text": "Life Insurance Corporation of India came into being under the Life Insurance Corporation Act, 1956", "label": "STATUTE", "start_char": 2577, "end_char": 2675, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 15", "label": "PROVISION", "start_char": 2834, "end_char": 2839, "source": "regex", "metadata": {"linked_statute_text": "the Life Insurance Corporation of India came into being under the Life Insurance Corporation Act, 1956", "statute": "the Life Insurance Corporation of India came into being under the Life Insurance Corporation Act, 1956"}}, {"text": "s. 446", "label": "PROVISION", "start_char": 3691, "end_char": 3697, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act, 1956", "label": "STATUTE", "start_char": 3705, "end_char": 3724, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "November 9, 1959", "label": "DATE", "start_char": 3792, "end_char": 3808, "source": "ner", "metadata": {"in_sentence": "ants; (1) The tribunal had no jurisdiction to proceed with the proceedings on the petition presented by the Corporation without the leave of the High Court in .view of s. 446 of the Companies Act, 1956, the Company having been ordered to be wound up the High Court\n\non November 9, 1959; (2) In view of s. 44(a) of the L.I.C. Act noi..; of the provisions of the Act applied to the company and therefore the Tribunal could not proceed on the application of the CorPora- C tion subsequent to the company being: wound-up; (3) The transfer of Rs."}}, {"text": "s. 44(a)", "label": "PROVISION", "start_char": 3825, "end_char": 3833, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1956", "statute": "the Companies Act, 1956"}}, {"text": "s. 446", "label": "PROVISION", "start_char": 4236, "end_char": 4242, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1956", "statute": "the Companies Act, 1956"}}, {"text": "s. 446", "label": "PROVISION", "start_char": 4412, "end_char": 4418, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1956", "statute": "the Companies Act, 1956"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 4426, "end_char": 4439, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 41", "label": "PROVISION", "start_char": 4777, "end_char": 4782, "source": "regex", "metadata": {"statute": null}}, {"text": "Act the company court has no jurisdiction to try matters which a Tribunal under the Companies Act", "label": "STATUTE", "start_char": 4798, "end_char": 4895, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 15", "label": "PROVISION", "start_char": 5034, "end_char": 5039, "source": "regex", "metadata": {"linked_statute_text": "Act the company court has no jurisdiction to try matters which a Tribunal under the Companies Act", "statute": "Act the company court has no jurisdiction to try matters which a Tribunal under the Companies Act"}}, {"text": "s. 446", "label": "PROVISION", "start_char": 5185, "end_char": 5191, "source": "regex", "metadata": {"linked_statute_text": "Act the company court has no jurisdiction to try matters which a Tribunal under the Companies Act", "statute": "Act the company court has no jurisdiction to try matters which a Tribunal under the Companies Act"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 5384, "end_char": 5397, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 44(a)", "label": "PROVISION", "start_char": 5520, "end_char": 5528, "source": "regex", "metadata": {"linked_statute_text": "Act the company court has no jurisdiction to try matters which a Tribunal under the Companies Act", "statute": "Act the company court has no jurisdiction to try matters which a Tribunal under the Companies Act"}}, {"text": "Section 44(a)", "label": "PROVISION", "start_char": 5558, "end_char": 5571, "source": "regex", "metadata": {"linked_statute_text": "Act the company court has no jurisdiction to try matters which a Tribunal under the Companies Act", "statute": "Act the company court has no jurisdiction to try matters which a Tribunal under the Companies Act"}}, {"text": "July l, 1956", "label": "DATE", "start_char": 5866, "end_char": 5878, "source": "ner", "metadata": {"in_sentence": "But the question of the applicability of the Act to a particular insurer is to be considered in relation to facts existing at the time when the Ac~ came into force i.e. July l, 1956 or on the appointed day, i.e. September I. 1956, when the assets and liabilities of the contr.olled insurer of the company stood transferred and vested in H the Corporation."}}, {"text": "s. 41", "label": "PROVISION", "start_char": 6159, "end_char": 6164, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(6)", "label": "PROVISION", "start_char": 6487, "end_char": 6494, "source": "regex", "metadata": {"statute": null}}, {"text": "July.", "label": "DATE", "start_char": 7967, "end_char": 7972, "source": "ner", "metadata": {"in_sentence": "The LIC Act came into force on July."}}, {"text": "September 1, 19§6", "label": "DATE", "start_char": 8020, "end_char": 8037, "source": "ner", "metadata": {"in_sentence": "I. 1956 and the Corporation was established on September 1, 19§6 which was the \"appointed day'\n\ncording to s. 2([) of that Act."}}, {"text": "s. 2([)", "label": "PROVISION", "start_char": 8080, "end_char": 8087, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 8125, "end_char": 8129, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(3)", "label": "PROVISION", "start_char": 8248, "end_char": 8255, "source": "regex", "metadata": {"statute": null}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 8537, "end_char": 8550, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 15", "label": "PROVISION", "start_char": 8759, "end_char": 8764, "source": "regex", "metadata": {"statute": null}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 9148, "end_char": 9161, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10", "label": "PROVISION", "start_char": 9639, "end_char": 9644, "source": "regex", "metadata": {"statute": null}}, {"text": "December 18. 1948", "label": "DATE", "start_char": 10261, "end_char": 10278, "source": "ner", "metadata": {"in_sentence": "By resolution dated December 18."}}, {"text": "Dece~\n\nber 31, 1948", "label": "DATE", "start_char": 11112, "end_char": 11131, "source": "ner", "metadata": {"in_sentence": "1,10,000/- had not been transferred to the Life Department Revenue Account prior to Dece~\n\nber 31, 1948, this valuation report would have shown the net hab1lity exceeding the amount in the life fund by about a ."}}, {"text": "September 9, 1953", "label": "DATE", "start_char": 11818, "end_char": 11835, "source": "ner", "metadata": {"in_sentence": "Rs, 32,000 Iwere again similarly transferred to the Life Fund from the General Department with retrospective effect from December 31, 1952 in order to strengthen the position of the Life Fund,\n\nThe second actuarial valuation report for the period 1949-- 52, dated September 9, 1953, showed that the policy liability amounted to Rs, 15,36,068, that the Life Fund stood at Rs, 15,35,890/- and that thus the Life Fund exceded the net liabi• lity by Rs."}}, {"text": "August 20, 1953", "label": "DATE", "start_char": 12164, "end_char": 12179, "source": "ner", "metadata": {"in_sentence": "There was thus a surplus as Rs, 32,000 /- had been transferred to strengthen the Life Fund, with retrospective effect in view of the resolution dated August 20, 1953 whicb\n\nrads:\n\n\"Resolved that a lean of Rs, 32,000 /- (thirty two thousand only) bearing no interest be hereby given to Life Department by General Department with retrospective effect as on 3 lst December 1952, the repayment of which shall be made only out of the future Valuation Surplus or surpluses of the Life Department or it may be written off from the future profits of the General Department This will have effect in the accounts of the Company for the year ended 31st December 1952,\"\n\nIt is to be noted that this resolution itself said that the amount would be repaid only out of the future Valuation Surplus or surpluses of the Life Departtnent or might be written off from the future profits of the General Department\n\nIt was this amount of Rs."}}, {"text": "3 lst December 1952", "label": "DATE", "start_char": 12369, "end_char": 12388, "source": "ner", "metadata": {"in_sentence": "There was thus a surplus as Rs, 32,000 /- had been transferred to strengthen the Life Fund, with retrospective effect in view of the resolution dated August 20, 1953 whicb\n\nrads:\n\n\"Resolved that a lean of Rs, 32,000 /- (thirty two thousand only) bearing no interest be hereby given to Life Department by General Department with retrospective effect as on 3 lst December 1952, the repayment of which shall be made only out of the future Valuation Surplus or surpluses of the Life Department or it may be written off from the future profits of the General Department This will have effect in the accounts of the Company for the year ended 31st December 1952,\"\n\nIt is to be noted that this resolution itself said that the amount would be repaid only out of the future Valuation Surplus or surpluses of the Life Departtnent or might be written off from the future profits of the General Department\n\nIt was this amount of Rs."}}, {"text": "31st December 1952", "label": "DATE", "start_char": 12651, "end_char": 12669, "source": "ner", "metadata": {"in_sentence": "There was thus a surplus as Rs, 32,000 /- had been transferred to strengthen the Life Fund, with retrospective effect in view of the resolution dated August 20, 1953 whicb\n\nrads:\n\n\"Resolved that a lean of Rs, 32,000 /- (thirty two thousand only) bearing no interest be hereby given to Life Department by General Department with retrospective effect as on 3 lst December 1952, the repayment of which shall be made only out of the future Valuation Surplus or surpluses of the Life Department or it may be written off from the future profits of the General Department This will have effect in the accounts of the Company for the year ended 31st December 1952,\"\n\nIt is to be noted that this resolution itself said that the amount would be repaid only out of the future Valuation Surplus or surpluses of the Life Departtnent or might be written off from the future profits of the General Department\n\nIt was this amount of Rs."}}, {"text": "January 6, 1956", "label": "DATE", "start_char": 13006, "end_char": 13021, "source": "ner", "metadata": {"in_sentence": "32,000/-) which, by a resolution dated January 6, 1956 was transferred to the General Department from the Life Fund, The resolution reads: -\n\n\"Resolved that a loan of Rs."}}, {"text": "Section 3(1)", "label": "PROVISION", "start_char": 14034, "end_char": 14046, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 14236, "end_char": 14240, "source": "regex", "metadata": {"statute": null}}, {"text": "January 6, 1959", "label": "DATE", "start_char": 15258, "end_char": 15273, "source": "ner", "metadata": {"in_sentence": "It would therefore appear that possibly the Board of Dir.ectors were not right in confirming the resolution of January 6, 1959 after the Ordinance had come into force."}}, {"text": "Act", "label": "STATUTE", "start_char": 15440, "end_char": 15443, "source": "regex", "metadata": {}}, {"text": "July l. 1956", "label": "DATE", "start_char": 15447, "end_char": 15459, "source": "ner", "metadata": {"in_sentence": "We have already referred to the coming into force of the LIC G\n\nAct on July l. 1956 and of the transfer and vesting in the Corporation of al!"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 15602, "end_char": 15606, "source": "regex", "metadata": {"linked_statute_text": "We have already referred to the coming into force of the LIC G\n\nAct", "statute": "We have already referred to the coming into force of the LIC G\n\nAct"}}, {"text": "Section 15", "label": "PROVISION", "start_char": 15620, "end_char": 15630, "source": "regex", "metadata": {"linked_statute_text": "We have already referred to the coming into force of the LIC G\n\nAct", "statute": "We have already referred to the coming into force of the LIC G\n\nAct"}}, {"text": "s. 15", "label": "PROVISION", "start_char": 16490, "end_char": 16495, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 16763, "end_char": 16773, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 17", "label": "PROVISION", "start_char": 16925, "end_char": 16935, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 41", "label": "PROVISION", "start_char": 17094, "end_char": 17104, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 44", "label": "PROVISION", "start_char": 17270, "end_char": 17280, "source": "regex", "metadata": {"linked_statute_text": "Court would have jurisdiction to entertain or adjudicate upon any matter which a Tribunal was empowered to decide or determine under the Act", "statute": "Court would have jurisdiction to entertain or adjudicate upon any matter which a Tribunal was empowered to decide or determine under the Act"}}, {"text": "s. 15", "label": "PROVISION", "start_char": 17513, "end_char": 17518, "source": "regex", "metadata": {"linked_statute_text": "Court would have jurisdiction to entertain or adjudicate upon any matter which a Tribunal was empowered to decide or determine under the Act", "statute": "Court would have jurisdiction to entertain or adjudicate upon any matter which a Tribunal was empowered to decide or determine under the Act"}}, {"text": "January 6, 195", "label": "DATE", "start_char": 17633, "end_char": 17647, "source": "ner", "metadata": {"in_sentence": "82,000/- from theLife Fund to the General E Department under the resolution of January 6, 195,, was iilegal, being contrary to and in contravention of the insurance Act and as such was inoperative, bad in law and not binding on the petitioner."}}, {"text": "insurance Act", "label": "STATUTE", "start_char": 17709, "end_char": 17722, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ghanshyamdas", "label": "RESPONDENT", "start_char": 18391, "end_char": 18403, "source": "ner", "metadata": {"in_sentence": "Ghanshyamdas and Damji Valji were also parties to the resolution dated February 7.", "canonical_name": "Ghanshyamdas"}}, {"text": "Damji Valji", "label": "RESPONDENT", "start_char": 18408, "end_char": 18419, "source": "ner", "metadata": {"in_sentence": "Ghanshyamdas and Damji Valji were also parties to the resolution dated February 7.", "canonical_name": "Damji Valji Shah"}}, {"text": "February 7. 1956", "label": "DATE", "start_char": 18462, "end_char": 18478, "source": "ner", "metadata": {"in_sentence": "Ghanshyamdas and Damji Valji were also parties to the resolution dated February 7."}}, {"text": "July 25, 1955", "label": "DATE", "start_char": 19009, "end_char": 19022, "source": "ner", "metadata": {"in_sentence": "82,000 /- to the General Department from the Life Fund on the ground that the amount had been lent by the General Department to the Life Department and had been paid back to the General Department by transfer from the Life Fund v.:hen the Lifo Fund showed surplus, according to the report of the Actuary dated July 25, 1955."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 19137, "end_char": 19154, "source": "ner", "metadata": {"in_sentence": "It was also contended before the Tribunal that the petition coald not be proceeded with without the leave of the Bombay High Court in view of s. 446 of the Indian Companie'\n\n672 SUPREME COUR'f !"}}, {"text": "s. 446", "label": "PROVISION", "start_char": 19166, "end_char": 19172, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 19311, "end_char": 19316, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 20050, "end_char": 20055, "source": "regex", "metadata": {"statute": null}}, {"text": "Damji Valji Shah", "label": "RESPONDENT", "start_char": 20505, "end_char": 20521, "source": "ner", "metadata": {"in_sentence": "It is against this decree that C.A. 676 of 1962 has been filed, by special leave, by Damji Valji Shah and Jayantilal Hirjibhai Chawda and C.A. 677 of 1962 by Ghanshyamdas.", "canonical_name": "Damji Valji Shah"}}, {"text": "Jayantilal Hirjibhai Chawda", "label": "OTHER_PERSON", "start_char": 20526, "end_char": 20553, "source": "ner", "metadata": {"in_sentence": "It is against this decree that C.A. 676 of 1962 has been filed, by special leave, by Damji Valji Shah and Jayantilal Hirjibhai Chawda and C.A. 677 of 1962 by Ghanshyamdas."}}, {"text": "Ghanshyamdas", "label": "RESPONDENT", "start_char": 20578, "end_char": 20590, "source": "ner", "metadata": {"in_sentence": "It is against this decree that C.A. 676 of 1962 has been filed, by special leave, by Damji Valji Shah and Jayantilal Hirjibhai Chawda and C.A. 677 of 1962 by Ghanshyamdas.", "canonical_name": "Ghanshyamdas"}}, {"text": "s. 446", "label": "PROVISION", "start_char": 20862, "end_char": 20868, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act, 1956", "label": "STATUTE", "start_char": 20876, "end_char": 20895, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 44(a)", "label": "PROVISION", "start_char": 20999, "end_char": 21007, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1956", "statute": "the Companies Act, 1956"}}, {"text": "Arts. 14 and 19", "label": "PROVISION", "start_char": 21522, "end_char": 21537, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1956", "statute": "the Companies Act, 1956"}}, {"text": "s. 446", "label": "PROVISION", "start_char": 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"metadata": {"statute": null}}, {"text": "s. 446", "label": "PROVISION", "start_char": 24152, "end_char": 24158, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 24166, "end_char": 24179, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 24429, "end_char": 24442, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 44(a)", "label": "PROVISION", "start_char": 24557, "end_char": 24565, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 41", "label": "PROVISION", "start_char": 24582, "end_char": 24587, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 446", "label": "PROVISION", "start_char": 24711, "end_char": 24717, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 24725, "end_char": 24738, 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"end_char": 25819, "source": "ner", "metadata": {"in_sentence": "161 of s. 2 of the UC Act and means an insurer as defined in the Insurance Act who carries a on life insurance business in India and includes the Government and a provident society as defined in s. 65 of the Insurance Act."}}, {"text": "s. 65", "label": "PROVISION", "start_char": 25886, "end_char": 25891, "source": "regex", "metadata": {"statute": null}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 25899, "end_char": 25912, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 44", "label": "PROVISION", "start_char": 26400, "end_char": 26405, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 446", "label": "PROVISION", "start_char": 26607, "end_char": 26613, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 26615, "end_char": 26628, "source": "gazetteer", "metadata": 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"label": "STATUTE", "start_char": 30627, "end_char": 30661, "source": "regex", "metadata": {}}, {"text": "Section 13(])", "label": "PROVISION", "start_char": 32023, "end_char": 32036, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 15", "label": "PROVISION", "start_char": 33219, "end_char": 33229, "source": "regex", "metadata": {"statute": null}}, {"text": "Fourth Schedule", "label": "PROVISION", "start_char": 33342, "end_char": 33357, "source": "regex", "metadata": {"statute": null}}, {"text": "31-12-55", "label": "DATE", "start_char": 35269, "end_char": 35277, "source": "ner", "metadata": {"in_sentence": "the statutory valuation as on 31-12-55 will surely enable you to declare a higher bonus.\""}}, {"text": "s. 13", "label": "PROVISION", "start_char": 35463, "end_char": 35468, "source": "regex", "metadata": {"statute": null}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 35477, "end_char": 35490, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Fourth Schedule", "label": "PROVISION", "start_char": 35560, "end_char": 35575, "source": "regex", "metadata": {"statute": null}}, {"text": "Januarv 6, 1956", "label": "DATE", "start_char": 38690, "end_char": 38705, "source": "ner", "metadata": {"in_sentence": "82,000 /- to the General Department by'\n\nresolution dated Januarv 6, 1956, was not in acordance with the G i; rovisions of the rn, urance Act and that con, equently that amount continued to form part of the assets of the life insurance business of the comoany upto September !,"}}]}
{"document_id": "1965_3_679_683_EN", "year": 1965, "text": "UNION OF INDIA AND ANR. v.\n\nINDIA FISHERIES (P) LTD.\n\nApril 9, 1965\n\n[K. SUBBA RAO, J. C. SHAH AND S. M. SIKRI, JJ.]\n\nIncqme Tax Act 1922, s. 49E-Department's power to set off r•- fundable amount against tax remaining due-Whether available in respect of tax due from company in liquidation-Whether subject to ss. 228 and 229 of the Companies Act, 1913.\n\nThe respondent company was directed to be wound-up and an official liquidator appointed by an order of the High Court in October,\n\n1950. In December, 1950, the respondent was assessed to tax amounting to Rs. 8737 /- for the year 194&-49. A claim made for this tax on the official liquidator was adjudged and allowed as an ordinary claim and certified as such in April, 1952. The Liquidator declared a dividend ol'W annas in the Rupee in August, 1954 and paid a sum of Rs. 5188 to the Department, leaving a balance of Rs. 3549.\n\nIn June, 1954, the Department made a demand from the respondent and was paid Rs. 2565 as advance tax for the year 1955-56. On a regular assessment being made for that year, only Rs. 1126 Was assessed as payable, so that a sum of Rs. 1460, inclusive of interest, became refundable to the respondent. However, the Income Tax Officer, purporting to exercise the power available to him under s. 49E of the Income Tax Act, 1922, set off this amount against the balance of Rs. 3549 due for the year 194&-49. A revision petition filed by respondent in respect of this set off was rejected bv the Commissioner of Income Tax. ·\n\nThereafter, a petition under Art. 226 filed by the respondent to set aside the orders of the Income Tax Officer and the Commissioner was allowed by the High Court, mainly on the ground that the demand for Rs. 8737 in respect of 1948-49, being adjudged nd certified came to have all the incidents and character of an unsecured debt payable by the liquidator to the Department; it was therefore governed by the pcovisions of Company Law and no other remedy or method to obtain satisfaction of the claim was available to the creditor.\n\nIn the appeal to this Court it was contended on behalf of the appellant that s. 49E gave statutory power to Income-tax Officer to set off a refundable amount against any tax remaining payable and that this power was not subject to any provision of any other law.\n\nHELD: The Income Tax Officer was in error in applying s. 49E and 8'tting off the refund due to the respondent. [6B3C-D]\n\nThe effect of ss. 228 and 229 of the Companies Act, 1913, is, inter aLia, that an unsecured creditor must prove his debts and all unsecured debts are to be paid pari passu. Once the claim of the Depertment has to be proved and is proved in liquidation proceedings, it 679\n\n~.·, ''' [1965] 3 S.('. lt. . -~-t -- -- '\n\ncannot~ , by\" eXercising the-\\ right. under-· s. .i 49E get: priority -over 'the A • other unsecured creditors and thus defeat the very object of ss. 223 . <ind 229 of the Companies Act. Furthermore, if_ there is arrapparent~· conflict between two independant provisions of lavt, the special pro- - visioii n1us't prevail. Section 49E is a general. Provision applicable to ,.--- . all a~essees in all circumstances; ss. 228 and 229 deal with proof of cieo.s and their payment in liquidation. Section 49E can be reconciled with ss. 228 and 229 by holding that s . .49E applies when insol- ' B'• . pency rules do not apply. [682H-683JJ]\n\nCiv1i APPELLATE JuR1so1crioN: Civil Appeal No. 211 of 1964.\n\n, T-.\n\n' 'Appeal from. the judgment ad order dated February 22; 1961 of the Bombay High Court in Miscellaneous Application No. 352 C of 1959. ·\n\nNiren De, Additional Solicitor General, R'. Ganapathy Iyer and R. N. Sachthey, for the appellants.\n\n A. V. Viswanatha Sastri, T. A. Ramachandran, J. B. Dadachanji, 0. C. Mathur and llavinder Narain, for the respondents..\n\nD The Judgment of the Court was delivered by Sikri, J. This appeal is in pursuant to a certificate ()f fitness granted by the High Court of Maharashtra at Bombay under Art. I 33(1)(c) of the Constitu.tion is directed against the judgment of the said High Court in a petition under Art. 226 of E the Constitution filed by the respondent. -\n\nThe lndia Fisheries (P) Ltd. hereinafter called the respon• dent was a private limited company and. was directed to be wound- Dp by an order of the Bombay High Court, dated October II, 1950, and a Court Liquidator was appointed as the Official Liquidator F thereof with all powers under s. 179 of the Indian Companies Act, 1913 <VII of 1913) to be exercised by him under s. 180 without sanction or intervention of the Court save and except in case of sa!es of immovable property belonging to the respondent. For the assessment year 1948-49, the respondent was assessed on December 8; 1950, the tax being assessed at Rs. 8, n7 /15/-. On or about G . March 15,' 1951, the Income Tax Officer lodged a claim in respect of this tax with the Official Liquidator. That claim was adjudged and allowed as an ordinary claim and certified as such on April 2,\n\n1952. In August, 1954, the Official Liquidator declared a dividend . of 9f annas in a rupee and paid to the Income Tax Department a sum of Rs. 5,188/3/- aginst the claim made by the\"Income Tax H Officer as an ordinary creditor. Thus a balance of Rs. 3,549/12/~ still remained payable to the Income Tax Department from the assets of the respondent.\n\nFor the year 1955-56, the Department made a demand from the respondent on June 22, 1954, for a sum of Rs. 2,565/6/- as advance tax. ' This was paid by the Official Liquidator.· On. a\n\nUNION OF !NlllA '' INDIA FISHERIES (Sikri, J.) 681\n\nregular assessment being made for the said year, only Rs. 1,126/ 12/- was assessed as payable by the respondent. After adjus.ting this sum against the advance payment of Rs. 2,565/6/-, Rs. 1,46011/-\n\nbecame refundable to the respondent, inclusive of interest. Instead of refunding the said balance to the respondent, the Income Tax Officer set off the said amount against the balance of Rs. 3,549 / l 2/-\n\nwhich was still outstandin• in resoect of the Income-tax demand 0 - • • • • for the year 1948-49. The respondent filed. a reymon pelih?n to the Commissioner of Income-tax, but the said pellhon was reiected by the Commissioner on September 21, 1959,. hoding that the action of the Income Tax Officer was perfectly iusttfied under the provision of s. 49E cf the Income Tax Act.\n\nOn November 25, 1959, the respondent filed a petition under art. 226 of the Constitution and prayed for a writ, direction or order for setting aside the orders oL the Income Tax Officer and the Income Tax Commissioner. He further prayed for any further writ, direction or order restraining the Dpartment from setting off the refund against the tax dues and directing them to hand over the balance to the Official Liquidator.\n\nThe High Court held that the demand of Rs. 8,737 /12/- in' respect of the assessment year 1948-49, being adjudged and certified, came to have all the incidents and character of an unsecured debt payable by the Official Liquidator to the Department. The High Court observed that \"this claim thereafter was governed by the provisions of the Company law and could be paid to the crerlitor orily in accordance with the provisions of the Company law. No\n\nother remedy nor any other method of obtaining satisfaction d this claim was available to the creditor thereafter. It was no longer the amount of tax remaining payable by a person to whom the refund was due within the meaning of Section 49E of the Income Tax Act. In our opinion, therefore, the provision of Section 49E was not available to the Department for setting off the amount of the excess towards the balance of its claim of Rs. 8,737 /15/- which the department had proved in the insolvency of the company and G was being dealt with in the Insolvency.\" The High Court accordingly set aside the orders passed by the Department in so far as they set off the amount of the refund towards the tax remaining payable, and directed the Income Tax Officer to deal with and dispose of the claim of the present respondent for the refund an.ct pass appropriate\n\norders in respect of the said amount of refund under the provisions of s. 48 of the Income Tax Act.\n\nThe learned Additional Soliditor.General, on behalf f the appellant, contends that s. 49E gives statutory power to the Income Tax Officer. inter alia, to set off the amount to be refunded or any part of that amount against the tax remaining payable by the person to whom the refund is due, and this statutory power is not subject to any provision of any other law. He says that the Companies Act\n\nj)82 [!Hi0] 3 s.e.Jt.\n\ndoes not take away this power. Section 49E is in the following A terms:\n\n\"Where under any of the provisions of this Act, a refund is found to be , ue to any person, the Income-tax Officer, Appellate. Assistant Commissioner or Commissioner, as the case may be, may, in lieu cf p3yment of B the refund, set off the amount to be refunded, or any part of that amount against the tax, interest or penalty, if any, remaining p1yable by the person to whom the refund is due.\" Un the face of this provision, tbere is no doubt that this section is not subject to any other provision of law. But it will C be surprising if this power can be exercised in such a way as to defeat the provisions of the Indian Companies Act. It is not denied by the learned Additional Solicitor-General that the State has no priority in respect of this claim. The question then arises whether s. 49E is subject to the Insolvency Rules contained in the Companies Act. Section 228 of the Companies Act, 1913, provides: D\n\n\"228. Debts of all descriptions to be proved.- In every winding up (subject in the case of insolvent companies to the application in accordance with the provisions of this Act of the law of insolvency) all debts payable on a contingency, and all cla.ims against the company, present or future, certain or contingent, shall be admissible to proof against the company, a just estimate being made, so far as possible, of the value of such debts or claims as may be subject to any contingency or for some other rson do not bear a certain value.\"\n\nSection 229 provides:\n\n\"Applis;:ation of insolvency rules in winding up of insolvent companies.- In the winding up of an insolvent company the same\n\nrules shall prevail and be observed with regard to the G respective rights of secured and unsecured creditors and to debate provable and to the valuation of annuities and future and contingent liabilities as are in force for the time being under the law of insolvency with respect to the estates of persons adjudged insolvent; and all persons who in any such case, would be entitled to prove for H and receive dividends out of the assets of the company may come in under the winding up, and make such claims against the company as they respectively are entitled to by virtue of this section.\"\n\nThe effect of these stattttory provisions is, inter alia, that an unsecured creditor must prove his debts and all unsecured debts\n\nUNION OF INDIA V. INDIA FISHERIES (Sikri, J.) 683\n\nare to be paid pari passu. Therefore, once the claim of the Department bas to be proved and is proved in the liquidation proceedings, the Department cannot by exercising the right under s. 49E of the Income Tax Act get priority over the other unsecured creditors.\n\nIf we were to read s. 49E in the way suggested by the learned Additional Solicitor-General, it would be defeating the very object underlying ss. 228 and 229 of the Companies Act, 1913. If there is an apparent conflict between two independant provisions of law, the special provision must prevail. Section 49E is a general provision applicable to all assessees and in all circumstances; ss. 228 and 229 deal with the proof of debts and their payment in liquidation. In our opinion, s. 49E can be reconciled with ss. 228 and 229 by holding thats. 49E applies when insolvency rules do not apply.\n\nAccordingly, agreeing with the High Court, we hold that the Income Tax Officer was in error in applying s. 49E and setting ofli the refund due. The Commissioner was equally in error in affirming this order.\n\nThe learned Additional Solicitor-General also urged that the application under art. 226 was misconceived because the Income Tax Officer had jurisdiction. But if we interpret s. 49E as we have done, it is a clear case of lack of jurisdiction. At any rate, there is an error apparent on the face of the orders and the High Court was quite right in exercising its jurisdiction under Art. 226.\n\nThe appeal is accordingly dismissed with costs.\n\nAppeal dismissed.\n\nLjP(D ).'iSC r-5", "total_entities": 68, "entities": [{"text": "UNION OF INDIA AND ANR", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA AND ANR", "offset_not_found": false}}, {"text": "INDIA FISHERIES (P) LTD", "label": "RESPONDENT", "start_char": 28, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "INDIA FISHERIES (P) LTD", "offset_not_found": false}}, {"text": "April 9, 1965", "label": "DATE", "start_char": 54, "end_char": 67, "source": "ner", "metadata": {"in_sentence": "April 9, 1965\n\n[K. SUBBA RAO, J. C. SHAH AND S. M. SIKRI, JJ.]"}}, {"text": "K. 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SIKRI", "offset_not_found": false}}, {"text": "Incqme Tax Act 1922", "label": "STATUTE", "start_char": 118, "end_char": 137, "source": "regex", "metadata": {}}, {"text": "s. 49E", "label": "PROVISION", "start_char": 139, "end_char": 145, "source": "regex", "metadata": {"linked_statute_text": "Incqme Tax Act 1922", "statute": "Incqme Tax Act 1922"}}, {"text": "ss. 228 and 229", "label": "PROVISION", "start_char": 309, "end_char": 324, "source": "regex", "metadata": {"linked_statute_text": "Incqme Tax Act 1922", "statute": "Incqme Tax Act 1922"}}, {"text": "Companies Act, 1913", "label": "STATUTE", "start_char": 332, "end_char": 351, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 49E", "label": "PROVISION", "start_char": 1270, "end_char": 1276, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1913", "statute": "the Companies Act, 1913"}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 1284, "end_char": 1304, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1531, "end_char": 1539, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "s. 49E", "label": "PROVISION", "start_char": 2112, "end_char": 2118, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "s. 49E and 8", "label": "PROVISION", "start_char": 2353, "end_char": 2365, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 228 and 229", "label": "PROVISION", "start_char": 2434, "end_char": 2449, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act, 1913", "label": "STATUTE", "start_char": 2457, "end_char": 2476, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 223", "label": "PROVISION", "start_char": 2883, "end_char": 2890, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1913", "statute": "the Companies Act, 1913"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 2909, "end_char": 2922, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 49E", "label": "PROVISION", "start_char": 3060, "end_char": 3071, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1913", "statute": "the Companies Act, 1913"}}, {"text": "ss. 228 and 229", "label": "PROVISION", "start_char": 3153, "end_char": 3168, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1913", "statute": "the Companies Act, 1913"}}, {"text": "Section 49E", "label": "PROVISION", "start_char": 3229, "end_char": 3240, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1913", "statute": "the Companies Act, 1913"}}, {"text": "ss. 228 and 229", "label": "PROVISION", "start_char": 3264, "end_char": 3279, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1913", "statute": "the Companies Act, 1913"}}, {"text": "Niren De", "label": "LAWYER", "start_char": 3579, "end_char": 3587, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor General, R'."}}, {"text": "R'. Ganapathy Iyer", "label": "LAWYER", "start_char": 3619, "end_char": 3637, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor General, R'."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3642, "end_char": 3656, "source": "ner", "metadata": {"in_sentence": "Ganapathy Iyer and R. N. Sachthey, for the appellants."}}, {"text": "A. V. Viswanatha Sastri", "label": "JUDGE", "start_char": 3680, "end_char": 3703, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, T. A. Ramachandran, J. B. Dadachanji, 0."}}, {"text": "T. A. Ramachandran", "label": "JUDGE", "start_char": 3705, "end_char": 3723, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, T. A. Ramachandran, J. B. Dadachanji, 0."}}, {"text": "B. Dadachanji", "label": "LAWYER", "start_char": 3728, "end_char": 3741, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, T. A. Ramachandran, J. B. Dadachanji, 0."}}, {"text": ". C. Mathur", "label": "LAWYER", "start_char": 3744, "end_char": 3755, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, T. A. Ramachandran, J. B. Dadachanji, 0."}}, {"text": "llavinder Narain", "label": "LAWYER", "start_char": 3760, "end_char": 3776, "source": "ner", "metadata": {"in_sentence": "C. Mathur and llavinder Narain, for the respondents..\n\nD The Judgment of the Court was delivered by Sikri, J. This appeal is in pursuant to a certificate ()f fitness granted by the High Court of Maharashtra at Bombay under Art."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 3846, "end_char": 3851, "source": "ner", "metadata": {"in_sentence": "C. Mathur and llavinder Narain, for the respondents..\n\nD The Judgment of the Court was delivered by Sikri, J. This appeal is in pursuant to a certificate ()f fitness granted by the High Court of Maharashtra at Bombay under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 4082, "end_char": 4090, "source": "regex", "metadata": {"statute": null}}, {"text": "lndia Fisheries (P) Ltd.", "label": "ORG", "start_char": 4145, "end_char": 4169, "source": "ner", "metadata": {"in_sentence": "The lndia Fisheries (P) Ltd. hereinafter called the respon• dent was a private limited company and."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 4289, "end_char": 4306, "source": "ner", "metadata": {"in_sentence": "was directed to be wound- Dp by an order of the Bombay High Court, dated October II, 1950, and a Court Liquidator was appointed as the Official Liquidator F thereof with all powers under s. 179 of the Indian Companies Act, 1913 <VII of 1913) to be exercised by him under s. 180 without sanction or intervention of the Court save and except in case of sa!es of immovable property belonging to the respondent."}}, {"text": "October II, 1950", "label": "DATE", "start_char": 4314, "end_char": 4330, "source": "ner", "metadata": {"in_sentence": "was directed to be wound- Dp by an order of the Bombay High Court, dated October II, 1950, and a Court Liquidator was appointed as the Official Liquidator F thereof with all powers under s. 179 of the Indian Companies Act, 1913 <VII of 1913) to be exercised by him under s. 180 without sanction or intervention of the Court save and except in case of sa!es of immovable property belonging to the respondent."}}, {"text": "s. 179", "label": "PROVISION", "start_char": 4428, "end_char": 4434, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 4442, "end_char": 4468, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 180", "label": "PROVISION", "start_char": 4512, "end_char": 4518, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "April 2,\n\n1952", "label": "DATE", "start_char": 4980, "end_char": 4994, "source": "ner", "metadata": {"in_sentence": "That claim was adjudged and allowed as an ordinary claim and certified as such on April 2,\n\n1952."}}, {"text": "June 22, 1954", "label": "DATE", "start_char": 5413, "end_char": 5426, "source": "ner", "metadata": {"in_sentence": "For the year 1955-56, the Department made a demand from the respondent on June 22, 1954, for a sum of Rs."}}, {"text": "s. 49E", "label": "PROVISION", "start_char": 6327, "end_char": 6333, "source": "regex", "metadata": {"statute": null}}, {"text": "November 25, 1959", "label": "DATE", "start_char": 6361, "end_char": 6378, "source": "ner", "metadata": {"in_sentence": "On November 25, 1959, the respondent filed a petition under art."}}, {"text": "art. 226", "label": "PROVISION", "start_char": 6418, "end_char": 6426, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 49E", "label": "PROVISION", "start_char": 7463, "end_char": 7474, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 49E", "label": "PROVISION", "start_char": 7542, "end_char": 7553, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 48", "label": "PROVISION", "start_char": 8164, "end_char": 8169, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 49E", "label": "PROVISION", "start_char": 8277, "end_char": 8283, "source": "regex", "metadata": {"statute": null}}, {"text": "says that the Companies Act", "label": "STATUTE", "start_char": 8562, "end_char": 8589, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 49E", "label": "PROVISION", "start_char": 8645, "end_char": 8656, "source": "regex", "metadata": {"linked_statute_text": "He says that the Companies Act", "statute": "He says that the Companies Act"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 9311, "end_char": 9324, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 49E", "label": "PROVISION", "start_char": 9477, "end_char": 9483, "source": "regex", "metadata": {"linked_statute_text": "But it will C be surprising if this power can be exercised in such a way as to defeat the provisions of the Indian Companies Act", "statute": "But it will C be surprising if this power can be exercised in such a way as to defeat the provisions of the Indian Companies Act"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 9536, "end_char": 9549, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 228", "label": "PROVISION", "start_char": 9551, "end_char": 9562, "source": "regex", "metadata": {"linked_statute_text": "But it will C be surprising if this power can be exercised in such a way as to defeat the provisions of the Indian Companies Act", "statute": "But it will C be surprising if this power can be exercised in such a way as to defeat the provisions of the Indian Companies Act"}}, {"text": "Companies Act, 1913", "label": "STATUTE", "start_char": 9570, "end_char": 9589, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 229", "label": "PROVISION", "start_char": 10147, "end_char": 10158, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1913", "statute": "the Companies Act, 1913"}}, {"text": "s. 49E", "label": "PROVISION", "start_char": 11258, "end_char": 11264, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 49E", "label": "PROVISION", "start_char": 11356, "end_char": 11362, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 228 and 229", "label": "PROVISION", "start_char": 11478, "end_char": 11493, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act, 1913", "label": "STATUTE", "start_char": 11501, "end_char": 11520, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 49E", "label": "PROVISION", "start_char": 11634, "end_char": 11645, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1913", "statute": "the Companies Act, 1913"}}, {"text": "ss. 228 and 229", "label": "PROVISION", "start_char": 11723, "end_char": 11738, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1913", "statute": "the Companies Act, 1913"}}, {"text": "s. 49E", "label": "PROVISION", "start_char": 11818, "end_char": 11824, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1913", "statute": "the Companies Act, 1913"}}, {"text": "ss. 228 and 229", "label": "PROVISION", "start_char": 11848, "end_char": 11863, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1913", "statute": "the Companies Act, 1913"}}, {"text": "s. 49E", "label": "PROVISION", "start_char": 12035, "end_char": 12041, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1913", "statute": "the Companies Act, 1913"}}, {"text": "art. 226", "label": "PROVISION", "start_char": 12218, "end_char": 12226, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1913", "statute": "the Companies Act, 1913"}}, {"text": "s. 49E", "label": "PROVISION", "start_char": 12313, "end_char": 12319, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1913", "statute": "the Companies Act, 1913"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 12519, "end_char": 12527, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1913", "statute": "the Companies Act, 1913"}}]}
{"document_id": "1965_3_684_691_EN", "year": 1965, "text": "COMMISSIONER OF INCOME-TAX, PUN.JAB, .JAMMU &\n\nKASHMIR, IDMACHAL PRADESH, PATIALA\n\nRAGHBIR SINGH\n\nApril 9, 1965\n\n[K. SUBBA RAO, J.C. SHAH ANDS. M. SIKRI, JJ.]\n\nIndian Income-tax Act, 1922 (11 of 1922), s. 16(1)(c)-Deed of trust-Trustees directed to pay debts of settlor and only thereafter\n\nto apply trust income and property to the various purposes of the trust-Such direction whether makes trust revocable-Whether pro- C perty of trust indirectly re-transferred to the settlor-Income from trust whether to be ta.ied in hands of settlor.\n\nThe respondent executed a deed of trust in respect of certain shares owned by him in a company. The deed directed the trustees to apply the income and property of the trust in the first instance for paying off the settlor's debts, and thereafter for other purposes of the trust. fo proceedings under the Indian Inome-tax Act, 1922 n it was held by the Income-tax Officer that the trust was a fictitious transaction. The Appellate Assistant Commissioner held that the transfer of the shares for the purpose of the trust Vl'llS not irrevocable and therefore under the proviso to s. 16(l)(c) the respondent could not escape liability. The Tribunal upheld the order of the Assistant Commissioner but referred to the High Court, inter alia, the question whether the income from tl).e trust property ccmld be taxed E in the hands of the assessee. The High Court answered the question in the negative. The Commisoioner of Income-tax, appealed to this Court.\n\nHELD: After the execution of the deed of settlement the income from the shares arose to the trustees and was liable to be applied for the purposes mentioned in the deed. The income had first to be applied for satisfaction of debts which the settlor was under an F obligation to pay, but this did not amount to a re-transfer of the income or assets to the settlor, nor did it invest the settlor with a power to re-assume the income or assets. The assests and the income were unmistakably impressed with the obligations arising out of the trust. The settlor certainly obtained a benefit from the trust consequent upon the satisfaction of his liability, but on that account the first proviso to s. 16(1) was not attracted. [690D-F] G The proviso contemplates cases in ~\"ihich there is a provision for retransfer of the income or assets and such provision is for retransfer directly or indirectly. It also contemplates cases where there is a provision which confers a right upon the settler to reas• sume power over the income or assets directly or indirectly. It is the provision for retransfer directly or indirectly of income or assets or for reassurnption of power directly, or indirectly over income or H. assets which brings the case within the proviso. Cases in which there is a settlement, but there is no provision in the settlement for retransfer or right to reassume power do not fall within the proviso, even if as a result of the settlement, the settler obtains some benefit.\n\n[690G, HJ Ramji, Keshavji v. C.I.T. Bombay, [1945] 13 I.T.R. 105 and D. R.\n\nShahapura v. C.I.T., Bombay 14, I.T.R. 781 approved. 684\n\nC.I.T. V. ItAGHBIB SINGH (Shah,_ J.) 685\n\nA CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 96 to 98. of 1964.\n\nAppeals by special leave from the judgtl\\ents and orders dated September 22, 1960, and December 6, 1960 of the Punjab High Court in Income-tax References Nos. 19 of 1958 and 6 of 1959 B respectively.\n\nS. V. Gupte, Solicitor-General, R. Ganapathy Iyer and R. N.\n\nSachthey, for the appellant.\n\nDeva Singh Randhawa and Harbans Singh, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nShah, J. On April 10, 1953 the estate of the joint Hindu family of which the respondent was a member was partitioned, and the respondent was allotted, besides other properties, 400 shares of the Simbhaoli Sugar Mills Private Ltd., and was made liable to pay a business debt amounting to Rs. 3,91,875/- due by the family to R. B. Seth Jessa. Ram Fateh Chand of Delhi.\n\nOn April 14, 1953 the respondent executed a deed of trust in respect of 300 out of the shares of the Simbhaoli Sugar Mills which fell to his share. The following are the material. provisions of the deed of trust:\n\n\"AND WHEREAS on partition, the author was allotted amongst other properties, four hundred shares of the Simbhaoli Sugar Mills Ltd., and fixed with liability for discharge of certain debts of the Joint Hindu Family AND WHEREAS for discharge of the debts detailed in the schedule appearing hereafter, the author now as absolute owner of the said shares has decided lo settle on trust three hundred shares numbering 1 to 300 both inclusive, out of the said shares for the benefit of his creditors and other beneficiaries named hereafter and for the objects mentioned hereafter.\n\n2. The author as holder of 300 shares out of the capital of Simbhaoli Sugar Mills Ltd. divesting himself of all proprietary rights in the said shares, hereby declares that the said shares shall from this day be irrevocably held on Trust by the .Trustees to be used b.y them for all or any of the purposes following, that is to say:-\n\n(a) To pay off the debts as detailed in Schedule 'A' attached hereto: These debts were incurred for the benefit of the Joint Hindu Family of the author and .n disruption of the Joint Hindu Family and partitwn of properties among its members, made payable by the author.\n\nSUPREME VOURT REPORTS [1965] 3 s.c.a.\n\nAnd after his debts are P'.tid oil A\n\n(b) To provide for the maintenance and education of the children and grand children of the author.\n\n(c) To open and run Hospitals and Nursing Homes.\n\n(d) To open and run School or Schools for the educa'\n\ntion of boys or girls in scientific and technical sub- B jects.\n\n(e) To open and maintain a reading room and a lending library.\n\n(f) To provide for the maintenance and education of orphans, widows and poor people and for that e; to give Scholarships for inland and overseas studies to found orphanage, widow houses and poor houses and to do all other things that the trustees may deem fit for carrying out the objects of the Trust.\"\n\nBy cl. 3 four persons includin~ tJ,~ respondent were appointed D trustees, and the respondent was to hold the office of Chairman of the Trust during his lifetime. The trust deed then provided:\n\n\"Jn the books of the Company, the shares .will stand in the name of the Chairman for the time being, who will have the power to operate the Bank accounts of the Trust, to E preside at the meetings, exercise the right of the vote in respect of the shares of the Trust.\"\n\nClause 5 provided:\n\n\"It is hereby declared that the trustees shall have the following powers in addition to the powers and the authori- F ties hereinfore contained: -\n\n(i) The trustees shall not be entitled to sell the shares except as provided hereafter but they can mortgage or pledge the same for raising funds as they may feel necessary for paying off the debts of the author, provided G (ii)\n\n(iii) (iv)\n\nClause 6 provided:\n\n\"That in carrying out the objects of th~ trust the trustees shall keep in mind and abide by the following directions:-\n\n(i) The payment of the debts of the author as deailed\n\nin Schedule 'A' referred to above shall receive the topmost priority and the trustees shall not spend any money out of the trust pror, rty or \\ts income\n\nC, I, T. V. RAGHllIR ~INGH (Shah, J.) 687\n\nin any direction till they have paid off all the deb~ of the author, provided always if the trustees are unable to pay off the debts, out of the income i.e. dividends, bonuses 'etc. of the shares within a period of ten years they shall be entitled to sell the same or part of it and thus pay off the debts that may be due at that time.\n\n(ii) After debts are discharged the trustees shall spend\n\n80 % of the income of the trust property, remaining in their hands after full discharge of the debts, on the maintenance of the children and grand children of the author and the remaining 20%\n\non all or any of the other objects of the trust as the Trustees may think best. (iii) \"\n\nThe respondent claimed before the Income-tax Officer, Eward, Amritsar that the dividend received by the trustees in respect J> of 300 shares of the Simbhaoli Sugar Mills was the income of the Trust and that he had no concern with that income as he had \"divested himself irrevocably of the ownership of the shares\" and that in any event Rs. 19,856/- being the amount due as interest to R. B. Seth Jessa Ram Fateh Chand should be allowed as a permissible deduction in computing the net income from dividend E of the shares. The Income-tax Officer rejected the contentions of the respondent, holding that the Trust was a \"fictitious transac- . ti on\". the Appellate Assistant Commissioner held that the respondent had not \"irrevocably transferred the 300 shares of the Simbhaoli Sugar Mills\" and therefore by virtue of s. 16(l)(c) proviso one the respondent could not escape liability to pay tax on the F dividend from the share.\n\nThe respondent appealed to the Income-tax Appellate Tribunal, but without success.\n\nAt the instance of the respondent the Tribunal drew up a statement of the case and referred the following questions to the High Court at Chandigarh:\n\n\"(!) Whether the dividend income of 300 shares of the\n\nSimbhaoli Sugar Mills, Private Ltd. transferred by the assessee to S. Raghbir Singh Trust was the income of the assessee liable to tax?\n\n(2) Whether the assessee was entitled to claim deduction of Rs. 19,856/- paid as interest to R. B. Seth Jessa Ram Fateh Chand against the dividend income of the aforesaid 300 shares?\" The High Court answered the first question in the negative and declined to answer the secon.d question.\n\nWith special leav~ •. the Commissioner of Income-tax has appealed to this Court.\n\nSection 2 sub-s. (15) defines \"total income\" as meaning total arn ount of income, profits and gains referred to in sub-s. (!) of s. 4\n\nSUPREME COURT REPORTS [1965] 3 s.c.R.\n\ncomputed in the manner laid down in the Act. Section 16 of the A Income-tax Act enumerates the exemptions and exclusiollS admissible in the computation.of total income in certain specified cases.\n\nThe material part of cl. (c) of sub-s. (!)of s. 16 is as follows:\n\n\"In computing the total income of the assessee-\n\n(c) all income arising to any person by virtue of a B settlement or disposition whether revocable or not, and whether effected before or after the commencement of the Indian Income-tax (Amendment) Act, 1939 (VII of 1939), from assets remaining the property of the settlor or disponer, shall be deemed c to be income of the settlor or disponer, and all income arising to any person by virtue of a revocable transfer of assets shall be deemed to be income of the transferor :\n\nProvided that for the purposes of this clause a settle\n\nment, disposition or transfer shall be deemed to D be revocable if it contains any provision for the retransfer directly or indirectly of the income or assets to the settlor, disponer or transferor, or in any way gives the settler, disponer or transferor a right to reassume power directly or indirectly over the income or assets : E\n\nProvided further that the expression 'settlement or disposition' shall for the purposes of this clause include any disposition, trust, covenant, agreement or arrangement, and the expression 'settlor or disponer' in relation to a settlement or disposition F shall include any person by whom the settlement or disposition was made:\n\nProvided further that this clause shall not apply to any income arising to any person by virtue of a settlement or disposition which is not revocable for a period exceeding six years or during the lifetime of the person and from which income the settlor or disponer derives no direct or indirect benefit but that the settlor shall be liable to be assessed. on the said incomeas and when the power to revoke arises to him.\"\n\nClause (c) was intended, while seeking to protect a genuine settlement by which the tax-payer intends to part with control ove~ property and its income, to cirumvent attempts made y him to reduce his liability to pay mcome-tax by the expedient of so arranging a settlement or disposition of property that te incoe does not accrue to him, but he reserves a power over or mterest m tho property settled or disposed of, or in the income thereof. By cl.\n\nc.I.'l'. 'I'. l<AGl!Bm '''\"11 (Sliali, J.) 689\n\n~ A\n\n(c) income arising to any person by virtue of a settlement or disposition whether revocable or not is .deemed to be income of the settlor or disponer if the assets remain the property of the latter.\n\nAgain income arising to any person by virtue of a revocable transfer of assets is deemed to be the income of the transferor. The first proviso then deems a settlement statutorily revocable, if it .B contains any provision for retransfer directly or indirectly of the income or assets settled, to the settlor, or where it gives to the settlor a right to reassume power directly or indirectly over the income or assets.\n\nBy the second proviso the expression \"settlement or disposition\" includes a disposition, trust, covenant, agreeinent or arrangement the Legislature has thereby sought to bring C within the net, transactions sirnilai to though not strictly within the description of settlements and dispositions. The third proviso carves out from the amplitude of cl. (c) as expounded by the fit and the second provisos income arising to any person from a settlement which is not revocable for a period exceeding sill years or during the lifetime of the person and from which income the D settlor derives no benefit direct or indirect.\n\nIt was observed in a recent judgment of this Court: Commissioner of Income-tax, Bihar and Orissa v. Rani Bhuwaneshwari K uer(') that: \"By the first proviso, settlements, dispositions or transfers of the character described therein, are deemed revocable for the purpose of the principal clause. The function of proviso I and proviso 2 is plainly explanatory.\n\nThe second proviso in terms says that the expression \"settlement or disposition\" is to include any disposition, trust, covenant, agreement or arrangement, and the P.Xpression \"settlor or disponer\" is to include any person by whom the settlement or disposition was made. Similarly the first proviso states that. settlements, dispositions or transfers, if they are of the character described, shall for the purpose of the principal clause be revocable transfers.\"\n\nThe terms of s. l 6(l)(c) first proviso are reasonably plain. A settlement or disposition is deemed to be statutorily revocable if there is a provision therein for retransfer of the income or assets or which confers a right to reassume power over the income or assets. The provision may even be for retransfer indirectly or for conferring power to reassume indirectly over the income or the assets.\n\nBut the actual retransfer or exercise of the power to reassume is not necessary; if there be a provision of the nature contem]illated,. the proviso operates.\n\nThe terms of the deed may now be examined. The shares were settled upon trust, and four trustees one of whom was the respondent were appointed. Genuineness of the trust is no longer\n\n(') ~3 l.T.R. 19~. 29~.\n\nSUPRF.?.1F. COURT REPORTS\n\n[1965] 3 S.C.R.\n\nin dispute.\n\nThe direction that the shares are to stand in the name A of the Chairman for the time being appears to have been necessitated bys. 33 of the Indian Companies Act, 1913 which prevented notice of any trust, expressed, implied or constructive to be entered on the register.\n\nThe deed recites that the shares are to be held on trust irrevocably by the trustees for all or any of the purposes mentioned therein.\n\nThe purpose for which the shares are B to be held in the first instance is to pay ofI the debt due to R. B.\n\nSeth Jessa Ram Fateh Chand, and it is only after the debt is paid off that the directions in els. (b) to m of cl. 2 come into operation.\n\nThe deed is in terms. expressly irrevocable, but on that account the operation of the first proviso is not excluded. If by the direction for application of the income for satisfaction of the debts due C by the respundcnl, it could be said in law that there is a provision for retransfer directly or indirectly of the income or a right to reassume directly or indirectly power over the income, the settlement would be deemed revocable, recital that it is irrevocable notwithstanding.\n\nBut the income from 'the shares since the execution of the deed of settlement arises t0 the trustees and it .is liable to be applied for the purposes mentioned in the deed.\n\nThe income has to be applied for satisfaction of debts which the settlor was under an obligation to discharge, but that is not to say that there is a provision\n\nfor retransfer of the income or assets to the settlor, or that the E settlor is invested with power to reassume the income or assets.\n\nThe assets and the income are unmistakably impressed with the obligations arising out of the deed of trust. The settlor it is true obtains a benefit from the trust consequent upon satisfaction of his liability, but on that account the first proviso is not attracted.\n\nWe are unable to accept the argument of counsel for the revenue that by the use of the expression \"indirectly\" in the first proviso the Legislature sought to bring within the purview of cl.\n\n(c) cases where the settler was under the guise of a trust see1'ing to discharge his own liability. The proviso contemplates cases in which there is a provision for retransfer of the income or assets G and such provision is for retransfer directly or indirectly. It also\n\ncontemplats cases where there is a provision which confers a right upon the settlor to reassume power over the income or assets directly or indirectly. It is the provision for retransfer directly or indirectly of income or assets or for reassumption of power directly or indirectly over income or assets which brings the case within H the first proviso. Cases in which there is a settlement, but there is no provision in the settlement for retransfer or right to reassume power do not fall within the proviso, even if as a result of the settlement,- the settler obtains a benefit.\n\n[t has been held in two cases decided 'by the High Court of Born.Day that a person under an obligation arising out of his status\n\nC.l.T. t1• JtAtilf'nll< :-;1:Kt:11 (Shah, .J.) 691\n\nA may execute 1_1 trust to discharge his own obligation without attracting the operation of s. l5(l)(cl.\n\nIn Ramii Kesliavii v. Cmnmissin11er nf /11cnme-tax, Bombay(') under a consent decree. the assessee executed a deed of trust conveying certain properties for the benefit of his wife to the trustees.\n\nThe deed provided that the net income from the properties shall be paid to the assessee's wife B during her lifetime and that she shall maintain her minor children by the assessce anJ \"run the household\". It was held by the High Court that the income derived from the trust property and payable to the assessee's wife during her lifetime could not be deemed to be the assessee's income. for the direction in the deed did not amount to a provision for retransfer of the income or assets or for C reassumption of power directly or indirectly over income or assets within the meaning of the first proviso to s. l6(1)(c). In D. R.\n\nShahapure v. Commissioner of Income-tax, Bombay(') the assesseewith the object of making a provision for his w_ife made an entry in his business books of account crediting Rs. 20.000/-, and endorsed against the entry. \"The capital supplied to you will remain D entirely mine but you will ge: the income over it up to the end of your life. This capital I will not take back up to the end of your life but I will do business for you on this capital and see that you get Rs. 600 per annum for you\".\n\nNo specific assets were set apart to meet the sum of Rs. 20,000/- and there were. no other entries in the books with regard to it.\n\nThe High Court held that the entry E was an irrevocable covenant to pay the income accruing on Rs. 20,000/- with a guarantee that it shall be Rs. 600 a year, and therefore the case was covered by the third proviso to s. 16(1) (c) of the Act and the income which was paid to the wife under the covenant could not be deemed to be tre income of the ssessee\n\nunder the first part of s. 16(l)(c). In our view these cases were F correctly decided.\n\nThe appeals fail and are dismissed with costs. One hearing fee.\n\nAppeals dismissed ..\n\n(') (19'11) 13 I.T.R. 105.\n\n(') H I.T.R. 781.", "total_entities": 42, "entities": [{"text": "COMMISSIONER OF INCOME-TAX, PUN.JAB, .JAMMU &\n\nKASHMIR, IDMACHAL PRADESH, PATIALA", "label": "PETITIONER", "start_char": 0, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, PUNJAB, .JAMMU & KASHMIR, HIMACHAL PRADESH, PATIALA", "offset_not_found": false}}, {"text": "RAGHBIR SINGH", "label": "RESPONDENT", "start_char": 83, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "RAGHBIR SINGH", "offset_not_found": false}}, {"text": "April 9, 1965", "label": "DATE", "start_char": 98, "end_char": 111, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF INCOME-TAX, PUN.JAB, .JAMMU &\n\nKASHMIR, IDMACHAL PRADESH, PATIALA\n\nRAGHBIR SINGH\n\nApril 9, 1965\n\n[K. SUBBA RAO, J.C. SHAH ANDS."}}, {"text": "K. SUBBA RAO, J", "label": "JUDGE", "start_char": 114, "end_char": 129, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH ANDS. M. SIKRI, JJ.", "label": "JUDGE", "start_char": 130, "end_char": 157, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 160, "end_char": 187, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 16(1)(c)", "label": "PROVISION", "start_char": 202, "end_char": 213, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-tax Act, 1922", "statute": "Indian Income-tax Act, 1922"}}, {"text": "Indian Inome-tax Act, 1922", "label": "STATUTE", "start_char": 844, "end_char": 870, "source": "regex", "metadata": {}}, {"text": "s. 16(l)(c)", "label": "PROVISION", "start_char": 1117, "end_char": 1128, "source": "regex", "metadata": {"linked_statute_text": "the Indian Inome-tax Act, 1922", "statute": "the Indian Inome-tax Act, 1922"}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 2184, "end_char": 2192, "source": "regex", "metadata": {"statute": null}}, {"text": "C.I.T. V. ItAGHBIB SINGH", "label": "JUDGE", "start_char": 3112, "end_char": 3136, "source": "ner", "metadata": {"in_sentence": "684\n\nC.I.T. V. ItAGHBIB SINGH (Shah,_ J.) 685\n\nA CIVIL APPELLATE JURISDICTION: Civil Appeals Nos."}}, {"text": "S. V. Gupte", "label": "OTHER_PERSON", "start_char": 3426, "end_char": 3437, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-General, R. Ganapathy Iyer and R. N.\n\nSachthey, for the appellant."}}, {"text": "R. Ganapathy Iyer", "label": "LAWYER", "start_char": 3458, "end_char": 3475, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-General, R. Ganapathy Iyer and R. N.\n\nSachthey, for the appellant."}}, {"text": "Deva Singh Randhawa", "label": "LAWYER", "start_char": 3517, "end_char": 3536, "source": "ner", "metadata": {"in_sentence": "Deva Singh Randhawa and Harbans Singh, for the respondent."}}, {"text": "Harbans Singh", "label": "LAWYER", "start_char": 3541, "end_char": 3554, "source": "ner", "metadata": {"in_sentence": "Deva Singh Randhawa and Harbans Singh, for the respondent."}}, {"text": "Shah", "label": "JUDGE", "start_char": 3621, "end_char": 3625, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. On April 10, 1953 the estate of the joint Hindu family of which the respondent was a member was partitioned, and the respondent was allotted, besides other properties, 400 shares of the Simbhaoli Sugar Mills Private Ltd., and was made liable to pay a business debt amounting to Rs."}}, {"text": "Simbhaoli Sugar Mills Private Ltd.", "label": "ORG", "start_char": 3816, "end_char": 3850, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. On April 10, 1953 the estate of the joint Hindu family of which the respondent was a member was partitioned, and the respondent was allotted, besides other properties, 400 shares of the Simbhaoli Sugar Mills Private Ltd., and was made liable to pay a business debt amounting to Rs."}}, {"text": "R. B. Seth Jessa. Ram Fateh Chand", "label": "OTHER_PERSON", "start_char": 3944, "end_char": 3977, "source": "ner", "metadata": {"in_sentence": "3,91,875/- due by the family to R. B. Seth Jessa.", "canonical_name": "R. B. Seth Jessa. Ram Fateh Chand"}}, {"text": "Delhi", "label": "GPE", "start_char": 3981, "end_char": 3986, "source": "ner", "metadata": {"in_sentence": "Ram Fateh Chand of Delhi."}}, {"text": "April 14, 1953", "label": "DATE", "start_char": 3992, "end_char": 4006, "source": "ner", "metadata": {"in_sentence": "On April 14, 1953 the respondent executed a deed of trust in respect of 300 out of the shares of the Simbhaoli Sugar Mills which fell to his share."}}, {"text": "Simbhaoli Sugar Mills", "label": "ORG", "start_char": 4090, "end_char": 4111, "source": "ner", "metadata": {"in_sentence": "On April 14, 1953 the respondent executed a deed of trust in respect of 300 out of the shares of the Simbhaoli Sugar Mills which fell to his share."}}, {"text": "Simbhaoli Sugar Mills Ltd.", "label": "ORG", "start_char": 4307, "end_char": 4333, "source": "ner", "metadata": {"in_sentence": "provisions of the deed of trust:\n\n\"AND WHEREAS on partition, the author was allotted amongst other properties, four hundred shares of the Simbhaoli Sugar Mills Ltd., and fixed with liability for discharge of certain debts of the Joint Hindu Family AND WHEREAS for discharge of the debts detailed in the schedule appearing hereafter, the author now as absolute owner of the said shares has decided lo settle on trust three hundred shares numbering 1 to 300 both inclusive, out of the said shares for the benefit of his creditors and other beneficiaries named hereafter and for the objects mentioned hereafter."}}, {"text": "cl. 3", "label": "PROVISION", "start_char": 6102, "end_char": 6107, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 5", "label": "PROVISION", "start_char": 6563, "end_char": 6571, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 6", "label": "PROVISION", "start_char": 6973, "end_char": 6981, "source": "regex", "metadata": {"statute": null}}, {"text": "T. V. RAGHllIR ~INGH (Shah", "label": "JUDGE", "start_char": 7328, "end_char": 7354, "source": "ner", "metadata": {"in_sentence": "Clause 5 provided:\n\n\"It is hereby declared that the trustees shall have the following powers in addition to the powers and the authori- F ties hereinfore contained: -\n\n(i) The trustees shall not be entitled to sell the shares except as provided hereafter but they can mortgage or pledge the same for raising funds as they may feel necessary for paying off the debts of the author, provided G (ii)\n\n(iii) (iv)\n\nClause 6 provided:\n\n\"That in carrying out the objects of th~ trust the trustees shall keep in mind and abide by the following directions:-\n\n(i) The payment of the debts of the author as deailed\n\nin Schedule 'A' referred to above shall receive the topmost priority and the trustees shall not spend any money out of the trust pror, rty or \\ts income\n\nC, I, T. V. RAGHllIR ~INGH (Shah, J.) 687\n\nin any direction till they have paid off all the deb~ of the author, provided always if the trustees are unable to pay off the debts, out of the income i.e. dividends, bonuses 'etc."}}, {"text": "R. B. Seth Jessa Ram Fateh Chand", "label": "OTHER_PERSON", "start_char": 8427, "end_char": 8459, "source": "ner", "metadata": {"in_sentence": "19,856/- being the amount due as interest to R. B. Seth Jessa Ram Fateh Chand should be allowed as a permissible deduction in computing the net income from dividend E of the shares.", "canonical_name": "R. B. Seth Jessa. Ram Fateh Chand"}}, {"text": "s. 16(l)(c)", "label": "PROVISION", "start_char": 8858, "end_char": 8869, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Appellate Tribunal", "label": "COURT", "start_char": 9001, "end_char": 9030, "source": "ner", "metadata": {"in_sentence": "The respondent appealed to the Income-tax Appellate Tribunal, but without success."}}, {"text": "High Court at Chandigarh", "label": "COURT", "start_char": 9177, "end_char": 9201, "source": "ner", "metadata": {"in_sentence": "At the instance of the respondent the Tribunal drew up a statement of the case and referred the following questions to the High Court at Chandigarh:\n\n\"(!)"}}, {"text": "S. Raghbir Singh Trust", "label": "ORG", "start_char": 9326, "end_char": 9348, "source": "ner", "metadata": {"in_sentence": "Whether the dividend income of 300 shares of the\n\nSimbhaoli Sugar Mills, Private Ltd. transferred by the assessee to S. Raghbir Singh Trust was the income of the assessee liable to tax?"}}, {"text": "Section 2", "label": "PROVISION", "start_char": 9767, "end_char": 9776, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 9896, "end_char": 9900, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 9986, "end_char": 9996, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 10006, "end_char": 10020, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 16", "label": "PROVISION", "start_char": 10183, "end_char": 10188, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 15404, "end_char": 15430, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Seth Jessa Ram Fateh Chand", "label": "OTHER_PERSON", "start_char": 15780, "end_char": 15806, "source": "ner", "metadata": {"in_sentence": "The purpose for which the shares are B to be held in the first instance is to pay ofI the debt due to R. B.\n\nSeth Jessa Ram Fateh Chand, and it is only after the debt is paid off that the directions in els. ("}}, {"text": "cl. 2", "label": "PROVISION", "start_char": 15890, "end_char": 15895, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "High Court of Born.Day", "label": "COURT", "start_char": 18231, "end_char": 18253, "source": "ner", "metadata": {"in_sentence": "[t has been held in two cases decided 'by the High Court of Born."}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 20146, "end_char": 20154, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(l)(c)", "label": "PROVISION", "start_char": 20308, "end_char": 20319, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1965_3_692_699_EN", "year": 1965, "text": "THE COMMISSIONER OF INCOME-TAX, MADRAS\n\nCHARI AND CHARI LTD.\n\nApril 9, 1965\n\n!K. SUBBA RAO, J. C. SHAH AND S. M. SIKRI, J.J.J\n\n. Income' Tax Act, 1922, s. 10(2)(xv)-Deduct'on claimed by assessee of commission paid to director for special duties-Rate of commission bona fide determined 'by assessee-Whether open to revenue to review such rate.\n\nManaging Agency-Compensation for termination of-Circum- .stance.! in which such compensation is revenue.\n\nThe respondent, a private limited company, carried on business in tol:acco and other commodities and also acted as managing agents for the N company and for two other companies. It had three directors, all oI whom \"\"re paid a fixed remuneration for attending to the business of the company. On June, 21, 1951, the respondent company was appointed an agent of the Central Government for buying, checking, leaf dcying, and retaining and reselling tobacco under, and in accordance with, directions issued from time to time. On June 22, 1951, the respondent passed a resolution placing one of the directors, A, in \"special charge\" of all the work under the contract with the Central Government and agreed to pay him 30 per cent of the net profits from the contract. Under this arrangement, for the year ended 31st March 1952, commission at 30 per cent was calculated and paid to A and was claimed in the assessment year 1952-53 as a permissible deduction under s. 10(2)(xv) of the Income-tax Act,\n\n1922. The Income-tax Officer allowed only 10 per cent of the net pcofit for the services rendered by A and disallowed the balance amount claimed by the respondent.\n\nThe managing agency agreement of the respondent with the N Company was terminated in September 1951, when the State Government acquired the undertaking of that company, and the respoQdent was paid Rs. 17,346 as compensation for premature termination of its agency. This amount \\Vas taken into account by the Income-tax Officer in computng the respondent's income for the year ended March 31, 1952.\n\nAppeals against the order of the Income-tax Officer to the Appellate Asoistant Commissioner and to the Tribunal challenging the disallowance of part of the commission and inclusion of the compensation for termination of the managing agency were unsuccessful. On a reference on both these points, the High Court decided them in the respondent's favour.\n\nHELD: (i) The contract -.vi th the Government was, for 'the respondent, an important contract requiring special attention by a person well acquainted with the practical details of the business.\n\nIf for such special services the management as prudent business men for advancing the interest of respondent bona 'fide regarded 30 per cent o! the net profits as reasonable remW>eration the revenue authorities were not justified in reviewing that opinion'. and reducing the rate of remuneration. [697B, CJ ·\n\n611e\n\nWhere on a consideration of the relevant materials the Appellate Tribual is of the opinion that a particular remuneration is not bona fide or is unreasonable, the High Court, in exercising its advisory 'jurisdiction, has no power to interfere with that opinion; but in the present case, material circumstances relating to the nature of the contract and the special services to be performed were not at all taken into account by the revenue authorities. [697C-E]\n\n(ii) Ordinarily, compensation for loss of office or agency is regarded as a capital receipt; but this rule is subject to an exception that payment received even for termination of an agency agreement, where the agency is one of many which the assessee holds, and the termination of the agency does not impafr the profit-making structure of the assessee, but is within the frame-work of the busiriess, it being a necessary incident of the business that existing agencies may be terminated and fresh agencies may be taken, is revenue and not capital. However, in the absence of evidence as to what effect the determination of the managing agency of the N company had upon the business of the respondent, the mere circumstance that the respondent had managing agencies of two other companies without more would not bring the present case within the exception [698H; 699\n\nA-CJ\n\nKelsal Parsons & Co. v. Co1nmissioners of Inland Re11enue, 21T.C. and Kettlewell Bullen & Co. v. C.I.T. Calcutta, [19641 8 S.C.R. 93 explained and distinguished.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 215 of 1964.\n\nAppeal from the judgment and order dated August 24, 1961 of the Madras High Court in Case referred No. 102 of 1957.\n\nNiren De. Additional Solicitor-General, R. Ganapathy lyer and R. N. Sachthey, for the appellant.\n\nF R. Thiagarajan, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nShah, J. The respondent is a private limited Company. It carried on business in hides and skins, minerals, tobacco and other commodities, and also acted as managing agents for the Nellor Power and Light Company Ltd. and for two other Companies.\n\nT. M. Ayyadurai, T. M. Rangachari and P. C. Chakrabarti were directors of the Company. Each director was paid a fixed remuneration of Rs. 4,800 /- per annum for attending to the business of the Company. On June 21, 1951 the respondent was appointed by the Central Government as its agent for buying, checking, weighing, leaf drying, storing, transporting, retaining and reselling tobacco under and in accordance with the directions issued from time to time.\n\nThe Central Government agreed to pay to the respondent price of the tobacco purchased, charge at the rate of one anna per lb. for tobacco not redried, and at the rate of two annas per lb. for tobacco redried, and commission on all purchases.\n\nOn June 22, 1951 the respondent passed a resolution placing T.M. Ayyadurai in \"gpecial charge\" for arranging purchases of tobacco on credit,\n\n694 Sl; PH.Jo:ME COPH.T ltEPOl1.T.~\n\ninspecting tobacco at Guntur and at Madras Port, and for super- A vising shipment of tobacco. and agreed to pay him 30 per cent of the net profit as remuneration.\n\nUnder the contract with the Government of India Rs. 1,38.454/- became due to the respondent as commission in the account vear ending March 31, 1952. After providing Rs. 41.473/- for expenses, 30 ·-per cent of the balaxe being Rs. 29,094/- was paid to T. M. Ayyadurai as commiss; on B and was claimed in the assessment year 1952-53 as a permissible deduction under s. 10(2)(xvl of the Indian Income-tax /\\cl, I 'J22.\n\nThe Income-tax Officer allowed only l 0 per cent of the net profit for the services rendered by T. M. Ayyadurai in the contract for tobacco purchase and sale, and disallowed Rs. 19,796/- out of the amount claimed by the respondent.\n\nThe managing agency agreement of the respondent with the Nellore Power and Light Company Ltd., was terminated with effect from September 28, 1951 when the Government of the State of Madras in exercise of the power~ conferred upon it by the Electrical Undertakings Acquisition Act, 1949 compulsorily ac- D quired the undert8king of that Company, and the respc'ndent was\n\npaid Rs. 17,346 /- as compensation for premature termination of its agency.\n\nThis amount was taken into account by the Income-tax Officer in computing the income of the respondent in the assessment year c'.ling March 31. 1952.\n\nAppeals against the order passed by the Income-tax Ofticer 10 E the Appellate Assistant Commissioner and to the Tribunal clnllenging the disallowance of part of the commission and inclu:;;,, n of compensation f:Jr termination of the managing agency areemcnt were unsuccessful.\n\nTl\\e Tribunal thereafter being directed by the Higl; Court of F Judicature. Madras under s. 66(2) of the IriJian Income-tax Act, drew up a statement of the case and referred the following two questions to the High Court: -\n\n\"(!) Whether on the facts and in the cirumstaces of the case the disallowance of a sum of R;. 19.796/- out of the re, nuneration paid to Mr. T. M. Ayyad.; rai is justi- G fiable; and\n\n(2) Whether a sum of Rs. 17.346/- which represented com\n\npensation received by the assessec for the loss of the managing agency vf the Nellore Power and Light Company Ltd. is income liable to •ax?\" H\n\nThe High Cc'.!rt c:nswered both the questions in the negative.\n\nAllowance in respect of the amount covered by the first question was sought by the respondent under s. 1012\\(xv) of the Income-tax Act, t 922, which provided:\n\n\"any expenditure not being 'in allowance of the nature described in any. of the clauses (i) tc (xiv) inclusive, and\n\nnot being in the nature of capital expenditure or personal expenses of the assessee laid out or expended whoJly and exclusively for the purpose of such business, profession or vocation.\"\n\nThe questi°'1 whether an amount claimed as expenditure was laid out or expended wholly and exclusively for the purpose of such business, profession or vocation has to be decided on the facts and in the light of circumstances of each case.\n\nBut as observed by this Court in Eastern Investments Ltd. v. Commissioner of lncometax, West Bengal(') the final conclusion on the admissibility of an allowance claimed is one of law. The High Court had therefore power to call upon the Tribunal to submit a statement of the case under s. 66(2) of the Indian Income-tax Act. In considering whether the expenditure to remunerate a person for services rendered is allowable under s. 10(2)(xv) the Income-tax Officer must have regard to all the circumstances, such as, nature and pecial character of the service, practice if any in the trade for payment of a percentage of profit to an employee in similar circumtances, qualifications of the employee for rendering the service. amount if any paid by the assessee to another person for rendering similar service, normalcy of the allowance having regard to the practice in the trade, existence of any other extraordinary and abnormal circumstances in the arrangement or special reasons or circumstances which may suggest that the transaction was abnormal, and the like.\n\nThe normal business of the respondent was in hides and skins, minerals and tobacco. It does not appear, however, that the turnover of the Company was large. The contract to purchase tobacco on behalf of the Government of India was apparently out of the way of the normal business of the respondent and demanded the setting up of a special organisation. Under the terms of the contract the respondent W<l.S to be the agent of the Central Government for buying, checking, weighing, leaf drying, storing, transporting, retaining and reselling tobacco under and in accordance with the directions given to it from time to time by\" the Government. The respondent agreed to bny tobacco within the ceiling price fixed as and when directed by (he Government, and was responsible for buying proper grades of tobacco, for correctly checking the weights, for taking delivery from the sellers, for redrying it whenever so directed, for securing proper packing for transport by rail road or sea so as to conform to standards of packing usually employed in the export of tobacco or standards to the satisfaction of the purchaser, and for getting the tobacco inspected by the Tobacco Grading Inspectorate of the Indian Central Tobacco Committee according to the AGMARK standards. The respondent had to place a godown at the disposal of the Government within their premises at Guntur.\n\nThe ; espondent had to use its best\n\nI') 20 I.'f.R. I.\n\n[ J !llifi j ;; S.( '.I:,\n\nendeavour to buy. as cheaply as possible within the ceilings pres- A cnbed.and to sell it for. such maximum price as may be obtainable, not bcmg below the pnce prescribed by the Government, to re-sell\n\nobacc~ wh i::h the Government may direct it to sell by instructions m wntmg, tn such manner and at such price as may be specified by lhe Government, and to finance the entire transaction of purchasing tobcco in the first instance out of its own funds. The res- B pondcnt was to take all necessary steps to safeguard the stocks and to maintain fire-fighting services. Goods purchased by the respondent 1f not of the grade or quality were liable to be rejected by order of the Tobacco Grading Inspector. Performance of the contract evidently required expert knowledge of the practical side of the business of purchasing tobacco, getting it redried if it was C. raw, and of packing, storing, transporting and shipping it.\n\nThe respondent had enteroo into a profitable contract, but any negligence in purchasing, storing, packing, transporting and shipping the goods might have resulted in serious. losses to the respondent.\n\nThe Income-tax Officer accepted that the expenditure D for payment of remuneration for attending to the contract was laid out for the purpose of the business of the respondent, but reduced the stipulated rate to 10 per cent on two grounds: that T. M. Ayyadurai was the brother of T. M. Rangachari, and that he was, as a director of the Company, bound to attend to all the activities of the Company including the contract.\n\nThere is no evidence that the agreement was motivated by considerations other than strictly business considerations. There is also no evidence that as a director T. M. Ayyadurai was bound to attend to all the activities of the Company including the special contract with the Central Government. The duties which the F directm was bound to perform for earning the remuneration of Rs. 400 /- per month are not on the record, but even in the opinion of the taxing authorities the duties of T: M. Ayyadurai as director did not cover attendance to the contract with the Government.\n\nT. M. Ayyadurai and T. M. Rangachuri are brothers, but that by itself is not sufficient to justify an inference that unreasonable or G excessive remuneration was agreed to be paid. The person who was called upon to attend to a contract of this magnitude was required to have expert knowledg~ of the. busines.s, apply his _ti.me exclusively thereto, travel from !Jme to tJme, mamtam superv1s10n and control at the stag~ of purchase, redrying, packing: transport and Ioadincr for shipment. Presumably T. M. Ayyadura1 was such H a person a\"nd that is why he was selected for earning for the respondent 'a large amount of commission by duly performing the contract.\n\nThe Appellate Assistant Commissioner merely paraphrased the decision of the Income-tax Officer and regarded 10 per cent of the net profits as reasonable. The Appellate Tribunal observed that the Appellate Assistant Commissioner had given \"clear and\n\nc.r:r. t'. 1,,, HAU.I A:'.llU VHAHl (.\"'Jlrtk. J.j !iUT\n\nconvincing reaso.ns in support of the disallowance\" to which they had nothing more to add.\n\nAn analysis of the reasons given by the Income-tax Officer 'discloses 110 grounds to support the view. that remuneration at a rate exceedill'g 10 per G.(:nt of the net profit was excessive or unreasonable. We arc of the view that the\n\ncontract with the Government was for the respondent an important contract requiring constant and vigilant application ancf supervision by a person well-acquainted with the practical details of the business. If the management of the respondent as prudent businessmen for advancing the interest of the respondent bona fide regarded\n\n30 per cent of the net profits as reasonable remuneration, the revenue authorities were not justified in reviewing their opinion and reducing the rate of remuneration. It is true that if on a consideration of the relevant materials, the Appellate Tri]:mnal is of the opinion tht a partictJlar remuneration stipulated to be paid is not bona fide, or is unreasonaple. the High Court in exercising i~ advisory jurisdiction has no power to interfere with that opinion.\n\nBut the material circumstances relating to the nature of the contract. the services to be perf'Q[med and_ the nature, of. the duiies by the employee :were not at all laken into account by the Tribunal and the income-tal( authorities. We lherefore agree with the High Court that the first question should be answered in thv negative.\n\nThe contract under which the respondent Company was aµ..- - pointed managing agent for the Nellore Power and Light Company Ltd., was to ensure till 1960, but it had to be prematurely terminated because the .Govei\"nment of Madras exercising its powers under the Madras Electrical Undertakings Acquisition Act, 1949 had compulsorily acquired the electricity undertaking.\n\nWith the acquisition of t_hat undertaking the right of the respondent as managing agent ceased.\n\nUnder s. 15 of the El\"ctrical Undertakings Acquisition Act, the Government was bound to .pay compensation which would include compensation for termination of the managing agency agreement. The respondent received Rs. 17.346/- as compensation for termination of. the agency, comp!!ted in the manner laid down i1,1 s. 15 of that Act. Prima facie, such a receipt being in lieu of extinction' of an asset of the assessee, is a capital receipt. It was urged, however, on behalf of the revenue that the respondent was carrying on business of taking up managing agencies and that. by the extinctiOQ of one of the managing agencies, the business structure of the respondent was not impaired. In a recent judgmerl delivered by this Court in Kett/eweil Bullen and Company Ltd., v. Commissioner of Income-tax, Calcutta('}. it was pointed out.that:\n\n\"It may be broadly stated that what is receive<!_ for Joss of capital is a capital receipt-: vha< is received as profit in a trading transaction is tax&ble income. But the\n\n~~~~~~~~\n\n(') [!964) s s:c.R. 93 .\n\n'698\n\nSUPREME\n\nCOUR1' REJ'OR'l'S [J 965] 3 S.C.l!..\n\ndifficulty arises in ascertainting whether what is receiv- A ed in a given case is compensation for loss of a source of income, or profit in a traQ.iilg-transaction.\"\n\nThe Court further observed :\n\n\"It cannot be said as a general rule, that what is deti:rmina- B tive of the nature of the receipt is extinction or compulsory cessation of an agency or office.\n\nNor can it b, e said that compensation received for extinction of an agency_ may always be equated with price received on sale of goodwill of a business.\n\nThe test applicable to contracts for termination of agencies is: '¥hat has the C assessee parted with in lieu of money or money'!; worth received by him which is sought to be taxed? If compensation is paid for cancellation of ll. contract of. agency, which does not affect the trading structure .of 1 the business of tl.1e recipient, or involve loss of an emluring asset, leaving the taxpayer free to carry on D his trade released from the contract which is cancelled, the receipt will be a trading receipt: where the cancellation of a contract of agency iqipairs the trading structure, or involves loss of an enduring asset, . the amount paid 'for compensating the loss is capital:\"\n\nTurni_ng to the facts of the present case, it must in the tii; st E instance be--0bsert'ed that it -is for fhe revenue to establish that a 'particular receipt is income liable to .tax, and beyond stating that. the respondent was t, he ; nanaging agent of the Nellore Power and Light Company Ltd. and of two other Co:n!Janies, there is no other evidence about the nature of the bi1sines~ of the two other Companies of which the respondent was the mai1agihg-.agent, about F their relative importance qua the managing agency of the Nellore Power and Light Company Ltd., and whether by reason of the extinction of the managing agency of the Nellore Power and Light J;; ompany Ltd., any enduring asset was lost to 'the,'respondent, or\n\n\"rti; trading organisation was adversely affected.\n\nThe Income-tax Officer observed that the \"Company's business of Managing G Agency as such bad not come to an end\", the Company still continues as \"tnanaging agents of other 'companies\".\n\nEven after surrender of one of the agencies, the Company carries on business as\n\nbefore, its structure not being affected\" and therefore \"the receipt is to be considered as revenue, in accordance with the decision in Ke/sa/ Parsons and Company v. C.I.1?.. 21 T.C. No. 608.\". and H with t11a\\'view the Appellate Assistant Commissioner and the Tribunal agreed.\n\nBut in the absence of evidence as to 'what effect the determination of tlJe managipg agency of the Nellore Power and Light Company LJd., had upon \"the business of the respondent_ the 1ncrc circunistance that the respondent iHid n1anaging :Jgencies of l\\.VO other companies \\Vithout-'1lore ; viii not bring th-e cas~ \\\\ 1th'.n J.:t'l\\al P<a.,011\\' unci Cfl111pnn_r v ('nnuni., s:t)/!ers {lj fn!ana Reic~\n\nC, I.T. V. CHARI AND CHARI (/j/ia/i, J.)\n\nnue('). In Kettlewell Bullen and Company's case(') this Court pointed out that ordinarily compensation for loss of office or agency is regarded as a capital receipt, but the rule is subject to an exception tha.t payment received even for termination of an agency agreement, where the agency is one of many which the assessee holds, and the termination of the agency does not impair the profit-making structure of the assessee, but is within the framework of the business, it being a necessary incident of the business that existing agencies may be terminated, and fresh agencies may be taken, is revenue and not capital. Ke/sal Parsons and Company's case(') falls within the exception to the ordinary rule, and circumstances which brought the case of the respondent within the exception must be clearly established. The High Court was of the opinion that compensation received for taking over the Nellore Power and Light Company Ltd., was a capital receipt not liable to be taxed, and on the materials placed before us; we are unable to disagree with the High Court on this question.\n\nThe appeal therefore fails a'nd is dismissed with costs.\n\nAppeal dismissed.\n\n--·-----\n\n1') 21 T.C. 608.\n\n1 ~} i1fl4\"l ~.r, R,", "total_entities": 52, "entities": [{"text": "THE COMMISSIONER OF INCOME-TAX, MADRAS", "label": "PETITIONER", "start_char": 0, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF INCOME-TAX, MADRAS", "offset_not_found": false}}, {"text": "CHARI AND CHARI LTD", "label": "RESPONDENT", "start_char": 40, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "CHARI AND CHARI LTD", "offset_not_found": false}}, {"text": "April 9, 1965", "label": "DATE", "start_char": 62, "end_char": 75, "source": "ner", "metadata": {"in_sentence": "April 9, 1965\n\n!"}}, {"text": "K. SUBBA RAO, J.", "label": "JUDGE", "start_char": 78, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 95, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. M. SIKRI, J.J", "label": "JUDGE", "start_char": 107, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Tax Act, 1922", "label": "STATUTE", "start_char": 137, "end_char": 150, "source": "regex", "metadata": {}}, {"text": "s. 10(2)(xv)", "label": "PROVISION", "start_char": 152, "end_char": 164, "source": "regex", "metadata": {"linked_statute_text": "Tax Act, 1922", "statute": "Tax Act, 1922"}}, {"text": "June, 21, 1951", "label": "DATE", "start_char": 744, "end_char": 758, "source": "ner", "metadata": {"in_sentence": "On June, 21, 1951, the respondent company was appointed an agent of the Central Government for buying, checking, leaf dcying, and retaining and reselling tobacco under, and in accordance with, directions issued from time to time."}}, {"text": "Central Government", "label": "ORG", "start_char": 813, "end_char": 831, "source": "ner", "metadata": {"in_sentence": "On June, 21, 1951, the respondent company was appointed an agent of the Central Government for buying, checking, leaf dcying, and retaining and reselling tobacco under, and in accordance with, directions issued from time to time."}}, {"text": "June 22, 1951", "label": "DATE", "start_char": 974, "end_char": 987, "source": "ner", "metadata": {"in_sentence": "On June 22, 1951, the respondent passed a resolution placing one of the directors, A, in \"special charge\" of all the work under the contract with the Central Government and agreed to pay him 30 per cent of the net profits from the contract."}}, {"text": "31st March 1952", "label": "DATE", "start_char": 1255, "end_char": 1270, "source": "ner", "metadata": {"in_sentence": "Under this arrangement, for the year ended 31st March 1952, commission at 30 per cent was calculated and paid to A and was claimed in the assessment year 1952-53 as a permissible deduction under s. 10(2)(xv) of the Income-tax Act,\n\n1922."}}, {"text": "s. 10(2)(xv)", "label": "PROVISION", "start_char": 1407, "end_char": 1419, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 1427, "end_char": 1441, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "March 31, 1952", "label": "DATE", "start_char": 1991, "end_char": 2005, "source": "ner", "metadata": {"in_sentence": "This amount \\Vas taken into account by the Income-tax Officer in computng the respondent's income for the year ended March 31, 1952."}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 4372, "end_char": 4400, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION: Civil Appeal No."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 4497, "end_char": 4514, "source": "ner", "metadata": {"in_sentence": "Appeal from the judgment and order dated August 24, 1961 of the Madras High Court in Case referred No."}}, {"text": "Niren De", "label": "OTHER_PERSON", "start_char": 4550, "end_char": 4558, "source": "ner", "metadata": {"in_sentence": "Niren De."}}, {"text": "R. Ganapathy lyer", "label": "OTHER_PERSON", "start_char": 4590, "end_char": 4607, "source": "ner", "metadata": {"in_sentence": "Additional Solicitor-General, R. Ganapathy lyer and R. N. Sachthey, for the appellant."}}, {"text": "R. N. Sachthey", "label": "OTHER_PERSON", "start_char": 4612, "end_char": 4626, "source": "ner", "metadata": {"in_sentence": "Additional Solicitor-General, R. Ganapathy lyer and R. N. Sachthey, for the appellant."}}, {"text": "F R. Thiagarajan", "label": "LAWYER", "start_char": 4648, "end_char": 4664, "source": "ner", "metadata": {"in_sentence": "F R. Thiagarajan, for the respondent."}}, {"text": "Shah", "label": "JUDGE", "start_char": 4731, "end_char": 4735, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. The respondent is a private limited Company."}}, {"text": "Nellor Power and Light Company Ltd.", "label": "ORG", "start_char": 4911, "end_char": 4946, "source": "ner", "metadata": {"in_sentence": "It carried on business in hides and skins, minerals, tobacco and other commodities, and also acted as managing agents for the Nellor Power and Light Company Ltd. and for two other Companies."}}, {"text": "T. M. Ayyadurai", "label": "OTHER_PERSON", "start_char": 4977, "end_char": 4992, "source": "ner", "metadata": {"in_sentence": "T. M. Ayyadurai, T. M. Rangachari and P. C. Chakrabarti were directors of the Company.", "canonical_name": "T. M. Ayyadurai"}}, {"text": "T. M. Rangachari", "label": "OTHER_PERSON", "start_char": 4994, "end_char": 5010, "source": "ner", "metadata": {"in_sentence": "T. M. Ayyadurai, T. M. Rangachari and P. C. Chakrabarti were directors of the Company.", "canonical_name": "T. M. Rangachari"}}, {"text": "P. C. Chakrabarti", "label": "OTHER_PERSON", "start_char": 5015, "end_char": 5032, "source": "ner", "metadata": {"in_sentence": "T. M. Ayyadurai, T. M. Rangachari and P. C. Chakrabarti were directors of the Company."}}, {"text": "June 21, 1951", "label": "DATE", "start_char": 5183, "end_char": 5196, "source": "ner", "metadata": {"in_sentence": "On June 21, 1951 the respondent was appointed by the Central Government as its agent for buying, checking, weighing, leaf drying, storing, transporting, retaining and reselling tobacco under and in accordance with the directions issued from time to time."}}, {"text": "T.M. Ayyadurai", "label": "OTHER_PERSON", "start_char": 5739, "end_char": 5753, "source": "ner", "metadata": {"in_sentence": "On June 22, 1951 the respondent passed a resolution placing T.M. Ayyadurai in \"gpecial charge\" for arranging purchases of tobacco on credit,\n\n694 Sl; PH.Jo:ME COPH.T ltEPOl1.T.~\n\ninspecting tobacco at Guntur and at Madras Port, and for super- A vising shipment of tobacco.", "canonical_name": "T. M. Ayyadurai"}}, {"text": "Guntur", "label": "GPE", "start_char": 5880, "end_char": 5886, "source": "ner", "metadata": {"in_sentence": "On June 22, 1951 the respondent passed a resolution placing T.M. Ayyadurai in \"gpecial charge\" for arranging purchases of tobacco on credit,\n\n694 Sl; PH.Jo:ME COPH.T ltEPOl1.T.~\n\ninspecting tobacco at Guntur and at Madras Port, and for super- A vising shipment of tobacco."}}, {"text": "Madras", "label": "GPE", "start_char": 5894, "end_char": 5900, "source": "ner", "metadata": {"in_sentence": "On June 22, 1951 the respondent passed a resolution placing T.M. Ayyadurai in \"gpecial charge\" for arranging purchases of tobacco on credit,\n\n694 Sl; PH.Jo:ME COPH.T ltEPOl1.T.~\n\ninspecting tobacco at Guntur and at Madras Port, and for super- A vising shipment of tobacco."}}, {"text": "Government of India", "label": "ORG", "start_char": 6050, "end_char": 6069, "source": "ner", "metadata": {"in_sentence": "Under the contract with the Government of India Rs."}}, {"text": "Nellore Power and Light Company Ltd.", "label": "ORG", "start_char": 6729, "end_char": 6765, "source": "ner", "metadata": {"in_sentence": "The managing agency agreement of the respondent with the Nellore Power and Light Company Ltd., was terminated with effect from September 28, 1951 when the Government of the State of Madras in exercise of the power~ conferred upon it by the Electrical Undertakings Acquisition Act, 1949 compulsorily ac- D quired the undert8king of that Company, and the respc'ndent was\n\npaid Rs."}}, {"text": "September 28, 1951", "label": "DATE", "start_char": 6799, "end_char": 6817, "source": "ner", "metadata": {"in_sentence": "The managing agency agreement of the respondent with the Nellore Power and Light Company Ltd., was terminated with effect from September 28, 1951 when the Government of the State of Madras in exercise of the power~ conferred upon it by the Electrical Undertakings Acquisition Act, 1949 compulsorily ac- D quired the undert8king of that Company, and the respc'ndent was\n\npaid Rs."}}, {"text": "Government of the State of Madras", "label": "ORG", "start_char": 6827, "end_char": 6860, "source": "ner", "metadata": {"in_sentence": "The managing agency agreement of the respondent with the Nellore Power and Light Company Ltd., was terminated with effect from September 28, 1951 when the Government of the State of Madras in exercise of the power~ conferred upon it by the Electrical Undertakings Acquisition Act, 1949 compulsorily ac- D quired the undert8king of that Company, and the respc'ndent was\n\npaid Rs."}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7661, "end_char": 7675, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "T. M. Ayyad", "label": "OTHER_PERSON", "start_char": 7913, "end_char": 7924, "source": "ner", "metadata": {"in_sentence": "19.796/- out of the re, nuneration paid to Mr. T. M. Ayyad.;", "canonical_name": "T. M. Ayyadurai"}}, {"text": "s. 1012", "label": "PROVISION", "start_char": 8321, "end_char": 8328, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 8341, "end_char": 8355, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 9211, "end_char": 9219, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 9234, "end_char": 9248, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10(2)(xv)", "label": "PROVISION", "start_char": 9353, "end_char": 9365, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Central Tobacco Committee", "label": "ORG", "start_char": 11187, "end_char": 11219, "source": "ner", "metadata": {"in_sentence": "The respondent agreed to bny tobacco within the ceiling price fixed as and when directed by (he Government, and was responsible for buying proper grades of tobacco, for correctly checking the weights, for taking delivery from the sellers, for redrying it whenever so directed, for securing proper packing for transport by rail road or sea so as to conform to standards of packing usually employed in the export of tobacco or standards to the satisfaction of the purchaser, and for getting the tobacco inspected by the Tobacco Grading Inspectorate of the Indian Central Tobacco Committee according to the AGMARK standards."}}, {"text": "T: M. Ayyadurai", "label": "OTHER_PERSON", "start_char": 13477, "end_char": 13492, "source": "ner", "metadata": {"in_sentence": "400 /- per month are not on the record, but even in the opinion of the taxing authorities the duties of T: M. Ayyadurai as director did not cover attendance to the contract with the Government.", "canonical_name": "T. M. Ayyadurai"}}, {"text": "T. M. Rangachuri", "label": "OTHER_PERSON", "start_char": 13588, "end_char": 13604, "source": "ner", "metadata": {"in_sentence": "T. M. Ayyadurai and T. M. Rangachuri are brothers, but that by itself is not sufficient to justify an inference that unreasonable or G excessive remuneration was agreed to be paid.", "canonical_name": "T. M. Rangachari"}}, {"text": "T. M. Ayyadura1", "label": "OTHER_PERSON", "start_char": 14067, "end_char": 14082, "source": "ner", "metadata": {"in_sentence": "Presumably T. M. Ayyadura1 was such H a person a\"nd that is why he was selected for earning for the respondent 'a large amount of commission by duly performing the contract.", "canonical_name": "T. M. Ayyadurai"}}, {"text": "Assistant Commissioner", "label": "PETITIONER", "start_char": 14245, "end_char": 14267, "source": "ner", "metadata": {"in_sentence": "The Appellate Assistant Commissioner merely paraphrased the decision of the Income-tax Officer and regarded 10 per cent of the net profits as reasonable."}}, {"text": "Madras exercising its powers under the Madras Electrical Undertakings Acquisition Act, 1949", "label": "STATUTE", "start_char": 16218, "end_char": 16309, "source": "regex", "metadata": {}}, {"text": "s. 15", "label": "PROVISION", "start_char": 16469, "end_char": 16474, "source": "regex", "metadata": {"linked_statute_text": "Madras exercising its powers under the Madras Electrical Undertakings Acquisition Act, 1949", "statute": "Madras exercising its powers under the Madras Electrical Undertakings Acquisition Act, 1949"}}, {"text": "Undertakings Acquisition Act", "label": "STATUTE", "start_char": 16493, "end_char": 16521, "source": "regex", "metadata": {}}, {"text": "s. 15", "label": "PROVISION", "start_char": 16776, "end_char": 16781, "source": "regex", "metadata": {"linked_statute_text": "Undertakings Acquisition Act", "statute": "Undertakings Acquisition Act"}}, {"text": "Nellore Power and Light J;; ompany Ltd.", "label": "ORG", "start_char": 19400, "end_char": 19439, "source": "ner", "metadata": {"in_sentence": "the respondent was t, he ; nanaging agent of the Nellore Power and Light Company Ltd. and of two other Co:n!Janies, there is no other evidence about the nature of the bi1sines~ of the two other Companies of which the respondent was the mai1agihg-.agent, about F their relative importance qua the managing agency of the Nellore Power and Light Company Ltd., and whether by reason of the extinction of the managing agency of the Nellore Power and Light J;; ompany Ltd., any enduring asset was lost to 'the,'respondent, or\n\n\"rti; trading organisation was adversely affected."}}, {"text": "Kettlewell Bullen and Company", "label": "ORG", "start_char": 20550, "end_char": 20579, "source": "ner", "metadata": {"in_sentence": "In Kettlewell Bullen and Company's case(') this Court pointed out that ordinarily compensation for loss of office or agency is regarded as a capital receipt, but the rule is subject to an exception tha.t payment received even for termination of an agency agreement, where the agency is one of many which the assessee holds, and the termination of the agency does not impair the profit-making structure of the assessee, but is within the framework of the business, it being a necessary incident of the business that existing agencies may be terminated, and fresh agencies may be taken, is revenue and not capital."}}]}
{"document_id": "1965_3_700_707_EN", "year": 1965, "text": "COMMISSIONER INCOME-TAX, U. P. v.\n\nKUNWAR TRIVIKRAM NARAIN SINGH\n\nApril 9, 1965 [K. SUBBA RAO, J. c. SHAH AND s. M. Snrn, JJ.]\n\nfocome Tax Act, 1922 (11 of 1922), ss. 2(1)(a) and 4(3) (viii;- .Agricultural Income-Nature of.\n\nThe respondent was the head oI a Hindu undivided family and was the descendant of a J agirdar. Certain disputes between the .Jagirdar and the Zamindars in the district had been settled in 1837\n\nb:Y a compromise between the British Government and the then Jagirdar, whereby, the Government granted the Jagirdar and his heirs a pension in perpetuity to be calculated on the basi; of onefourth of the revenue of the Jagir. By this arrangement the collections from the Jagir became payable by the Zamindai's direct to the Government and the Jagirdar and his successors no longer remained the proprietors of the J agir and became entitled only to a pension.\n\nThe Income-tax Officer assessed the receipt of the pension by the respondent as part of his regular income and rejected the latter's contention that the amount received was agricultural income within the meaning of s. 4(3)(:-\"iii) of the Income-tax Act, 1922.\n\nIn appeal, the Assistant Commissioner accepted the respondent's contention, but the Tribunal reversed this finding. The High Court. on a reference. decided the issue in favour of the respondent, on the grounds. in:er alia, that the right conferred under the compromise of 1837 was a right to a share of one-fourth in the net land revenue collections and furthermore, the amount received by the successors of the J agirdar varied from year to year. In the appeal before the Su~ .eme Court, it was also contended on behalf of the respondent that the amount received was in the nature of a capital receipt, being a payment to the J agirdar and his successors of compensation for relinquishing the title to the J agir lands.\n\nHELD: (i) Under the compromise and arrangement of 1837, the respondent had no interest in the land or in the land revenue payable in respect thereof. [704 A] .\n\nState of U.P. v. Kunwar Sri Trivikram Narain Singh, [1962] 3 .S.C.R 213, followed.\n\nAs the source of the income in this case was the arrangement of 1837, the income could not be held to l:e derived from land within: the meaning of the definition of agricultural income in s. 2(1)(a) of the Act. Even if the income varied from year to year, the source of the income was still the arrangement and not land. [705 G] Maharajkumar Gopal Saran Narain Singh, v. C.l.T. Bihar and Orissa, 3 I.T.R. 237, C.I.T. Bihar and Orissa v. Raja Bahadur Kamkhya Narayan Singh and Ors, 16 I.T.R. 325, Mrs. Bacha F. Guzdar v. C.I.T.\n\nBobau 27, I.TR 1, Maharajadhiraja Sir Kaineshwar Singh, v.\n\nC.UJ.'. Bihar and Orissa, 41 I.T.R. 169, followed.\n\n(ii) The amount received by the respondent was not a capital receipt but revenue income and therefore taxable.\n\nB •\n\nc.r.T. v. KUNW.AR TRIVIKRAM (Sikri, J.) 701\n\nWhere an owner of an estate exchanges a capital asset for a perpetual annuity, it is ordinarily taxable in his hands. The position would be different if he exchanged his estate for a capital sum payable in instalments. Such instalments when received would not be taxable as income. But in the present case there was no material to show that the amount received was an instalment of this nature.\n\n[706 H-707C] B Commissioner of Inland Revenue v. Wesleyan and General Assurance Society, 30 T.C. 11, and Perrin v. Dickson 14 T.C. 608, referred to.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 68 of 1964.\n\nAppeal from the judgment and decree dated July 27; 1959 of the Allahabad High Court in Income-tax Reference No. 307 of l 957.\n\nS. V. Gupte, Solicitor General, R. Ganapathy Iyer and R. N.\n\nSachthey, for the appellant.\n\nA. V. Viswanatha Sastri and S. P. Varma, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nSikri, J. This appeal pursuant to a certificate granted by the Allahabad High Court under s. 66A(2) of the Income-tax Act (hereinafter referred to as the Act) is directed against the judgment of the High Court in a. reference under the Act, answering the question referred to it in the negative.\n\nThe question referred by the Appellate Tribunal is:\n\n\"Whether on a true interpretation of clause (viii) of subsection 3 of section 4 of the Indian Income-tax Act the sum of Rs. 36,396 /- received by the assessee as an allowance during the previ0us year of the assessment year 1949-50 is revenue income liable to tax under the Indian Income-tax Act, 1922?\"\n\nThe relevant facts stated in the Statement of the case are as follows: The assessee is a Hindu undivided family headed by one\n\nSri Trivikram Narain Singh who is a descendant of one Sri Babu G Ausan Singh who was the original founder and owner of what is known as Ausanganj State in the district of Benaras. The district of Benaras was formerly a part of Oudh territory. By a Treaty between the East India Company Nawab Asafuddaula in or about the year 1775, the province of Benaras was ceded to the British Government.\n\nThe British Government granted a sanad of Raj to H Raja Chet Singh who in turn gave the Jagir of Parganas Seyedpore and Bhittery in perpetuity to Babu Ausan Singh. It appears that in l 796 there were some displltes between Babu.Ausan Singh ard the Za, mindars in the district and the matter was referred by the Collector of Benaras to the Board of Revenue in Calcutta. The disputes between the Jagirdars and Zamindars ultimately ended in 1837 by a compromise l)etween the British Government and the \\hen Jagirdar Har Narain Singh whereby the British Government\n\nSUPREME\n\nCOURT\n\nREPORTS [1965] 3 s.c.R.\n\ngrante~ a !?ens.ion of Rs._ 36,322/8/- to Babu Har Narain Singh A and his he1rs m perI?etmty.\n\nThe quantum of this pension was ca!culated on the basis of l /4th of the revenue of the Jagir. By this arrangement the revenue or land collections of Jagir became payable by the Zamindars direct to the Government and by the grant of the pension, Babu Har Narain Singh and his successors no longer remained the proprietors of the Parganas or the Jagir B and became entitled to merely a pension. The letter by which the amount of pension was determined at Rs. 36,322/8/- is dated 7th of July, 1837 and was from H. Elliot Esqr., the Secretary Sadar Board of Revenue. N.W.P. Allahabad, to J. Thompson Esqr., Offg.\n\nSecretary to Lt Government, N.W.P.\".\n\nThe pension was paid regularly from year to year by the Government to Babu Har Narain Singh and his heirs.\n\nDuring the previous year of the assessment year 1949-50, the assessee received a sum of Rs. 36,396 /- on account of the aforesaid pension. The Income-tax Officer, in spite of the objection of the assessee, held\n\nthat it was a regular annual income of the assessee and did not fall within the category of agricultural income-tax. He observed D that \"in fact this income arose from a statutory obligation of the Government to pay it, and although the Government recouped this from the person with whom the land was settled, land in the genealogical tree of Mafikana appears in the second degree, its immediate and effective source is the. Government's statutory obligation to pay it, and this obligation is not land within the meaning E of Income-tax Act, vide C.l.T. v. Raja Bahadur Kamakhaya Narain Singh(')\".\n\nThe assessee appealed to the Appellate Assistant Commissioner who held that \"the alleged cash grant of varying and unspecified amount received by the appellant, in relation to land revenue of F Seyedpur now Tehsil of District Ghazipur, clearly fell within the definition of agricultural income under Section 2(1) of the Incometax Act.\"\n\nThe Income-tax Officer appealed to the Income-tax Appellate Tribunal. The Tribunal held that the sum of Rs. 36,396 /, was chargeable to tax under the Act as the income was not agricultural G income for \"although the pension was determined with respect to the quantum of the rent collction _the rent collections or _the land could not be said to be the iwmed1ate source of the pens10n. The source of the pension was a liaility ul'.dertaken by th~ Government for extinguishing the propnetary nghts of the Jag1rdar and when the immediate source of the income was not Ian? or rent H collections from land, it is_ difficult t? old that the. receipt of he assessee was agricultural mcome w1thm the meamng of Section 4(3)(viii) of the Income-tax Act.\" The High Court held that from the language of the letter of July 7, J 837, it was manifest that the. right which was conferred\n\n(') (1948) 18 l.T.R. 325.\n\nC.I.T. t>.\n\nKU;,, WAR TRIVIKRAM (Sikri, J.) i03\n\nA was a right to a share of one-fourth in the net land revenue collections after deducting costs of Tahsil establishment. It relied on the fact that the amount which had been received by the successors of Babu Harnarain Singh varied from year to year. It observed that \"the language of the letter and this conduct of the parties can only lead to the inference that, by this settlement contained i_n B the letter of 7th July, 1837, Babu Har Narain Singh and his successors were granted in perpetuity a right to one-fourth of the land revenue collections themselves and not merely a right to receive a sum of money calculated on that basis.\" The High Court accordingly answered the question in the negative. a The learned. Additional , Solicitor-General, on behalf of the appellant, contends that according to the true interpretation of the letter dated July 7, 1837. no right in the land revenue was granted to the assessee. He relies on the decision of this Court in State of Uttar Pradesh v. Kunwar SriTrivikram Narain Singh(').\n\nThat case arose out of the writ petition filed by the present res- D pondent in the High Court of Judicature at Allahabad for a writ in the nature of mandamus calling upon the State of Uttar Pradesh to forbear from interfering with his right to regular payment of the\n\n\"pension, allowance or Malikana\" payable in lieu of the hereditary estate of Harnarain Singh in respect of parganas \"Syudpore Bhettree\" and for an order for payment of the\"'pension, allowance J!l or malikana\" as it fell due. This Court interpreted the same letter, dated July 7, 1837, and came to the conclusion that the respondent did not acquire any interest in land or any land revenue. Shah, J ., speaking for the Court, observed:\n\n\"Because the annual allowance is equal to a fourth share of the net revenue of the mahals, the right of the respondent does not acquire the character of an interest in land or in land revenue. Under the arrangement, the entire land revenue was to be collected by the Government and in the collection Harnarain S.ingh and his descendants had no interest or obligation.\n\nAs a consideration for relinquishing the right to the land and the revenue thereof, the respondent and his ancestors were given an allowance of Rs. 30,612-13-0. The ailowance was iri a sense related to the land revenue assessed on the land, i.e. it was fixed as a percentage of the land revenue; but the percentage was merely a measure, and indicated the source of the right in lieu of which the allowance was given.\" The learned counsel for the respondent, Mr. A. Viswanatha Sastri urges that on its true interpretation the letter dated July 7, 1837, showed an arrangement for sharing c011ections. We are unable to agree with his contention. We respectfully adopt the reasoning and conclusion of this Court in the case of State of\n\nI') [1962] 3 S.C.R. 213.\n\n70.1 SUPREME couar JIEPOJ:TS [l 9U5] :; ,;, v.11.\n\nUttar Pradesh v. Kunwr1r Sri frivikram Narain Singh(') and hold A that the rspondent, under the arrangement, had no interest in land or in the 1and revenue payable in respect thereof.\n\nIf this is the true interpretation of the arrangement arrived at, the question arises whether the pension or allowance is agricultural income. 'Agricultural income' is defined in s. 2 of the Act B as follows: -\n\n\"(J) \"agricultural income\" means-\n\n(a) any rent or revenue derived from land which is used for agricultural purposes and is either assessed to land revenue in British India or subject to a local rate C assessed and collected by officers of the Crown as such: ...... \"\n\nIn Maharajkumar Gopa/ Saran Narain Singh v. Commissioner of Income-tax, Bihar and Orissa('), the facts were that the asscssee had conveyed the greater portion of his estate. The consideration for D the transfer was, inter a/ia, an annual payment of Rs. 2,40,000 /- to the assessee for life. The Privy Council held that this \"annual payment was not agricultural income as it was not rent or revenue derived from land but money payable under a C<_!ntract imposing . a personal liability on the covenantor the discharge of which was secured by a charge on land.\" E\n\nThe Privy Council, in Commissioner of Income-tax Bihm and Orissa v. Raja Bahadur Kamakhaya Narayan Singh and Others('),\n\nconstrued the word 'derived' as follows:\n\n\"The word \"derived\" is not a term of art.\n\nIts use in the definition indeed demand~ an enquiry into the gene- F alogy of the product. But the enquiry should stop as soon as the effective source is. discovered. In the genealogical tree of the interest land indeed 11ppears\n\nin the second degree, but the immediate and etlectiv~ source is rent, which has suffered the accident of nonpayment. And rent is not land within the meaning G of the definition.\"\n\nThis Court observed in Mrs. Bacha F. Guzdar, Bombay v.\n\nCommissioner of -Income-tax, Bombay(') as follow:\n\n\"Agricultural income as defined in the Act is intended to\n\nrefer to the revenue received by direct association with H the land which is used for agricultural purposes and not by indirectly extending it to cases where that revenue or part thereof changes hands either by way of distribution of dividends or otherwise.\"\n\n(') fl962] 3 S.C.R. 213.\n\n(') 3 I.T.R. 237.\n\n(') 16 I.T.R. 321i. (') 27 I.T .R. l.\n\nC.I.T.\n\nKUNWAR TRIVIKRAM (Sikr'. J.) 705\n\nThe same test was adopted by this Court in Maharajadhiraju Sir Kameshwar Singh v. Commissioner of Income-tax, Bihar and Orissa(') and the Court again looked to the source .of the right in order to determine whether income was agricultural income or not.\n\nShah, J., observed:\n\n\"The appellant has no beneficial interest in the lands which are the subject-matter of the trust: nor is he given under the trust a right to receive and appropriate to himself the income of the properties or a part thereof in lieu of any beneficial interest in that income. The source of the right in which a fraction of the net income of the trust is to be appropriated by the appellant as his remuneration is riot in the right to receive rent or revenue of agricultural lands, but rest~ in the covenant in the deed to receive remuneration for management of the trust. The income of the trust appropriated by the appellant as remuneration is not received by him as rent or revenue of land; the character of the income appropriated as remuneration due is again not the same as the character in which it was received by the appellant as trustee. Both the source and character of the income are, therefore, altered when a part of the income of the trust is appropriated by the appellant as his remuneration, and that is so, notwithstanding that computation of remuneration is made as a percentage of the inc<;>me, a substantial part whereof is derived from lands used for agricultural purposes. The remuneration not being received as rent or revenue of agricultural lands under a title, legal or beneficial in the property from which the income is received, it is not income exempt under section 4(3)(viii).\" It follows from the decision's of the Privy Council and the judgments of this Court cited above that if it is held in this case that the source of the allowance or pension is the arrangement G arrived at in 1837, then the income cannot be held to be derived from land within the meaning of the definition in s. 2(1)(a) of the Act. It seems to us that in this case the source of income is clearly the arrangement arrived at in 1837 and, therefore, ii is not agricultural income as defined in the Act.\n\nH Mr. Sastri sought to distinguish those cases on the ground 'that the allowance here varied from year to year. Assuming that the allowance varied from year to year, the source of the income still remains the arrangement and not land.\n\nThe next point that arises in this case is whether the allowance is taxable income at all. Mr. Sastri contends that it is capital receipt. He says that if the assessee's predecessor had received\n\nI') 41 I.T.R. 169.\n\n706 St'l'l~KME l'OllltT lU<; l'ORTS [l9Gti] :l s.u.11.\n\ncompensation for relinquishing his title to the lands in dispute, A that would have been a capital receipt and not taxable.\n\nHe further says that the allowance was in fact a payment of the compensation for relinquishing the title to those lands. He says that we must considtr the quality of the income and not its periodicity. He refers to the following passage from the speech of Viscount Simon in Confmissioner of Inland Revenue v. Wesleyan and General B Assurance. Society('): ~\n\n' \"It may be welt to repeat two propositions which are welt established in the application of the law relating to Income-tax. First, the name given to a transaction by the parties concerned does not necessarily decide the 0 nature of the transaction. To call .a payment a loan if it is really an annuity does not assist the taxpayer, any more than to call an item a capital payment wmld prevent it from being regarded as an income payment if that is its true nature. The question always is what is the real character of the payment, not what the par- D ties call it.\"\n\nHe, therefore, asked us to disregard the word 'pension' in the letter dated July 7, 1837, and determine the real character of the payment.\n\nAnJther passage from the speech of Viscount Simon is also relevant.\n\nLord Simon. observed :\n\n\"Secondly, a transaction which, on its true construction. is of a kind that would escape tax, is not taxable on the ground that the same result could be brought about\n\nby a transaction in another form which would attract tax. As the Master of the Rolls said in the present case: 'In dealing with Income-tax questions it fre- F quently happens that there are tWo methods at least of achieving a particular financial result. . If one of those methods is adopted tax will be payable. If the other mehod is adopted, tax will not be payable. . .\n\nThe net result from the financial point of view is precisely the same in each case, but one method of achieving it attracts tax and the other method does not. There have been cases in the past where what has been called the substance of the transaction has been thought to enable the Court to construe a document in . such a way as to attract tax. That particular doctrine of substance\n\nas distinct from form was, I hope, finally exploded by B the decision of the House of Lords in the case of Duke of Westminster v. Commissioner of Inland Revenue(')\".\n\nIt seems to us that where an owner of an estate exchanges a capital asset for a perpetual annuity, it is ordinarily taxable income in his hands. The position will be different if he exchanges\n\n(') 30 T.C. II.\n\n(1) ID T.C. ,90.\n\nU.LT. v. KUN\\VAH. THIVJKRAM (Sikrt, J.) /\\;7\n\nA his estate for a capital sum payable in instalments.\n\nThe instalments when received would not be taxable income.\n\nMr. Sastri, relying on Perrin v. Dickson(') contends that an annuity is not always taxable as income. This is true, but in this case no material has been produced to show that the allowance was in fact a payment in instalments of the value of the disputed title of the assessee's predecessor in 1837.\n\n!n the result, we hold that the allowance is revenue income and not exempt from taxation as agricultural income. Therefore, we accept the appeal and answer the question referred in the affirmative.\n\nThe appellant will have his costs here and in the High court.\n\nAppeal allowed.\n\nC') JO T.C. tel.", "total_entities": 69, "entities": [{"text": "COMMISSIONER INCOME-TAX, U", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER INCOME-TAX, U. P", "offset_not_found": false}}, {"text": "KUNWAR TRIVIKRAM NARAIN SINGH", "label": "RESPONDENT", "start_char": 35, "end_char": 64, "source": "metadata", "metadata": {"canonical_name": "KUNWAR TRIVIKRAM NARAIN SINGH", "offset_not_found": false}}, {"text": "April 9, 1965", "label": "DATE", "start_char": 66, "end_char": 79, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER INCOME-TAX, U. P. v.\n\nKUNWAR TRIVIKRAM NARAIN SINGH\n\nApril 9, 1965 [K. SUBBA RAO, J. c. SHAH AND s. M. Snrn, JJ.]"}}, {"text": "K. SUBBA RAO, J.", "label": "JUDGE", "start_char": 81, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "c. SHAH", "label": "JUDGE", "start_char": 98, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Tax Act, 1922", "label": "STATUTE", "start_char": 135, "end_char": 148, "source": "regex", "metadata": {}}, {"text": "ss. 2(1)(a) and 4(3)", "label": "PROVISION", "start_char": 163, "end_char": 183, "source": "regex", "metadata": {"linked_statute_text": "Tax Act, 1922", "statute": "Tax Act, 1922"}}, {"text": "British Government", "label": "ORG", "start_char": 448, "end_char": 466, "source": "ner", "metadata": {"in_sentence": "Certain disputes between the .Jagirdar and the Zamindars in the district had been settled in 1837\n\nb:Y a compromise between the British Government and the then Jagirdar, whereby, the Government granted the Jagirdar and his heirs a pension in perpetuity to be calculated on the basi; of onefourth of the revenue of the Jagir."}}, {"text": "Jagirdar", "label": "OTHER_PERSON", "start_char": 762, "end_char": 770, "source": "ner", "metadata": {"in_sentence": "By this arrangement the collections from the Jagir became payable by the Zamindai's direct to the Government and the Jagirdar and his successors no longer remained the proprietors of the J agir and became entitled only to a pension.", "canonical_name": "Jagirdars"}}, {"text": "s. 4(3)(:-\"iii)", "label": "PROVISION", "start_char": 1094, "end_char": 1109, "source": "regex", "metadata": {"linked_statute_text": "Tax Act, 1922", "statute": "Tax Act, 1922"}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 1117, "end_char": 1137, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(1)(a)", "label": "PROVISION", "start_char": 2295, "end_char": 2305, "source": "regex", "metadata": {"statute": null}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 3578, "end_char": 3598, "source": "ner", "metadata": {"in_sentence": "Appeal from the judgment and decree dated July 27; 1959 of the Allahabad High Court in Income-tax Reference No."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 3642, "end_char": 3653, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor General, R. Ganapathy Iyer and R. N.\n\nSachthey, for the appellant."}}, {"text": "R. Ganapathy Iyer", "label": "LAWYER", "start_char": 3674, "end_char": 3691, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor General, R. Ganapathy Iyer and R. N.\n\nSachthey, for the appellant."}}, {"text": "R. N.\n\nSachthey", "label": "LAWYER", "start_char": 3696, "end_char": 3711, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor General, R. Ganapathy Iyer and R. N.\n\nSachthey, for the appellant."}}, {"text": "A. V. Viswanatha Sastri", "label": "LAWYER", "start_char": 3733, "end_char": 3756, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri and S. P. Varma, for the respondent.", "canonical_name": "A. V. Viswanatha Sastri"}}, {"text": "S. P. Varma", "label": "LAWYER", "start_char": 3761, "end_char": 3772, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri and S. P. Varma, for the respondent."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 3839, "end_char": 3844, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSikri, J. This appeal pursuant to a certificate granted by the Allahabad High Court under s. 66A(2) of the Income-tax Act (hereinafter referred to as the Act) is directed against the judgment of the High Court in a. reference under the Act, answering the question referred to it in the negative.", "canonical_name": "Sikri"}}, {"text": "s. 66A(2)", "label": "PROVISION", "start_char": 3929, "end_char": 3938, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 3946, "end_char": 3960, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 3", "label": "PROVISION", "start_char": 4246, "end_char": 4255, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 4259, "end_char": 4268, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 4283, "end_char": 4297, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 4462, "end_char": 4489, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Trivikram Narain Singh", "label": "OTHER_PERSON", "start_char": 4624, "end_char": 4646, "source": "ner", "metadata": {"in_sentence": "The relevant facts stated in the Statement of the case are as follows: The assessee is a Hindu undivided family headed by one\n\nSri Trivikram Narain Singh who is a descendant of one Sri Babu G Ausan Singh who was the original founder and owner of what is known as Ausanganj State in the district of Benaras."}}, {"text": "Babu G Ausan Singh", "label": "OTHER_PERSON", "start_char": 4678, "end_char": 4696, "source": "ner", "metadata": {"in_sentence": "The relevant facts stated in the Statement of the case are as follows: The assessee is a Hindu undivided family headed by one\n\nSri Trivikram Narain Singh who is a descendant of one Sri Babu G Ausan Singh who was the original founder and owner of what is known as Ausanganj State in the district of Benaras.", "canonical_name": "Babu G Ausan Singh"}}, {"text": "Benaras", "label": "GPE", "start_char": 4791, "end_char": 4798, "source": "ner", "metadata": {"in_sentence": "The relevant facts stated in the Statement of the case are as follows: The assessee is a Hindu undivided family headed by one\n\nSri Trivikram Narain Singh who is a descendant of one Sri Babu G Ausan Singh who was the original founder and owner of what is known as Ausanganj State in the district of Benaras."}}, {"text": "Oudh", "label": "GPE", "start_char": 4847, "end_char": 4851, "source": "ner", "metadata": {"in_sentence": "The district of Benaras was formerly a part of Oudh territory."}}, {"text": "East India Company Nawab Asafuddaula", "label": "ORG", "start_char": 4887, "end_char": 4923, "source": "ner", "metadata": {"in_sentence": "By a Treaty between the East India Company Nawab Asafuddaula in or about the year 1775, the province of Benaras was ceded to the British Government."}}, {"text": "H Raja Chet Singh", "label": "OTHER_PERSON", "start_char": 5062, "end_char": 5079, "source": "ner", "metadata": {"in_sentence": "The British Government granted a sanad of Raj to H Raja Chet Singh who in turn gave the Jagir of Parganas Seyedpore and Bhittery in perpetuity to Babu Ausan Singh."}}, {"text": "Parganas Seyedpore", "label": "OTHER_PERSON", "start_char": 5110, "end_char": 5128, "source": "ner", "metadata": {"in_sentence": "The British Government granted a sanad of Raj to H Raja Chet Singh who in turn gave the Jagir of Parganas Seyedpore and Bhittery in perpetuity to Babu Ausan Singh."}}, {"text": "Bhittery", "label": "OTHER_PERSON", "start_char": 5133, "end_char": 5141, "source": "ner", "metadata": {"in_sentence": "The British Government granted a sanad of Raj to H Raja Chet Singh who in turn gave the Jagir of Parganas Seyedpore and Bhittery in perpetuity to Babu Ausan Singh."}}, {"text": "Babu Ausan Singh", "label": "OTHER_PERSON", "start_char": 5159, "end_char": 5175, "source": "ner", "metadata": {"in_sentence": "The British Government granted a sanad of Raj to H Raja Chet Singh who in turn gave the Jagir of Parganas Seyedpore and Bhittery in perpetuity to Babu Ausan Singh.", "canonical_name": "Babu G Ausan Singh"}}, {"text": "Babu.Ausan Singh", "label": "OTHER_PERSON", "start_char": 5236, "end_char": 5252, "source": "ner", "metadata": {"in_sentence": "It appears that in l 796 there were some displltes between Babu.", "canonical_name": "Babu G Ausan Singh"}}, {"text": "Calcutta", "label": "GPE", "start_char": 5372, "end_char": 5380, "source": "ner", "metadata": {"in_sentence": "Ausan Singh ard the Za, mindars in the district and the matter was referred by the Collector of Benaras to the Board of Revenue in Calcutta."}}, {"text": "Jagirdars", "label": "OTHER_PERSON", "start_char": 5407, "end_char": 5416, "source": "ner", "metadata": {"in_sentence": "The disputes between the Jagirdars and Zamindars ultimately ended in 1837 by a compromise l)etween the British Government and the \\hen Jagirdar Har Narain Singh whereby the British Government\n\nSUPREME\n\nCOURT\n\nREPORTS [1965] 3 s.c.", "canonical_name": "Jagirdars"}}, {"text": "Zamindars", "label": "OTHER_PERSON", "start_char": 5421, "end_char": 5430, "source": "ner", "metadata": {"in_sentence": "The disputes between the Jagirdars and Zamindars ultimately ended in 1837 by a compromise l)etween the British Government and the \\hen Jagirdar Har Narain Singh whereby the British Government\n\nSUPREME\n\nCOURT\n\nREPORTS [1965] 3 s.c."}}, {"text": "Babu Har Narain Singh", "label": "OTHER_PERSON", "start_char": 5658, "end_char": 5679, "source": "ner", "metadata": {"in_sentence": "36,322/8/- to Babu Har Narain Singh A and his he1rs m perI?etmty.", "canonical_name": "Babu Har Narain Singh"}}, {"text": "Jagir", "label": "OTHER_PERSON", "start_char": 5861, "end_char": 5866, "source": "ner", "metadata": {"in_sentence": "By this arrangement the revenue or land collections of Jagir became payable by the Zamindars direct to the Government and by the grant of the pension, Babu Har Narain Singh and his successors no longer remained the proprietors of the Parganas or the Jagir B and became entitled to merely a pension.", "canonical_name": "Jagirdars"}}, {"text": "7th of July, 1837", "label": "DATE", "start_char": 6189, "end_char": 6206, "source": "ner", "metadata": {"in_sentence": "36,322/8/- is dated 7th of July, 1837 and was from H. Elliot Esqr.,"}}, {"text": "H. Elliot Esqr", "label": "OTHER_PERSON", "start_char": 6220, "end_char": 6234, "source": "ner", "metadata": {"in_sentence": "36,322/8/- is dated 7th of July, 1837 and was from H. Elliot Esqr.,"}}, {"text": "J. Thompson", "label": "OTHER_PERSON", "start_char": 6296, "end_char": 6307, "source": "ner", "metadata": {"in_sentence": "N.W.P. Allahabad, to J. Thompson Esqr.,"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7206, "end_char": 7220, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 2(1)", "label": "PROVISION", "start_char": 7579, "end_char": 7591, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Appellate Tribunal", "label": "COURT", "start_char": 7655, "end_char": 7684, "source": "ner", "metadata": {"in_sentence": "The Income-tax Officer appealed to the Income-tax Appellate Tribunal."}}, {"text": "Section 4(3)(viii)", "label": "PROVISION", "start_char": 8318, "end_char": 8336, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 8344, "end_char": 8358, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "WAR TRIVIKRAM", "label": "JUDGE", "start_char": 8534, "end_char": 8547, "source": "ner", "metadata": {"in_sentence": "KU;,, WAR TRIVIKRAM (Sikri, J.) i03\n\nA was a right to a share of one-fourth in the net land revenue collections after deducting costs of Tahsil establishment.", "canonical_name": "KUNWAR TRIVIKRAM NARAIN SINGH"}}, {"text": "Babu Harnarain Singh", "label": "OTHER_PERSON", "start_char": 8770, "end_char": 8790, "source": "ner", "metadata": {"in_sentence": "It relied on the fact that the amount which had been received by the successors of Babu Harnarain Singh varied from year to year.", "canonical_name": "Babu Har Narain Singh"}}, {"text": "7th July, 1837", "label": "DATE", "start_char": 8980, "end_char": 8994, "source": "ner", "metadata": {"in_sentence": "It observed that \"the language of the letter and this conduct of the parties can only lead to the inference that, by this settlement contained i_n B the letter of 7th July, 1837, Babu Har Narain Singh and his successors were granted in perpetuity a right to one-fourth of the land revenue collections themselves and not merely a right to receive a sum of money calculated on that basis.\""}}, {"text": "July 7, 1837", "label": "DATE", "start_char": 9417, "end_char": 9429, "source": "ner", "metadata": {"in_sentence": "Additional , Solicitor-General, on behalf of the appellant, contends that according to the true interpretation of the letter dated July 7, 1837."}}, {"text": "High Court of Judicature at Allahabad", "label": "COURT", "start_char": 9680, "end_char": 9717, "source": "ner", "metadata": {"in_sentence": "That case arose out of the writ petition filed by the present res- D pondent in the High Court of Judicature at Allahabad for a writ in the nature of mandamus calling upon the State of Uttar Pradesh to forbear from interfering with his right to regular payment of the\n\n\"pension, allowance or Malikana\" payable in lieu of the hereditary estate of Harnarain Singh in respect of parganas \"Syudpore Bhettree\" and for an order for payment of the\"'pension, allowance J!l or malikana\" as it fell due."}}, {"text": "State of Uttar Pradesh", "label": "ORG", "start_char": 9772, "end_char": 9794, "source": "ner", "metadata": {"in_sentence": "That case arose out of the writ petition filed by the present res- D pondent in the High Court of Judicature at Allahabad for a writ in the nature of mandamus calling upon the State of Uttar Pradesh to forbear from interfering with his right to regular payment of the\n\n\"pension, allowance or Malikana\" payable in lieu of the hereditary estate of Harnarain Singh in respect of parganas \"Syudpore Bhettree\" and for an order for payment of the\"'pension, allowance J!l or malikana\" as it fell due."}}, {"text": "Harnarain Singh", "label": "OTHER_PERSON", "start_char": 9942, "end_char": 9957, "source": "ner", "metadata": {"in_sentence": "That case arose out of the writ petition filed by the present res- D pondent in the High Court of Judicature at Allahabad for a writ in the nature of mandamus calling upon the State of Uttar Pradesh to forbear from interfering with his right to regular payment of the\n\n\"pension, allowance or Malikana\" payable in lieu of the hereditary estate of Harnarain Singh in respect of parganas \"Syudpore Bhettree\" and for an order for payment of the\"'pension, allowance J!l or malikana\" as it fell due.", "canonical_name": "Harnarain S.ingh"}}, {"text": "Shah", "label": "JUDGE", "start_char": 10255, "end_char": 10259, "source": "ner", "metadata": {"in_sentence": "Shah, J .,"}}, {"text": "Harnarain S.ingh", "label": "OTHER_PERSON", "start_char": 10601, "end_char": 10617, "source": "ner", "metadata": {"in_sentence": "Under the arrangement, the entire land revenue was to be collected by the Government and in the collection Harnarain S.ingh and his descendants had no interest or obligation.", "canonical_name": "Harnarain S.ingh"}}, {"text": "A. Viswanatha Sastri", "label": "LAWYER", "start_char": 11132, "end_char": 11152, "source": "ner", "metadata": {"in_sentence": "The learned counsel for the respondent, Mr. A. Viswanatha Sastri urges that on its true interpretation the letter dated July 7, 1837, showed an arrangement for sharing c011ections.", "canonical_name": "A. V. Viswanatha Sastri"}}, {"text": "[1962] 3 S.C.R. 213", "label": "CASE_CITATION", "start_char": 11407, "end_char": 11426, "source": "regex", "metadata": {}}, {"text": "SUPREME couar JIEPOJ:TS [l 9U5]", "label": "PETITIONER", "start_char": 11434, "end_char": 11465, "source": "ner", "metadata": {"in_sentence": "70.1 SUPREME couar JIEPOJ:TS [l 9U5] :; ,;, v.11."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 11844, "end_char": 11848, "source": "regex", "metadata": {"statute": null}}, {"text": "British India", "label": "GPE", "start_char": 12036, "end_char": 12049, "source": "ner", "metadata": {"in_sentence": "Agricultural income' is defined in s. 2 of the Act B as follows: -\n\n\"(J) \"agricultural income\" means-\n\n(a) any rent or revenue derived from land which is used for agricultural purposes and is either assessed to land revenue in British India or subject to a local rate C assessed and collected by officers of the Crown as such: ...... \"\n\nIn Maharajkumar Gopa/ Saran Narain Singh v. Commissioner of Income-tax, Bihar and Orissa('), the facts were that the asscssee had conveyed the greater portion of his estate."}}, {"text": "KUNWAR TRIVIKRAM", "label": "JUDGE", "start_char": 13843, "end_char": 13859, "source": "ner", "metadata": {"in_sentence": "27 I.T .R. l.\n\nC.I.T.\n\nKUNWAR TRIVIKRAM (Sikr'.", "canonical_name": "KUNWAR TRIVIKRAM NARAIN SINGH"}}, {"text": "section 4(3)(viii)", "label": "PROVISION", "start_char": 15539, "end_char": 15557, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(1)(a)", "label": "PROVISION", "start_char": 15868, "end_char": 15878, "source": "regex", "metadata": {"statute": null}}, {"text": "Sastri", "label": "OTHER_PERSON", "start_char": 16067, "end_char": 16073, "source": "ner", "metadata": {"in_sentence": "H Mr. Sastri sought to distinguish those cases on the ground 'that the allowance here varied from year to year."}}, {"text": "Viscount Simon", "label": "OTHER_PERSON", "start_char": 16950, "end_char": 16964, "source": "ner", "metadata": {"in_sentence": "He refers to the following passage from the speech of Viscount Simon in Confmissioner of Inland Revenue v. Wesleyan and General B Assurance."}}, {"text": "Simon", "label": "OTHER_PERSON", "start_char": 17835, "end_char": 17840, "source": "ner", "metadata": {"in_sentence": "Lord Simon."}}, {"text": "Sikrt", "label": "JUDGE", "start_char": 19207, "end_char": 19212, "source": "ner", "metadata": {"in_sentence": "THIVJKRAM (Sikrt, J.) /\\;7\n\nA his estate for a capital sum payable in instalments.", "canonical_name": "Sikri"}}]}