SBRI U. R. MA VJNKURVE

THAKOR MADHA VSINGHJI GAMBHIRSINGH AND

OTHERS

February 24, 1965

lii

[P. B.

GAJENDRAGIDKAR, C. J., M. HIDAYATULLAH, RAGHUBil

DAYAL AND V. RAMASWAMI, JJ.]

Bqmbay 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""

their rights included right to trees under s. 40 of the Code.

The 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.

On 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.

On July 6, 1956 the State Government issued a notification under

1. 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.

Thereafter, 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.

The 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.

B 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

settled 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

OVIL APPELLATE JURISDICTION: Civil Appeal No. 281 of 1962.

Appeal 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.

S. G. Patwardhan and R. If. Dhebar, for the appellants.

S. T. Desai, J. B. Dadachanji, 0. C. Mathur and Ravinder Ntfl'ain, for respondents no. l, 2, 4, 6, 10 and 12.

The 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.

On 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.

The 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~

laring all uncultivated lands in_ the said 39 villages to be forests for

MAVINKURVE • .MADliAVSINGHJI (Ramaswami, J.)

17Y

A 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.

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. 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.

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. 2146 of 1958.

SUPREME

COURT

REPORTS [1965] 3 s.c.li.

The 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.

Section 3 of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, I 953 (hereinafter to be called the Jagirs Abolition Act) states:

"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,-

(i) all jagirs shall be deemed to have been abolished;

(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

Under 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,- .................. ··················· ·················· ············

(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,

shall 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••••••••

MAVINKURVE '!I. MADHAVSINGHJI (Ram,, swami, J.) 181

A Section 8 of the Jagirs Abolition Act states:

"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.

" Section 9 reads:

"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." ·················· ·················· ................. , ........... .

Section 10 provides as follows :

"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.

Section 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.

Section 2(1)(ii) of the J agirs Abolition Act defines the 'Code' to A mean 'the Bombay Land Revenue Code, 1879'.

Section 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

"Occupancy" to mean a portion of land held by an occupant.

Under s. 3(19) of the Code "Occupation" means possession. Section 40 of the Bombay Land Revenue Code provides as follows:

"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.

The 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.

G "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.

"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

MAVL~UBVE v. MADHAVSINGHJI (Ramaswami, J.) 183

A 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

passing 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

Section 41 states:

"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."

Section 65 states :

"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.

But, 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.

The Collector, on receipt of such application,

(a) shall send to the applicant a written acknowledgment of its receipt, and

(b) may, after due inquiry, either grant or refuse permission applied for;

When 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."

184 Ul'REME

COURT REPOR'rS [1965] 3 s.c.R.

Section 68 states that the occupant's rights are cond; tional, and is A to the following effect:

"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;

" .......................................... ; .......... . c

The 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.

In 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

MAVINKl'RVE v. MADHAVSINGHJI (Ramaswami, J.) 185

A 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

''-!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

with the occupants belong ta the State Government and not to the

ocup: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

Go-; crnmcnt to the trees standing on the forest lands.

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. 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

force 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.

In our opinion, the High Court was in error in holding that B

the 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.

Appeal allowed.

SBRI U. R. MA VJNKURVE

THAKOR MADHAVSINGHJI GAMBHIRSINGH AND OTHERS

M. HIDAYATULLAH

DAYAL

V. RAMASWAMI, JJ.

ss. 3, 5 and 9

s. 40

August, 1, 1954

Bombay State

s. 6

July 6, 1956

Indian Forest Act

Bombay Land Revenue Code

s. 5(1)(b)

Supreme Court

s. 9

s. 5(1)(b)

s. 40

s. 9

s. 3

S. G. Patwardhan

R. If. Dhebar

S. T. Desai

B. Dadachanji

C. Mathur

Ravinder Ntfl'ain

D Ramaswami

June l, 1948

State • of Waghach

State of Bombay

June 10, 1948

August 19, 1953

August l, 1954

Bombay

s. 5

s. 34(A)

Indian Forest Act

Ramaswami

July 11, 1958

High I> Court of Judicature at Bombay

Art. 226

March 19, 1958

Jam1ary 14, 1959

s. 5(1)(b)

s. 40

Indian Forest Act

High Court of Judicature at Bombay

Section 3

s. 4

Section 5

I. MADHAVSINGHJI

Section 8

Section 9

Indian Forest Act, 1927

Section 10

Section 11

Section 2(2)

Section 2(1)(ii)

Bombay Land Revenue Code, 1879

Section 3(16)

Section 3(17)

s. 3(19)

Section 40

Section 41

section 32

Bombay Act I of 1865

section 38

Section 65

section 48

Section 68

s. 3

s. 5(l)(b)

s. 3

s. 5(l)(b)

Section 40

s. 40

s. 40

s. 40

S.T. Desai

s. 9

s. 9

Section 3

s. 9

Desai

s. 10

s. 10

force of the Jagirs Abolition Act

January 14, 1959


SRI-LA.SRI SUBRAMANIA DESIKA GNANASAMBANDA

PANDARASANNADHI

STATE OF MADRAS AND ANOTHER

February 10, 1965

[P. B. GAJENDRAGADKAR, C J., M. HIDAYATULLAH,

J. C. SHAH

ANDS. M. S!KRI, JI.]

Madras Hindu Religious and Charitable Endowments Act, 1951, <Mad. Act 19 of 1951), s. 64(4)-0rder under whether quasi-iudicial- Reasonable opportunity, whether necessary.

By 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.

This 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.

"" 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).

HELD: (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]

The 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

Shri Radeshyam Khare & Anr. v. State of Madh11a Pradesh and Ors. [1959] S.C.R. 1440, distinguished.

Iii) 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

(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

CIVIL APPELLATE JURISDICTION: CIVIL APPEAL No. 560 OF 1964.

Appeal from the judgment and order dated August I l , I 961 c of the Madras High Court in Writ Petition No. 295, of 1958.

A .. V. Viswanatha Sastri, R. Thiagarajan for R. Ganapathy Iyer, for the petitioner.

A. Ranganadham Chetty and A. V. Rangam, for the respondents.

D 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.

SUBRAMANIA v. STATE CF MADRAS (Gojemlragadkar, c. J.) 19

A 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-,

ship 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.

F 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~

that 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

('I [1894] I.L.R. 17 Mad. 199.

SUPREME

COURT

RF.~ORTS

(1965) 3 S.C.R.

the 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.

In 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.

It 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. . .

In 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.

Meanwhile, 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.

This 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

1927. 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

<'> [19281 18 :pv. 241.

(•) [1923] 27 L.W. 33.

BUBRAMA.NIA v. STA.TE OF MADRAS (G.1jendrag:ulbr, 0. J.) 21

proceedings 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.

Soon 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.

The Pandarasannadhi of the Dharmapuram Mutt who was then the hereditary Trustee of the Rajan Kattalai instituted C.S. No.

20 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.

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. 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.

Section 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

Act 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).

In 1956, another Amending Act (No. IX of 1956) was passed.

Section 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.

Two 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

SUBRAMANIA v. STATE JF MADRAS (G.; jendrcgarlkJr, 0. J.) 23

A 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.

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. 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).

Chapter 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

that the said notice sht H state the reasons for the action proposed, A

and 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.

Mr. Chetty, however, contends that the position under s.64(4) is entirely different. We have already quoted this provision.

According 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. ·

In 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.

Chetty in support of his argument that s.64(4) is entirely different

('l rrno9J s.c.R. i44o.

SlJBRAMANIA v. STATE OF MADRAS (Gojenilragadkar, C.J.) 25

A 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).

All 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.

That 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.

The 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

new 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

AC1.· 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. ·

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. The appellant would be entitled to his costs throughout. Appeal allowed.

STATE OF MADRAS AND ANOTHER

February 10, 1965

P. B. GAJENDRAGADKAR

M. HIDAYATULLAH,

J.

C. SHAH

s. 64(4)

September 30, 1956

s. 64(4)

s. 64(4)

Supreme Court

s. 64(4)

s. 64(3)

s. 64(4)

s. 64(4)

s. 64(3)

Madras Act XXII of 1959

Madras High Court

V. Viswanatha Sastri

R. Thiagarajan

R. Ganapathy Iyer

A. Ranganadham Chetty

A. V. Rangam

Gajendragadkar

s. 64

Charitable Endowments Act

Madras Act XIX of 1951

Tanjor District

Hindu Religious Endowments Act, 1926

Madras Act II of 1927

Chapter VI-A of the said Act

4th August, 1956

High Court of Madras

Gojemlragadkar

Thanjavur Dist

Thyagarajaswami

Rajan Kattalai

Ulthurai Kattalai

Abisheka Kattalai

Annadanam Kattalai

Thanjavur

Thanjavur district

Tirunelveli

Pandarasannadhi

Thiruvarur

Kattalai Thambiran

the Code of Civil Procedure

Kattalaidar

Madras Hindu Religious Endowments Board

Madras Act IX of 1937

May 25, 1937

July 12, 1937

July 30, 193 7

Dharmapuram Mutt

August 1, 1940

January 26, 1950

Religious Endowments Act

September 30. 1951

Section 5

Section 64

Section 103(c)

Section 2

jendrcgarlkJr

September 30, 1961

August I I. 1961

Viswanatha Sastri

Sastri

Raganathan Chetty

Chapter VI of Act

sections 63

Section 63(1)

Section 64(3)

Chetty

ss. 53A and 57

Madras Act XXII of 1959

January l, 1960

Section 72(7)

s. 64

August 4, 1956


A COCHIN STATE POWER AND UGBT CORPORATION LTD.

STATE OF KERALA

February 25, 1965

B (K. StmBA RAo, J.C. SHAH AND R. S. BACHAWA'l', JJ.)

Indian Electricity Act, 1910, s. 6(1)(2) and (4)-Scope of.

The 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.

In 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

i'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.

In the appeal to the Supreme Court, the appellant contended, inter alia, that the State Electricity Board having duly elected under

1. 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

fue 1910 Act.

HELD: 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).

[193 E-F]

CIVIL APPELLATE JURISDICl'ION: Civil Appeal No. 897 of 1963.

Appeal from the judgment and order dated October 4, 1962 of the Kerala High Court, Ernakulam, in Writ Appeal No. 17 of 1962.

A.V. Viswanatha Sastri, Arun B. Saharaya and Sardar Baha- A dur, for the appellant.

V. P. Gopalan Nambiar, Advocate-General for the State of Kerala and V. A. Seyid Muhammad, for the respondent.

The Judgment of the Court was delivered by

Bachawat, 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.

The 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

1910 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:

"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."

Clause 15(a) of the license held by the appellant provides:

"The option of purchase given by Section 7, sub-section (i) of the Regulation shall first be exercisable on the

expiration 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."

Section 7(1) of the Indian Electricity Act, 1910 corresponds to s. 7(i) of the Regulation, that is to say, of the Cochin Electricity.

Regulation. 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 ·

1'0\VER AND LIGHT CORP. ~. STATE (JlaclllJlllGt, J.) 1~9

A giving the twc;> years' notice of the election to p.urchasc on the ex

piry 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.

By 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,--

(a) in the case of a license grantd before the commencement of the Indian Electricity (Amendment) Ac~.

1959, on the expiration of each such period as is specified in the license: and

Cb) 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;

have 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.

(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.

0) 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.

f4l 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

L/B(D!~~CI-14

190 SUl'BEME CQURT REl'OllTa (1960 J 3 8.0.ij.

ed by the State Government the State Electricity Board shall be deemed to have elected not to purchase the un. dcrtaking,

(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

(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,

(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

local 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.

(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

On 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,

l960. 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,

1961, a learned single Judge of the High Court passed the follow ing order:

"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

H 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-

POWER AND LIGHT CORP. v. STATE (Bachawat, J.)

ing 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."

The 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 :

"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.

G 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.

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.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

exercised, 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;

(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.

On 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.

We think that the fourth contention of Mr. Viswanatha Sastry is sound, and should be accepted.

Assuming, 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

chould be allowed, and in this view of the matter, we do not think it necessary to express any opinion on the other contentions urged

POWER AND LIGHT CORP. v. oTATE \BachuWJt, J.) l\)3

before 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.

Sub-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.

D 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

its 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,

1960. 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.

In 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.

Appeal allowed.

STATE OF KERALA

February 25, 1965

B (K. StmBA RAo, J

C. SHAH

Indian Electricity Act, 1910

s. 6(1)(2)

Kerala

December 2, 1960

October 24 and

October 29, 1959

Electricity Act

November 20, 1959

Supreme Court

s. 6(2)

s. 6(1)

s. 6

s. 6

Deceinber 2, 1960

s. 6(4)

s. 6( 4)

s. 6(4)

CIVIL APPELLATE JURISDICl'ION

Kerala High Court, Ernakulam

A.V. Viswanatha Sastri

Arun B. Saharaya

Sardar Baha-

V. P. Gopalan Nambiar

V. A. Seyid Muhammad

Bachawat

State of Kerala

s. 6

Ernakulam

Cochin

Cochin Government

Travancore-Cochin

Union of India

Electricity Act

Part-B States Laws Act, 1951

Travancore

March 31, 1957

Kerala Electricity Board

s. 71

Indian Electricity Act, 1910

Indian Electricity Act, 1910

s. 7

Clause 15(a)

Section 7

Section 7(1)

Indian Electricity Act, 1910

s. 7(i)

cl. 15(a)

s. 7

Indian Flectricity Act, 1910

s. 7(4)

Electricity Act

Sl)ptember 5, 1959

Section 6

Indian Electricity Act, 1910

section 7A

October 24, 1959,'llthe

November 14, 1960

High Court of Kerala

Kerala State Electricity Board

December 20,

1961

Krishnaswami Iyengar

Kerala High Court

October 4, 1962

Arts. 133(l)(a) and 133(l)(c)

Vishwanath Sastry

s. 7(4)

Indian Electricity Act, 1910

Indian Electricity Act, 1910

s. 7(4)

5, 1959

V.P. Gopalan Nambiar

Indian Electricity Act, 1910

s. 7

December 2, 1970

September 5, 1959

Viswanatha Sastry

Section 6

December 3,

1960

le State Electricity Board


BIDKARI

STATE OF UITAR PRADESH February 25, 1965

[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.

The 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. .

HELD: (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

(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.

Everyone is presumed to know the natural consequences of his act.

Similarly 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

(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.

This 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]

Dahabhai Chhaganbhai Thakkar v. State of Gujarat, [19641 7 S.C.R. 361, explained and affirmed.

BBIKARI II. STATE (ilffldholJ&at, J.) Hiil

A CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

263 of 1964.

Appeal 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.

S. P. Varma, for the appellant.

0. P. Rana, for the respondent..

The 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

0 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.

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. 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,

P.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.

!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

L/B(D)2SCI-16

which 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.

Section 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 :

"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 : -

"A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the Act.

The 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

(') [1964] 7 S.C.R. 361.

BHIKARI v. STATE (Mudholkar, J.) 197

A 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

secution 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: -

"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."

and contends that according to the decision of this Court the legal position is otherwise.

This 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

offence with the requisite mens rea. Once that is done a presump- A tion that the accused was sane when he committed the offence

would 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

Mr. 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.

It 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.

BHIKAI\I V. STATE (MwiJwl/car, J.) 199

Mr. 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 ;

"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.

"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.

The 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.

Apart 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

"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.

Further, 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

the 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.

So, 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."

We 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

of 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.

Appeal dimiissed.

BIDKARI

STATE OF UITAR PRADESH

February 25, 1965

K. N. WANCHOO, J.

R. MUDHOLKAR ANDS. M. SIKRI

s. 84

s. 105

s. 302

Indian Penal Code

Supreme Court

s. 105

Indian Evidence Act

Dahyabhai Chhaganbhai Thakkar

Section 84

Indian Penal Code

s. 105

s. 105

s. 105

Allahabad High Court

S. P. Varma

P. Rana

Mudholkar

ss. 302, 307 and 324

Indian Penal Code

s. 302

Mangali

Mangali

February 25, 1957

Babu Ram

Ram Ratia

Punna

Baijnath

Dulli

Ladda Kewat

Hiralal

Lachhminia

Punna. Hiralal

Hiralal

October 11, 1957

ss. 87 and 88

Code of Criminal Procedure

February 1, 1963

Varma

s. 342

Code of Criminal Procedure

Section 84

Penal Code

IV of the Penal Code

s. 105

Indian Evidence Act, 1872

Penal Code

[1964] 7 S.C.R. 361

Section 84

Indian Penal Code

s. 105

s. 84

Indian Penal Code

s. 105

Dulli

Simi- G larly

Vanna

Bhaiva Lal

Bhaiya Lal

Hira Lal

s. 84

Indian Penal Code